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'J - - 



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'^^sJ^'/ZV^/ 



Vol. XXXiri.— Ind. Ap. 



tttH 



INCORPORATED COUNCIL OF LAW REPORTING 



ENGLAND AND WALES. 



iKembers of t(re (tonntiU 

Chairman — C. M. Warmington, Esq., K.C. 
Viee-Chairman — F. A. Bosanqubt, Esq., K.C. 

EX' OFFICIO MEMBERS. 

Sib John Lawson Walton, M.P. . . . Attornby-Gbnbral. 

Sir William S. Eobson, M.P Solicitor-Gbnbral. 

Hbnry Attlbb, Esq., President of the Law Society. 



ELECTED MEMBERS. 

P. Ogdbn Lawrencb, Esq., K.C. 

A. E. KiRBY, Esq. 

F. A. Bosanqubt, Esq., K.C. 

W. PiCKFORD, Esq., K.C. 

C. M. Warmington, Esq., K.C. 

C. C. Scott, Esq. 

J. C. Lbwis Coward, Esq., K.C. 

H. E. Duke, Esq., K.C. 

W. English Harrison, Esq., K.C., of the 

Middle Temple. 
EoBBRT F. Norton, Esq., K.C, of Lincoln's 

Lin. 

Sir John Hollams, Knt. (Firm — Messrs. 

HoUams, Sons, Coward & Hawksley). 
E. J. Bristow, Esq. (Firm — Messrs. 

Wilson, Bristows & Carpmael). 



Lincoln's Inn. 
Inner Temple. 
Middle Temple. 

Gray's Inn. 

Appointed by the 
Council of Law 
Eeporting on the 
nomination of the 
General Council 
of the Bar. 

The Law Society., 



Secretary P. Noblb Fawcbtt, Esq., 10, Old Square, 
Lincoln's Inn, London, W.C. 



THE 



LAW REPORTS. 



Under the Superintendence and Control of the 

nrcoBPO&ATED comrcn. of law BEPOBTnrG fob ehglahb akd wales. 



Inirian Jlpp^als: 

BEING 

CASES 

IN 

THE PRIVY COUNCIL 

ON APPEAIi FBOM 

THE EAST INDIES. 



Editor— Sir FEEDERICK POLLOCK, Bart., Barrist^i^Latir. 
Assistant Editor — A. P. STONE, Barrtster-at-Lai^ri J' J'- 

Reported by HERBERT COWELL, [Zll {::][ 

OF THB HIDDL1E TEMPLK, BARRISTER-AT-LAW. - S'J'S^^ 



VOL. XXXIII— 1905-1906. ..,;- ---^ 

LONDON: ^^-... 

^rtnt^ir f0r tire (Ronnal of Itahi Jleporting -^-y-: 

By BRADBURY, AGNEW, & CO. Ld., of 10, BOUVERIE STREET,-! E:0., 

By THE COUNCIL at 10, OLD SQUARE, LINCOLN'S INN, W.C. 



BRADBURY, AONXW, & CO. LD., PRINTERS, 
LONDON AND TONBRIDGS. 



^"Sias 



• • • '• , 

• • • • » • 



• • • 



LIST 

OF THE 

JUDICIAL COMMITTEE 

OF 

HIS MAJESTY'S MOST HONOURABLE 

PRIVY COUNCIL, 

BSTABLISHBD BY THE 8rD & 4tH WiLL. IV., 0. 41, 

FOR HEARING AND REPORTING ON APPEALS TO HIS MAJESTY 
IN COUNCIL. 



1906. 



Ex-Lord 

Presidents. 



Lord Loreburn, Lord Chancellor, 

Earl of Halsbury. 

Earl of Crewe, Lord President. 

Duke of Devonshirey 

The Marquis of 
JRtpon, 

Earl Spencer, 

Earl of Rosebery, 

Marquis of London- 
derry, 

Lord Ashbov/me. 

Lord Macnaghten. 

Lord Field. 

Lord Davey. 

Lord James of Hereford. 

Lord Brampton. 



Lord Robertson. 

Lord Lindley. 

Lord Alverstone. 

Lord Dunedin. 

Lord Atkinson. 

Sir Edward Fry. 

Sir Samuel Way, Bart. 

Sir Henry De Villiers. 

Sir Henry Strong. 

Sir i^ord iSTori/i. 

Sir Samuel Griffith. 

Sir Andrew Scoble. 

Sir Arthur Wilson. 

Sir Jbfen Bonser. 

Sir Henri Elzear Taschereau. 

Sir ^Z/red TTiiZ^. 



^wd others who being present or past Lords Justices of Appeal are members of the Privy 
Council (44 Vict, c, 3), or who being members of the Privy Council hold or have held high 
judicial ojffices (oO tfe 51 Vict, c, 70). 



EERATA. 



On page 185, line 10, delete v, after Lulloobhoy. 
On page 194, last line, for 3 Bomb, read 5 Bomb. 



A TABLE 



OF THB 



NAMES OF THE CASES EEPOETED 



IN THIS VOLUME. 



PAGE 

Bai Eesserbai v. Hansraj Morarji 176 

Chandrasangji Himatsangji v. 

Mohansangji Hamirsangji . 198 

Chaadhri Mehdi Hasan v, 

Muhammad Hasan . . 68 

Dhanipal Das v. Baja Maneshar 
Bakhsh Singh . . .118 

Gangamoyi Debi v. Troilackhya 
Nath Chowdhry ... 60 

Hemchand Devchand v. Azam 
Sakarlal Gbhotamlal ; Taluka 
of Eotda-Sangani v. State of 
Gondal 1 

Ismail Massajee Mookerdam v, 
HafizBoo .... 86 

Jawahir Singh v. Someshar Datt 42 

Kannepalli Suiyanarayana v, 
Pucha Yeukata liamana . 145 



Eanwar Sanwal Singh v, Bani 
Satrapa Eunwar . 



FAOB 



Maharajah Bahadur Sir Jotindra 
Mohan Tagore v. Srimati Bibi 
Jarao Enmari 

Malik Ahmad Wall Ehan v. 
Musatmmat Shamsi Jahan 
Begam 

Maniram v. Seth Rupchand 

Manohar Lai v. Jadn Nath Singh 

Monlvi Mahomed Ikramul Hua 
V. Wilkie ; Monlvi Mahomed 
Ikramul Huq, Ex parte 

Municipal Officer, Aden v. Hajee 
Ismail Hajee Allana 

Musammat Lali v, Murli Dhar . 

Mutsaddi Lai v, Eundan Lai 



53 



Laliteswar Singh v. Mohunt 
Ganesh Das . . . .184 



30 



81 
165 
128 



106 

88 
97 
55 



Ramanathan Chetti v, Muru- 
gappa Chetti . . .139 



NAMES OP THE OASES EEPOBTED. [Vol. XXXin. 



Sheikh Hub Ali v. Wazir-un- 
Nissa 

Sri Raja Yenkata Narasimha 
Appa Bao Bahadur Zemindar 
Garu V. Sri Raja Sobhanadri 
Appa Rao Bahadur Zemindar . 



PAGE 



107 



46 



PAGE 

Thakur Tirbhuwan Bahadur 
Singh V, Raja Rameshar 
Bakhsh Singh . . .156 

Vasudeva Modeliar v. Shadagopa 
Modeliar . . . .132 



TABLE OF CASES CITED. 



Amirthayyan v. Ketharamayyan . 
Amrito Lai Dutt v. Sumomoye 

Dasi . . . . 

Assanulla Khan Bahadur v, Tirtha- 

bashini .... 



A. 

Ind. L. E. 14 Madr. 65 
' L. E. 27 Ind. Ap. 128 

I Ind. L. E. 22 Oalc. 680 



PAGE 

. 148 
. 148 

. 33 



B. 



Bachha Jha v. Jugman Jha 
Banner v, Berridge . 
Barot Naran v, Barot Jesang 
Basanta Kumari Debya v. Ashutoeh 

Chackerbutti 
Basdeo v, Gopal 
Bennet v. Bennet 
Beynon v. Cook 

Bhagwan Sahai v. Bhagwan Din . 
Bhagwan Singh v. Bhagwan Singh. 
Bijoy Gopal Mukerji v, Nibratan 

Mukerji . . . . 

Bireswar Mookerjiv.ArdhaChunder 

Eoy . . . 

Brij Indra Bahadur Singh v. Janki 

Kunwar .... 



Ind. L. E. 12 Calc. 348 
18 Ch. D. 254 . 
Ind. L. R. 25 Bomb. 26 

Ind. L. E. 27 Oalc. 67 

Ind. E. E. 8 Allah. 644 
43 L. T. 246, n. . 
L. R. 10 Ch. 389 . 
L. E. 17 Ind. Ap. 98 
L. E. 26 Ind. Ap. 153 

Ind. L. E. 30 Calc. 990 
L. E. 19 Ind. Ap. 101 
L. E. 5 Ind. Ap. 1 



183, 185, 195 

168, 174 

. 160 

. 33 

. 159 
. 121 
. 121 
. 112 
100, 103 

. 160 

100, 105 

. 159 



c. 



L. E. 4 A. & E. 59 
12 Moo. Ind. Ap. 350 



Charkieh, The 

Chowdhry Puduni Singh v, Koer 

Oodey Singh 

Chunilal v. Itchanund . . (1893) P. J. 88 . 

Collector of Madura v, Moottoo (12 Moo. Ind. Ap. 397 

Eamalinga Sethupathy . . ) 



. 10 

. 148 

. 180 

148, 149, 163, 

182 



D. 



Damodhar Gordljan v. Deoram ) i a n 330 
Kanji , "' ' . . . ) 

Daeharathi Kuiidu v. Bipin Behari 
Kundu 



') 



Ind. L. E. 32 Calc. 261 



6, 8, 25 
r 185 



xu 



TABLE OP OASES OITED. 



[Ind. Ap. 



Earl of Aylesford v, Morris . 
East India Co. v. Syed Ally 
Empress v, Kesliub Mahajun 



E. 



L. R. 8 Oh, 484 . 
7 Moo. Ind. Ap. 555 
Ind. L. B. 8 Oalo. 985 



PAGE 

. 121 
. 16 



P. 



^ D^f^ ^^^ ^*** ""* Bajeswar j j^ ^ ^^ j^^ ^^ ^^ 
" • -- -• .' Ind L. E. 21 Bomb. 159 



Fanyamma v, Man jay a 
Fink V, Buldeo Dass 
Forbes v. Ameeroonissa Begum 
Forbes v, Meer Mahomed . 
Fry V. Lane . 



Ind. L. E. 26 Oalc. 715 
10 Moo. Ind. Ap. 340 
13 Moo. Ind. Ap. 438 
40 Oh. D. 312 . 



98, 100, 104 

. 159 
. 168 
. 112 
48,49 
. 121 



a. 



Ganesh v, Gyapu 

Gbtrland v. Beverley . . . 

Qhandarap v, Laomnan Singh 
Gojabai v, Shrimant Meloji Eaje 

Bhosle .... 
Gossain Dass Ohunder v. Issur 

Ohiindemath 
Gk>ssamee Sree Greedharreejee v. 

Eumanlolljee Gossamee . 
Gonmath Ohowdhree v, Amopooma 

Ohowdhrain 



Ind. L. E. 22 Bomb. 606 167, 169 

9 0h. D. 213 . . .180 

Ind. L. E. 10 AUah. 485 . 159 
Ind. L. E. 17 Bomb. 114 178, 181, 182, 
184, 187, 193 

Ind. L. E. 3 Oalc. 224 . . 62 

L. R 16 Ind. Ap. 137 . . 142 

(1852) S. D. A. Beng. 332 148, 151 



Haidar Ali v, Tassaduk Easul Ehan 
Hajee Syud Mahomed v. Ashru- 

foonnissa .... 
Hakim Muhammad Ikramuddin v. 

Naiiban .... 
Hari Lai v, Bai Eewa 
Hasan Ali v, Nazo . 
Himsraj v, Bai Monghibai . 
Hnrsee Mahapatro v. Dinobimdo 

Patro 



■] 



L. E. 17 Ind. Ap. 82 . 


. 161 


Ind. L. E. 5 Oalo. 759 . 


167, 169 


L. R. 25 Ind. Ap. 157 . 


. 88 


Ind. L. E. 21 Bomb. 376 
Ind. L. B. 11 Allah. 456 
7 Bomb. L. R. 622 


. 159 
. 88 
. 185 


Ind. L. E. 7 Oalc. 523 . 


. 7 



Ingle V, Richards 



I. 

28 Beav. 366 



168 



Jasadamba Ohowdhrani v, Dakhina ) L. R. 13 Ind. Ap. 84 

Mohun . . . . ) 

Jagannath v. Run jit Singh . . Ind. L. R. 25 Oalc. 354 

Jogeshwar Roy v. Raj Narain Mitter Ind. L. E. 31 Oalc. 195 
Joykishen Mookerjee v. Collector of ) i^. -w-^^^ t^a a^ ^a 

h^t Burdwaii \ . , j 1^ ^^^ 1°^- ^P- ^« 



156, 158, 160, 

163, 164 

159, 162 

. 169 

. 49 



Vol. XXXin.] TABI^B OP CASES CITED. 



xiii 



Kamini Soondari Chowdhrani v. 
Kali Prosunno Qhose 

KaruDabdhi Gfanesa Batnamaiyar v. 
Qopala Batnamaiyar 

Katliaraa Natchiar v. Dorasinga 
Tevar .... 

Kolodeep Narain Singh v. Mahaheo 
Singh .... 

Kooldeep Narain Singh v. Govern- 
ment of India 

Krishna v. Shripati . 





PAGE 


L. E. 12 Ind. Ap. 216 . 


. 121 


L. E. 7 Ind. Ap. 173 


. 149 


L. R 2 Ind. Ap. 169 


. 161 


6 S. W. E. 199 . 


. 48 


14 Moo. Ind. Ap. 247 . 


. 49 


Ind. L. E. 30 Bomb. 333 
12 Bomb. H. C. 66 


182, 189 
. 182 



Ladkuvarbai t-. Ghoel Sliri Sarsanji ) ^ ^^^ ^ ^ O. 0. J. 160 . 7, 11 
Irratabsangji . . . t ' 

' " ' • . Ind. L.E. 22 Bomb. 996 147,148,149 

. Ind. L. E. 14 Oalc. 401 . . 159 

. Ind. L. E. 24 Allah. 196 . . 161 

. Ind. L. B. 9 Allah. 74 . . 121 

Lallubhai Banubhai v. Mankuvarbai Ind. L. E. 2 Bomb. 388 .182, 183, 192 

^ L^Xwar ^^""^^^ ""' ^""^y* j L. E. 22 Ind. Ap. 61 . . 161 

Lnlloobhoy Bapoobhoy v. Cassibai . L. E. 7 Ind. Ap. 212 . . 186 



Lakshmibai v, Eajaji 
Lala Parbhulal v, Mylne 
Lali V, Murlidhar . 
Lalli V. Bam Prasad. 



M. 



Madho Singh v, Kashi Bam 

Mahadevi v, Vikrama 

Maharaja Jagadindra Nath Boy v, 
Hemanta Kumari Debi . 

Maharajah Madhava Singh ^'. Secre- 
tary of State for Indian Council . 

Maharajah Pertab Narain Singh v. 
Subho Koer 

Mancharam v, Pranshankar 

Manilal Bewadat v, Bai Bewa 

Mathura Das v, Bhikhan Mai 

Meer Usdoollah v, Mussumat Beeby 
Imaman .... 

Mohandas v. Krishnabai 

Mohendrolall Mookerjee v. Booki- 
ney Dabee. 

Mohesh Narain v, Taruck Nath 

Mohmnmud Zahoor Ali Khan v, 
Mussumat Thakooranee Entta 
Koer . . . 

Moosabhai Mahomed Sajan y, Ya- 
coobbhai Mahomed Sa^an 

Muhammad Yusuf-ud-din v, Queen- 
Empress .... 

Mungal Pershad Dichit v, Grija 
Kant Lahiri Chowdhry . 

Mussamat Bhagana v. Bar j ore 
Singh , » f » 



Ind. L. E. 9 Allah. 228 
Ind. L. E. 14 Madr. 366 

I L. E. 31 Ind. Ap. 203 
I L. E. 31 Ind. Ap. 239 

|L. E. 4 Ind. Ap. 228 

Ind. L. E. 6 Bomb. 298 
Ind. L. E. 17 Bomb. 758 
Ind. L. E. 19 AUah. 16 

I 1 Moo. Ind. Ap. 19 
Ind. L. E. 6 Bomb. 597 

I Coryton's Bep. 42 
L. E. 20 Ind. Ap. 30 

.llMoo. Ind. Ap. 468 

Ind. L. R 29 Bomb. 267 
L. E. 24 Ind. Ap. 137 
L. E. 8 Ind. Ap. 123 
Oudh Cases^ vol, i. p. 3Q 



• 


121 
48 


. 


142 


. 


12 


, 


161 


100, 


142 
177 
104 


• 


70 


183, 


194 


• • 


148 


168, 


160 


121, 


124 


. 


168 




17 


. 


135 


t 


m 



XIV 



TABLE OF CASES CITED. 



[Ind. App. 



Mussamat Dur^^a Choudhrain v. ) t -d i»t t«^ a^ ioo 
Jawahir Singh Choudhri . . | L. E. 17 Ind. Ap. 122 

^Bakik Ea^^^"^"" ^^^^^ t^. Bai K^ ^^ j^^ ^p ^3^ 
Mutsaddi Lai v. Kundan Lai . L. B. 33 Ind. Ap. 55 



N. 



Nahalohand Harakchand v, Hem- 

chand .... 
Naiusayya v, Yenkatagiri . 
Narayanasami Pillai v, Abhayi Salt 
Narayranasami v. Kuppusami 
Natthu Singh v, Gulab Singh 
Nawab of Surat*8 case 
Nawab TJmjad Ally Khan v, Mus- 

sumat Mohumdee Begum 
Neelanund Singh v, Surwan Singh . 
Nevill V, Snelling 
Nidhoomoni Debya v, Saroda Per- 

shad Mookerjee . 
Nilmani Bumick v. Puddo Lochan 

Chuokerbutty 



Ind. L. R. 9 Bomb. 31 

Ind. L. E. 23 Madr. 262 
Ind. L. E. 28 Madr. 351 
Ind. L. E. 11 Madr. 43 
Ind. L. E. 17 Allah. 167 
9 Moo. P, C. 88 . 

11 Moo. Ind. Ap. 517 

5 S. W. E. 292 . 
15 Ch. D. 679 . 

L. E. 3 Ind. Ap. 253 



PAGE 

. 168 

. 182 
. 148 



185 

49 
168 
148 
159 

10 

70 

49 
121 

99, 105 



[ Beng. L. R supp. vol. F. B. 379 . 136 



Padajirav v, Eamrav 

Parasara Bhattar v, Eangaraja 

Bhattar .... 
Parvathi Ammal v. Saminatha 

Gurukal .... 
Ponnammal v. Sundaram Pillai 
Prance v. Sympson . 



Ind. L. E. 13 Bomb. 160 
Ind. L. E. 2 Madr. 202 . 

Ind. L. E. 20 Madr. 40 . 

Ind. L. E. 23 Madr. 499 . 
1 Kay 678 



Purmauund Bhuttacharuj v. Ooma- ) ^ q i -p^^ qiq 
kant Lahoree . . . j ^ »el. ±iep. dl» . 



. 159 
. 148 

158, 160 

. 199 
168, 174 

. 148 



Queen v. Burah 

Queen -Empress v, Abdul Latif 



Q. 

3 A. C. 889 . . .9 

Ind. L. E. 10 Bomb. 186 . 11 



E. 



Eachava v, Kalingapa 

Eadha Pershad Singh v. Budhu 

Dashad 
Eahi V. Qovind Yalad Teja 
Eai Balkrishna v, Mussumat 

Masuma Bibi 
Eaja Leelanund Singh v. Lakhputtee 

Makorain .... 
Eajah Leelanund Singh v. Thakoor | j^ ^ j^^ . ^g^ 

Munoorunjun Smgh . . ) r » rr 

^ja Mokham Singh v, Eajah Eup 

Singh .... 
Eajah Tasadduq Easal v, Manik 

Cfett^^d , , , , 



Ind. L. E. 16 Bomb. 716 
^ I Ind. L. E. 22 Calc. 940 . 
Ind. L. E. 1 Bomb. 97 . 
|L. E. 9 Ind. Ap. 182 

' 22 S. W. E. 231 . 



I L. E. 20 Ind. Ap. 127 
' L. E. 30 Ind. Ap. 35 



. 185 

. 48 

. 184 

121, 124 

. 199 

46, 49, 52 

. 121 

. 54 



Vol. XXXni.] TABLE Oi* CASfeS CITEC. 



xV 



Bajah Yellanki Yenkata Krifihna 

Bow V. Yenkata Bamalakahmi 

Narsayya .... 
Bamasawmi Aiyan v. Yencatara- 

niEiiyan .... 
Bam Oliaiidra Mukerjee v, Banjit 

Singh .... 
Bamsoondur Singli v. Surbanee 

Dossee .... 
Eanee Khujoorroonissa v, Bouahiin 

Jehan .... 
Bani Anund Koer v. Court of Wards 
Bani Janki Kunwar v, Baja Ajit 

Singh .... 
Bani Leki*aj Kuar v, Mahpal Singh 
Batnamasari v. Akilandanunal 
Biver Steamer Co., In re, Mitchell's 

claim .... 







PAGE 


L. B. 4 Ind. Ap. 1 




. 149 


L. B. 6 Ind. Ap. 196 




147, 148 


Ind. L. B. 27 Calc. 242 


.159, 


160, 161 


22 S. W. B. 121 . 




. 154 


L. B. 3 Ind. Ap. 291 




70, 76 


L. B. 8Ind. Ap. 14 




. 161 


L. B. 14 Ind. Ap. 148 




. 89 


L. B. 7 Ind. Ap. 63 
Ind. L. B. 26 Madr. 291 


.101, 


112, 199 
. 162 


L. B.6 0h. 822 . 


.165 


168, 172 



s. 



Sadhusaran Singh v, Panch deo Lai 
Sajjad Ahmad Kha.n v. Kadri Begam 
Samar Dasadh v, Juggulkishore 

Singh .... 
Sanniyasi Bazu v. Zemindar of Sahu 
Satischunder Mukhopadhya v, 

Mohendsolal Tathuk 
Sayyid Mansur Ali Khan v. Sarju 

Prasad .... 
Secretary of State for India in 

Council V. Kamachee Boye Sahaba j 
Secretary of State for India v, 

Kiishnamoni Gupta 
Shamchunder v. Narayni Dibeh 
Shrivanas v. Hanmant 
Sittaya v, Bangareddi 
Sreemutty Dossee v. Tarrachum 

Koondoo .... 
Sri Balasu Gurulingaswami v. 

Bamalakshmamma 
Sri Baghunada v. Sri Brozo Kishoro 
Sri Baman Lalji Maharaj v, Sri 

Gopal Lalji Maharaj 
Sukhamoni Chowdhrani v. Ishan 

Chunder Boy 
Superunddhwaja Prasad v, Garuraxi- 

dhwaja Prasad 
Surendra Keshav Boy v, Doorga- 

sundari Dassee 
Surendra Nandan v. Sailaja Kant 

Das Mahapatra 



Ind. L. B. 14 Calc. 1 . 
Ind. L. B. 11 AUah. 1 . 


136, 137 
. 70 


Ind. L. B. 23 Calc. 366 . 


. 199 


Ind. L. B. 7 Madr. 268 . 


. 49 


Ind. L. B. 17 Calc. 849 . 


. 199 



L. B. 13 Ind. Ap. 113 
7 Moo. Ind. Ap. 476 

L. B. 29 Ind. Ap. 104 

1 S. D. A. Beng. 20t) 
Ind. L. B. 24 Bomb. 260 
Ind. L. B. 10 Madr. 259 

Bourke's Bep. A. 0. C. 48 

L. B. 26 Ind. Ap. 113 
L. B. 3 Ind. Ap. 154 
Ind. L. B. 19 AUah. 428 

L. B. 25 Ind. Ap. 95 

Ind. L. B. 15 Allah. 147 

L. R 19 Ind. Ap. 108 . 

Ind. L. B. 18 Calc. 385 . 



. 112 
. 15 

. 49 

. 148 

158, 160, 162 

168, 173 

. 148 

. 148 
. 149 
. 142 

. 169 

. 100 

. 148 

149, 153 



Taylor v, Barclay 
Teeloke Chundur Baee v. Gyan- 
chunder Baee 



2 Sim. 213 
I (1847) S. D. A. Beng. 554 



10 
148 



xvi Table of oases oiTEt). [Ind. Ap. 

FAQE 

Thompson, In re . . .6 Beng. L. E. 180 . .40 

Tiiocam Panachand v. Bombay, &c., ) j^^ j^ ^ ^ ^^^ 244 . .11 

Ky. Uo. . . . . ) 

Trimbak v, Lakshman . . Ind. L. E. 20 Bomb. 495 . 142 

Tulshi Bam v, Behari Lai . . Ind. L. E. 12 AUali. 328 . 161 

U. 

TJman Parsbad v. Qandharp Singb . L. B. 14 Ind. Ap. 127 . 100, 102 

Umrao Begam v. Irsbad Husain . L. E. 21 Ind. Ap. 163 . 63, 54, 55 

V. 

Viwudw Anant v. Earn Krishna ) j^^ j^ ^ ^ ^^^ 39^ jgg 

Bao Nazayan . . . ) 

Yasudeva Padbi Kbadanga Gkuni j 

V, Maguni Devan Baksbi Maba- i L. E. 28 Ind. Ap. 81 . .62 

patniln Gam . . .1 

Veerapermall Pillai v. Narrain Pillai 1 Str. 91 . . . . 147 

Velu Filial v. Gbose Mabomed . Ind. L. E. 17 Madr. 293 . 167, 169 

^TS^n^ir"^*'"' ^^^^ '': j ^^- ^- ^- 21 ^^^' 263. . 185 

Yijiarangum v. Laksban . . 8 Bomb. H. 0. E. 244 . . 17 

w. 

Wagbek Eajsanji v, Sbekb Mas- U -^ ^^ i^^. Ap. 89 . . 121 



ludin 

Webster v. Oook . . . ' L. E. 2 Ob. 642 . . . 121 

Wilton & Oo. V. Osbom . . [1901] 2 K. B. 110 . . 121 



Zemindar of Bamnad v. Periana- W . r. j j^^. Ap. 209 . , 199 

yagum . • . . ) *^ 



CASES 



IN 



THE PRIVY COUNCIL 



ON APPEAL FBOH 



Zbc Bast Jnbtes^ 



HEMCHAND DEVCHAND Plaintiff; J. c* 

A17D 1905 

AZAM SAKARLAL CHHOTAMLAL .... Defendant. Jul^.ii, 

20; 
FEOM THE COUET OF THE AGENT TO THE GOVEBNOE, J>eo^S. 

KATHIAWAE. BOMBAY PEESLDENCY. 

AND 

TALUKA OF KOTDA-SANGANI ..... Plaintiff; 

AND 

STATE OP GONDAL Defendant. 

FEOM THE GOVEENOE OF BOMBAY IN COUNCIL. 

Right of Appeal to the King in Council — Appellate Orders of the Oovernor of 
Bombay in Council — Decrees of Courts of Political Agents in Kathiawar — 
British Political Tribunals in a Foreign State — Courts established by the 
Eocecutive for Political Purposes — Suits to enforce and redeem a Mortgage, 

The intention of the British Goyemment is and always has been that 
the jurisdiction exercised in connection with the province of Kathiawar 
should be political and not judicial in its character ; the ultimate appeal 
being to the Secretary of State for India in Council. Kathiawar is not as 
a whole within the King's dominions. It has been controlled by the 
British Indian Government for a very long period in different degrees 



* Present : The Loed Chanoellob (Earl of Halsbury), Lord Mao- 
HAOHTEN, Lqbd Dayey, Loed James OF Hebbfobd, Loed Eobeetson, 
and Sib Abthub Wilson. 

Vol. XXXTTT, B 



INDIAN APPEALS. 



[L. E. 



J.O. 
1906 

Hemghand 
Dbvchand 

V, 
AZAM 

Sakablal 
Chhotam- 

LAL. 



in its various component States, but has never been treated as British 
territory or as subject to the laws in force in the Bombay Presidency 
or enacted by the British Indian Legislature. Nor has there been any 
authoritative assertion of territorial sovereignty therein. A system of 
judicial administration has been established therein, not by legislation, 
but by orders of the Executive Government, the judicial officers being 
Assistant Political Agents, with an appeal to Political Agents to deal with 
cases both political and civil. In the former cases their functions are 
"diplomatic and controlling," deciding as they ** think proper"; in 
both the intention of the Gk)vemment is and has been that the jurisdiction 
exercised should be guided by policy rather than by strict law : — 

Held accordingly in two suits, one classed as civil to enforce a 
mortgage, and the other classed as political to redeem a mortgage, 
brought in the Courts of Assistant Political Agents in Eiithiawar, that 
an appeal does not lie from appellate orders therein passed by the 
Governor of Bombay in Council to His Majesty in Coimcil. 

These two appeals, brought by special leave, were heard 
together. The first was from orders (February 22, September 8, 
and September 22, 1902) of the Court of the Political Agent, 
Kathiawar, now called the Court of the Agent to the Governor 
in Kathiawar. The second was from an order (January 14, 1904) 
of the Governor in Council of Bombay rejecting the appellant's 
appeal against an order of the Agent to the Governor in 
Kathiawar, and refusing the appellant's application for the 
execution of a judgment and decree of the Governor in Council 
of Bombay dated September 26, 1899, on the ground that both 
the judgment and decree had been reversed by His Majesty's 
Secretary of State for India in Council. 

The main questions raised in these appeals were whether an 
appeal lies to His Majesty in Council from the Agency Courts in 
Kathiawar, or from a decision of the Governor in Council of 
Bombay on appeal from those Courts, and whether in a suit 
of~which the subject-matter is one of municipal or civil law, 
and which has been duly heard and decided by those Courts 
in Kathiawar and by the Governor in Council of Bombay 
acting as a Court of Appeal therefrom. His Majesty's Secretary 
of State for India in Council has jurisdiction to reverse, alter or 
otherwise modify such decision. 

The appellant in the first appeal sued under the circumstances 
stated in the judgment of their Lordships to enforce a mortgage 
of village Sardharpur in Jetpur, in Kathiawar, in the Court of the 



LAL. 



VOL. XXXm.] INDIAN APPEALS. 8 

Assistant Political Agent, Sorath Prant. On November 24, j. c. 

1901, that Court refused to entertain it without a certificate 1905 

of the Political Agent consenting to the hearing. This order hbmchand 
was on February 22, 1902, confirmed by the Court of the J^evchand 
Political Agent. On September 22 of that year the same azam 
Court refused leave to appeal to His Majesty in Council, on chhotam- 
the grounds that the appellant was not a British subject, 
but the subject of the independent State of Jetpur, and had, 
therefore, no birth-right of appeal to His Majesty in Council, 
but only to the sovereign of Jetpur ; that the inhabitants of 
Jetpur and of the Kathiawar States were foreigners; that the 
jurisdiction exercised by the Agency Courts was native State 
jurisdiction; and that the said Courts were not British Courts 
from which an appeal lay to the King in Council. On May 16, 

1902, pending the petitions for leave to appeal, the appellant was 
ejected from the village in suit by order of the Assistant 
Political Agent, which was confirmed by the Court of the Political 
Agent on September 8 following. On March 12, 1903, the 
appellant obtained special leave to appeal from the orders of the 
Political Agent; including a third one refusing leave to appeal. 

In the second case the appellant instituted a suit (Political 
Case No. 15 of 1881—1882) in the Court of the Assistant Political 
Agent, Halar Prant, in Kathiawar, for redemption of a mort- 
gage of the village Karmal Kodta. An application by the 
respondent to transfer it from the political to the civil 
side was refused in August, 1886, the refusal being affirmed 
on appeal by the Political Agent, and eventually by the 
Governor in Council of Bombay on June 15, 1887. The suit 
was said to have been tried in all respects in accordance with 
the ordinary procedure of the Court as regulated by Act XIV. 
of 1882. The Assistant's Court on April 19, 1897, dismissed the 
suit. The Political Agent affirmed this dismissal on appeal. 
The Governor in Council in September, 1899, reversed these 
dismissals on second appeal and decreed redemption; but on 
appeal to the Secretary of State the decision of the Governor 
in Council was reversed, and the decrees of the political officers 
in Kathiawar re-established. The appellant then applied to the 
Courts in Kathiawar for execution of the Governor's decree of 

B2 



4 INDIAN APPEALa [L. E. 

J. c. redemption in 1899 on the ground that the Secretary of State 

1905 had no jurisdiction to reverse it, the subject of the suit being 

Hbmchand DaO'tter of municipal law and the Secretary of State in Council 

Dbvchand not being a Court of law or a Court of appeal from the final 

AzAM decision of a Court of law in India. These applications were 

Q A xr A 'PT A T 

Chhotam- refused, the Agency Courts, and eventually the Governor in 

^^ Council, on January 14, 1904, holding that they were bound 

by the decision of the Secretary of State. On August 10, 1904, 

the appellant obtained special leave to appeal to the King in 

Council from the final order of the Governor. 

Haldane, K.C.y and J. W. McCarthy, for the appellants in 
both cases, contended that an appeal lay to the King in Council 
from the Courts of Kathiawar — first, because Kathiawar was British 
territory inhabited by British subjects, and not foreign territory 
inhabited by the subjects of native sovereign princes ; secondly, 
because the Courts in question were British Courts exercising 
jurisdiction in Kathiawar. 

With regard to the first point it was contended that Kathiawar 
formed part of British India as defined in s. 18 of the Interpre- 
tation Act, 1889 (52 & 63 Vict. c. 63), it being a territory or place 
within His Majesty's dominions, which is for the time being 
governed by His Majesty through the Governor-General of India 
or through a governor or other officer subordinate to the 
Governor-General of India. The province of Kathiawar con- 
sisted of a number of small States under tributary chiefs or 
talukdars, who appear to have been about 400 in number. 
Prior to 1802 the whole province was divided between the 
Peshwa and the Gaikwar, who claimed over it sovereign rights, 
chiefly consisting of the exaction of tribute, and the sovereignty 
over the country was in the power to which tribute was paid. 
As regards the rights of this Peshwa, many taluks and villages 
and a considerable portion of Kathiawar were ceded to the British 
Government in 1802 by the Treaty of Bassein, and the rest of 
the rights of the Peshwa in those parts of Kathiawar which had 
not been transferred in 1802 were ceded to Great Britain in 
1817. As regards the Gaikwar in 1807 a settlement was made 
for the payment to the British Government of the tribute payable 



VOL. XXXin.] INDIAN APPEALS. 5 

by Kathiawar chiefs to the Gaikwar, and since that date this J. c. 
tribute has been collected by the British authorities, who have 1905 
then paid to the Gaikwar the share to which he is entitled under hemchand 
existing agreements, and in 1820 by a further agreement the i^evchand 
Gaikwar engaged not to interfere in the province except through ^ a^am 
the British Government. Further, in 1807 and 1808 the chiefs Chhotam- 
entered into agreements giving a security bond for the general ^!^ 
peace of the country and agreeing (inter alia) " to do nothing 
thenceforward without the sanction of the Government previously 
obtained." Since 1820 the supreme authority in Kathiawar, as 
far as it had been previously vested in the Peshwa or the 
Gaikwar, has been exercised solely by the British Government. 
Since that date Political Agents and other officers have been 
appointed to govern the province and the authority of the British 
Government has been generally exercised over the whole province. 
As regards the judicial administration, down to 1831, this was 
left in the hands of the chiefs without regular control. In 1831 
the British Government established a Criminal Court of Justice 
under the presidency of the Political Commissioner for the trial 
(inter alia) of crimes committed by petty chiefs upon one another 
or otherwise than in the exercise of their recognized authority 
over their own dependents, and until 1863 every sentence of 
this Court was submitted to the Bombay Government for their 
approval. In 1862 the whole administration was re-organized, 
and the province was divided into four districts under political 
assistants with other British magistrates under them, all under 
the control of the Political Agent. At the same time the 
number of Kathiawar States under separate chiefs being 188, 
these chiefs were divided into different classes, on whom was 
conferred certain criminal and civil jurisdiction varying 
according to each class. All other jurisdiction both civil 
and criminal throughout the province beyond that allowed 
to the chiefs was reserved to the British officers and magis- 
trates under the authority of the Political Agent, and this 
has been termed " residuary jurisdiction." Codes, moreover, 
both civil and criminal, have been promulgated establishing 
regular Courts of justice. The Civil Code distinguishes the 
chiefs of Kathiawar from " sovereign powers " or " independent 



6 INDIAN APPEALS. [L. B. 

J. c. chiefs." Since 1862 the whole jurisdiction exercised by the 

1905 chiefs has been treated as conferred upon them by the British 
HBMCHAifD Government. Since 1820 the chiefs in Kathiawar have in no 
Devchand sense been sovereign native princes or independent. Many of 

AzAM them are merely heads of villages, and have throughout been 
Chhotam- under the control and authority of and subject to the British 

^^ Government. The Courts of the Assistant Political Agent, 
Sorath Prant, and of the Political Agent, Kathiawar, are British 
Courts in Kathiawar exercising the residuary jurisdiction reserved 
to the British authorities and are Courts of justice within a 
British possession, and for these reasons an appeal lies from 
them to His Majesty in Council under 7 & 8 Vict. c. 69. 
Eeference was made to Damodhar Oordhan v. Deoram Kanji (1), 
in which the Privy Council went some way towards holding that 
Kathiawar is British territory; Ilbert's Government of India, 
p. 1 ; Hunter's Brief History of the Indian People, p. 160 ; to 
various minutes of the Government of India printed in the 
record, and in particular to Sir B. Frere's minute of March 21, 
1863; Kathiawar Directory, 1886, Part II., pp. 822, 1182; 
Foreign Jurisdiction Act (XXI. of 1879), and Act XX. of 1876. 
The Government of India has always possessed two sets of 
powers, one set derived originally from the Crown, but exercised 
at one time by the East India Company, and then in 1858 
transferred to the Governor- General in Council, another set 
which grew up in the Crown, as its sovereignty grew, and was 
never parted with to the Company. The Foreign Jurisdiction 
Act (XXI. of 1879), and the Indian Order in Council, 1902, under 
the Imperial Foreign Jurisdiction Act, 1890 (see Statutory Eules 
and Orders, 1902, p. 174, No. 466), now regulate the exercise by 
the Governor-General of his prerogative powers which were always 
vested in the Crown. Acting under this prerogative authority, 
the Governor-General had power to determine the law and 
procedure to be observed by Political Agents in Kathiawar, and 
by so doing, indirectly restricted the sovereignty of the chiefs. 
The British Government is in receipt of tributes, maintains 
troops, exercises all civil and criminal jurisdiction through its 
own oflScers, except so far as it has conferred a limited jurisdiction 
(1) (1876) 1 App. Oas. 332 ; S. C. 3 Ind. Ap. 102. 



VOL. XXXm.] INDIAN APPEALS. 7 

on chiefs and landowners, and, as regards the powers which it J. c. 
confers, it exercises the fullest control. It also makes rules for i905 

the police and regulates the abkari, or excise. This extent of hehohand 

interference is suflacient to shew that the British Government i^bvchaud 

v. 

has practically assumed the sovereignty of Eathiawar. Befer- azam 
ence was made to various minutes of Government officers from chhotam- 
1821 to 1864 in support of this view of the political relations ^!^ 
with Kathiawar. 

It was contended that it was sufficient to establish the second 
ground of appeal, viz., that the Courts in question were set 
up by the King, like any other Courts; that if Eathiawar is 
foreign territory the Agency Courts are as much King's Courts 
as other extra-territorial Courts. In this case, however, they are 
not set up by any capitulations or treaties, but as the result of 
conquest and of sovereign power. They are Courts within the 
meaning of the Foreign Jurisdiction Act (68 & 54 Vict. c. 87), 
s. 16, and consequently an appeal lies therefrom to the King in 
Council. Further, they are Courts which are governed by the 
Indian Civil Procedure Code, which provides for such an appeal. 
The appeal can only be taken away by the prerogative. The 
decision of the Bombay High Court that Falitana in Kathiawar 
is a sovereign State, see Ladkuvarbai v. Ohoel Shri Sarsanji 
Pratabsangjiil), is based on Sir C. Wood's despatch of 1854, and 
is contradicted by the decision of the Calcutta High Court in 
Empress v. Keshub Mahajun. (2) And see also Hursee Mahapatro 
V. Dinobundo Patro. (8) 

The distinction between " political " and " civil " suits in 
the Kathiawar Agency Courts is dealt with and regulated by 
numerous Government notifications, circulars, resolutions and 
rules of Court, the effect of which is that suits are to be con- 
sidered as *' political " when a chief of some specified class is 
a party, or when the case is one affecting the interests of the 
tributary chiefs, of whatever class, in regard to sovereign rights, 
jurisdiction, tribute, territory, boundaries, political status, or 
prerogative and certain other matters. The judges of the 
Agency Courts of Kathiawar exercise both executive and 

(1) (1870) 7 Bomb. H. C O. C. J. (2) (1882) L L. E. 8 Calc.-985. 

160. (3) (1881) L L. E. 7 Calc. 523. 



8 INDIAN APPEALS. [L. R. 

J. c. judicial authority, and if a " political *' suit is instituted in 

1906 which the suhject-matter relates to civil rights of the parties 
Hbmchand arising out of contract or otherwise, and in which the matter is 
Dbvchand qjjq qI ordinary civil or municipal law, it falls within the judicial 

AzAM authority, and proceeds as an ordinary civil suit, with the excep- 
Ghhotah- tion that the parties are relieved from the payment of certain 

^ fees on instituting the suit. If a " political " suit raises ques- 
tions outside the ordinary legal rights of the parties and outside 
matters of ordinary civil or municipal law, whether such 
questions affect the political status or rights of the parties, or 
are matters of general policy to be dealt with by the Government 
or its executive tribunals or officers, such suit falls within the 
executive authority of the Political Agent or Agent to the 
Governor, and does not proceed as an ordinary civil suit. 

The first of these suits was a civil suit. The second was 
originally entered in the Agency Court of Halar Prant as a 
" political " case, solely because the parties thereto were members 
of the specified class of chiefs, and were therefore entitled to 
privileges such as the exemption from payment of institution 
fees in the Court, but as far as regards its subject-matter the 
suit was an ordinary civil suit for the redemption of a mortgage, 
and raised only questions of civil or municipal law and of the 
rights of the parties under contract. 

Cohen, K.C., and PhiUips, for the respondents in the first 
appeal, contended that no appeal lay to the King in Council. 
They contended that Kathiawar was not a part of British India, 
but was native territory under the suzerainty of His Majesty. 
On the further question raised by the appellant, they contended 
that the Courts were not British Courts exercising British juris- 
diction, but were tribunals exercising a jurisdiction conferred 
on them by the executive authorities, and limited by rules 
prescribed by them from time to time. The 780 native States 
of India are not subject to the Crown, though to a certain 
extent in a state of dependence thereon. In Damodhar Oordhan*s 
Case (1) it was held that the Government could not remove any 
part of British India from the ordinary jurisdiction of the British 
Courts. If, therefore, Kathiawar is in Bridsh India, the Courts 
(1) 1 App. Oas. 332. 



VOL. XXXm.] INDIAN APPEALS. 9 

of the Political AgentB had no jurisdiction to deal with the case, J. c. 
being illegally established ; and all notifications and rules issued 1906 
in regard to them were invalid. Only Courts established by the hbmchand 
Legislature would have jurisdiction. In Queen v. Burah (1) it I^^vchand 
was held that, by enactments of Parliament or of the Indian „ ^^^,, 
Legislature, any part of British India might be removed from the Chhotam- 

jurisdiction of the ordinary Courts. No Act has been passed .' 

relating to the Courts of Kathiawar. The Executive can only 
establish Courts therein if it be outside British India. The 
province of Kathiawar was, and is, governed by a large number 
of native Bajpoot chiefs, independent of one another, who 
formerly paid tribute to the Peshwa and the Gaikwar of 
Baroda, two Mahratta chiefs, subordinate in theory to the Great 
Mogul at Delhi. In 1802, by the Treaty of Bassein, the Peshwa 
ceded part of his claims to tribute to the British Government, then 
represented by the East India Company (Aitchison's Treaties, 
8rd ed. Vol. VI. p. 68). The East India Company thereafter, 
in concert with the Gaikwar, collected the Kathiawar tribute. 
The Peshwa in 1803 or 1804 farmed his rights to the Gaikwar 
for ten years. In 1817 he ceded whatever rights remained to 
him to the East India Company, and in 1820 the Gaikwar made 
a similar cession. Thereafter engagements were entered into 
between the chiefs, who mutually guaranteed the performance 
of each other's obligations, and the Indian Government, by 
which the chiefs agreed to pay a tribute fixed in perpetuity, 
with security for its due payment, and the British Government 
undertook to protect them from oppression, and engaged that 
the Mulkgiri (2) army should not be employed as theretofore. 
The chiefs were left perfectly independent in their internal 
administration ; the paramount power (which was the East India 
Company from 1820) not then claiming and never having exer- 
cised any right to interfere in their internal administration 
except for the better security of the tribute. The question of 

(1) (1878) 3 App. Cas. 889 ; S. C. Glossary, s,v. This meauing seems 
L. B. 6 Ind. App. 178. purely local. In old Anglo-Indian 

(2) ** Periodical progress or incur- . cacography, ** mooluckgerry." Wil- 
sion of a military force for the son by a strange slip misspells the 
collection of tribute or revenue by common word mulk with a final 
yiolenoe or intimidation " : Wilson's qdf, — ^F, P. 



10 INDIAN APPEALS. [L. B. 

J. c. fact, whether Eathiawar is or is not a part of British India (see 
1905 52 & 58 Vict. c. 63, s. 18, and the Indian General Clauses Act X. of 
Hemchand 1897, s. 8, sub-ss. 7 and 28), can only be determined in one of two 
Dkvchand ways, either by studying the past relations between the Crown or 
azIm Indian Government and the States of Eathiawar, or by obtaining 
Ohhotam- information from the Secretary of State, as was done in Taylor v. 
^^' Ba/rday (1), and The Charkieh. (2) Such a proceeding is permitted 
by the Foreign Jurisdiction Act, 1890 (58 & 54 Vict. c. 37), s. 4. 
Various opinions of leading officers of the British and Baroda 
Governments, and despatches given in the record, were referred 
to as shewing that Eathiawar was regarded as a foreign 
country, subject to occasional interference if peace and order 
required it. The Bhaunagar Act of 1876 is the only instance 
of Indian legislation with regard to Eathiawar, and by that 
Act the Government disclaimed the territory. It is not a 
scheduled district under Act XIV. of 1874. Not being part of 
British India, the Governor-General in Council had power in his 
executive capacity (see Ilbert's Government of India, pp. 452, 
455, 458, 459, and 574), as regulated by Act XXI. of 1879, to issue 
the notification in dispute in this case (June 22, 1900) and to 
entrust power to his executive officers to administer justice subject 
to his directions. If it were part of British India, the Legislature 
alone could establish judicial Courts and authority. The notifi- 
cations in the Eathiawar Directory shew how the Political 
Agents' Courts were established, what appeals were allowed, 
and what law was administered. A Political Agent (see s. 8 
of Act XXI. of 1879) is an officer appointed by virtue of the 
executive authority to watch over peace and good order in a 
native State, and is invested with a certain kind of jurisdic- 
tion. By Macpherson's List of British Enactments in Force 
in Native States, published by authority of the Government 
of India, the Eathiawar Agency is included amongst the native 
States. The appellant's only remedy is to apply to His Majesty, 
who could, under s. 4 of 3 & 4 Will. 4, c. 41, refer the matter 
to this Board : see the case of the Nawab of Surat (8), and 
SaflEord and Wheeler's Privy Council, pp. 769, 770. 

(1) (1828) 2 Sim. 213, 220. (2) (1873) L. E. 4 A. & E. 69, 74. 

(3) (1856) 9 Moore, P. C. 88. 



VOL. XXXm.] INDIAN APPEALS. 11 

Sir E. Clarke^ K.C.y and Birdwood, for the respondent in J. c. 

the second appeal, contended that the decision of the Governor 1905 

of Bombay in Council in September, 1899, in favour of the hbmohaito 

appellant had been validly (see 21 & 22 Vict. c. 106, s. 8) dbvchakd 

reversed by the Secretary of State, and that after that reversal azam 
- . Sakablal 

there remamed no decision in his favour capable of being executed chhotam- 

againat the respondent. Consequently the subsequent order of ^!^ 
the Governor in Council refusing execution was a valid order and 
it was moreover a political act. They contended that the Agency 
Courts in Eathiawar which dealt with this case, are not Courts of 
justice within a British possession within the meaning of 7 & 8 
Vict. c. 69 nor British Courts in a foreign country within the 
meaning of 63 & 54 Vict. c. 87. The preamble of the Bhaunagar 
Act of 1876 recognizes that Eathiawar is not British territory : 
and see Ladkuvarbai v. Qhoel Shri Sarsangji (1) ; Triccam Panac- 
hand v. Bombay, dc, Ry. Co, (2) ; Queen-Empress v. Abdtd 
Latif. (8) It has never been vested in the British Crown under 
21 & 22 Vict. c. 106, and is not governed by His Majesty within 
the definition of British India in s. 18 of the Interpretation Act, 
1889, and s. 8, sub-s. 7, of Act X. of 1897 ; certain powers of govern- 
ment are exercised, but not in such a way as to displace the 
native sovereignty. There are very important powers which are 
not exercised. As regards legislation the Indian Legislatures have 
never made and cannot make laws for Eathiawar. Under the 
Indian Councils Act, 1861, s. 22, the Governor-General for India 
in Council can legislate for certain persons within the province, 
but not in respect of Courts of justice or places or things. The 
Agency Courts were set up by compact with the chiefs, that is, in 
pursuance of Colonel Walker's famous settlement of 1807, not by 
legislation ; and are Courts of the native States if Courts at all. 
Where Indian Acts or adaptations of them have been introduced 
into Eathiawar they have been applied by executive order, not by 
legislation, and are merely rules of procedure for the guidance of 
political officers. The revenue system was examined to shew that 
it was conducted by the chiefs as their own freed from British 
jurisdiction or control. So also the police administration was left 

(1) 7 Bomb, H. 0. R. 0. 0. J. 150. (2) (1885) I. L. E. 9 Bomb. 244. 

(3) (1885) I. L. E. 10 Bomb. 186. 



12 INDIAN APPEALS [L. E. 

J. G. in the hands of the native States. Interference has been confined 

1906 to the judicial administration ; but only a tenth part of the litiga- 
Hbmchand *^^^ ^* Kathiawar is dealt with by Political oflScers exercising 
Dbvohand jurisdiction on behalf of the chiefs. The inherent jurisdiction 

AzAM of the chiefs extends to all litigation in their territories, but while 
Chhotam- they are under disqualification it is exercised by the British Govern- 

^ ment : see theDirectory, Part I., 1886, p. 276, Partll., 1886, p. 453, 
and Macpherson's Enactments in Force in Native States, p. 42. 

Kathiawar has never been subject to the system of jurisprudence 
applicable to British India. Its chiefs have their own Courts and 
codes of law. The Courts of the political oflScers are not governed 
by British laws, but by special rules of procedure prescribed for 
their guidance : see Kathiawar Directory, Part II., 1886, pp. 822 — 
824, 1182. They are in fact not Courts of justice, though described 
as such ; certainly not British Courts established by law. Their 
decisions are guided by political considerations. The cases dealt 
with by them are classed as civil and political ; but the same officers 
deal with both classes. The nature of political suits is described 
in Kathiawar Directory, Part L, 1886, p. 276; PartII.,1886, p. 463; 
and Part III. 1896, pp. 38 and 40. In hearing them the Agent as 
representing the paramount power arbitrates diplomatically be- 
tween the parties. The present case is undoubtedly political, and 
the decision of the Governor in Council is not a judgment of a Court 
acting on principles and rules which the Judicial Committee can 
investigate and apply. This Board cannot be guided by the same 
considerations which control the Political Agents. The suzerainty 
of the Crown has been delegated to them through the Government 
of India. The laws which have been introduced are so many 
rules of procedure within the meaning of s. 6 of Act XXI. 
of 1879. This second appeal is an interstatal case involving 
sovereign rights over a particular village. The political juris- 
diction exercised in such a case is one of the methods by 
which the suzerainty of . the Crown is exercised and is entirely 
distinct from the jurisdiction exercised by the High Courts in 
British India and by His Majesty in Council in appeal there- 
from : see Maharajah Madhava Singh v. Secretary of State for 
India in Council. (1) Formerly the appeal lay from the Governor 
(1) (1904) L. E. 31 Ind. Ap. 239. 



LAL. 

1905 
Beq. 18. 



VOL. XXXHL] INDIAN APPEATiS. 18 

in Council in such cases to the Court of Directors. Under s. 8 of J. o. 

21 & 22 Vict. c. 106 it is to the Secretary of State. It cannot be 1905 

contended that this long-established procedure was wrong ; but HEMCHAm) 

if Kathiawar was part of British India no such appeal would lie, ^^vohand 

and the .decisions would have been coram non judice in every case Azam 

Sakablal 
from the Assistant Political Agent up to the Governor in Council, chhotam- 

Haldane^ K.C., replied in both appeals. 

The judgment of their Lordships was delivered by 

SiK Arthur Wilson. The first of these appeals arises out 
of a suit instituted in a Court of the Assistant Political Agent of 
Borath Prant, in Kathiawar (the term Prant meaning an 
administrative district). The grounds of the plaintiff's claim, 
so far as it has now to be noticed, were that in February, 1898, 
he had advanced money to the late Darbar Shri Yala Naja 
Mamaiya, a shareholder in the chiefship or talukdari of Jetpur 
Chital in Kathiawar, for the purpose of paying off debts due by 
the latter, who was a talukdar of the sixth clas^, and that the 
plaintiff had acquired possession ; that Vala Naja died in May, 
1901 ; and that the plaintiff's rights as mortgagee had been 
interfered with or threatened by the nominal defendant as 
manager for the substantial defendants, the successors of the 
deceased chief. The plaintiff prayed for a declaration of his 
rights and an injunction. In effect, therefore, the suit was one 
to enforce a mortgage made by a deceased chief against his 
successors. The Assistant Political Agent dismissed the suit, 
basing his decision upon a notification of the Government of 
India, in the Foreign Department, of June 22, 1900, which laid 
down, for the guidance of the Agency Courts in Kathiawar, the 
rule that: "No suit shall lie against a tributary chief or 
talukdar .... in respect of any debt contracted by the pre- 
decessor of such chief or talukdar or sub-sharer unless (a) the 
claim has been admitted by the tributary chief or talukdar or 
sub-sharer ; or (b) the debt has received the written approval of 
the Political Agent." 

Against that decision the plaintiff appealed to the Political 
Agent, who, on February 22, 1902, dismissed the appeal. On 
September 8, 1902, the Political Agent dismissed another appeal 



14 INDIAN APPEALS. [L. E. 

J. c. by the plaintiff against an order of the Assistant Political Agent 

1905 awarding the defendants possession of the property in dispute. 

Hemchand ^y ^ ^^^^^ ^^^^^ ^* September 22, 1902, the Political Agent 

DEvcHAin> dismissed two applications of the plaintiff, one for a certificate 

AzAM that the case fulfilled the conditions necessary to support an 

Ft A IT A WT A T 

Chhotam- appeal to His Majesty in Council, the other for leave to bring 
^^ such an appeal. Against these three orders of the Political 
Agent the present appeal has been brought. 

The plaintiff being dissatisfied with these orders of the 
Political Agent, his ordinary and regular course would have 
been to appeal to the Governor of Bombay in Council. But he 
made an application to His Majesty in Council for special leave 
to appeal without going first to the Governor in Council, and in 
accordance with their Lordships' advice. His Majesty in Council 
granted special leave so to appeal, but with leave to the Secretary 
of State for India to intervene, and put in a case and appear ; in 
the result the India OflSce acted for the respondent. The appel- 
lant having been thus allowed to come before this Board without 
first going to Bombay, their Lordships think that the leave so 
given cannot have the effect of placing the appellant in any 
better position than he would have been in if he had followed 
the usual course and had a decision against him by the 
Governor in Council. So that in this respect, the case stands 
on the same footing as the second of the present appeals. 

The second appeal arises out of a suit instituted by the 
Thakor of Eotda-Sangani (a Kathiawar State) in the Court of 
the Assistant Political Agent, Halar Prant, against the State of 
Gondal, a State of the first class, to redeem and recover posses- 
sion of a village said to have been transferred by way of 
mortgage to the latter State by the former. The suit was 
dismissed by the first Court, and that dismissal was upheld by the 
Political Agent, Kathiawar. Upon appeal the Governor of Bombay 
in Council reversed that decision, and gave a decree for redemp- 
tion. A further appeal was brought to the Secretary of State in 
Council, who reversed the decision of the Governor in Council. 

After various proceedings before the tribunals in Kathiawar, 
in which the plaintiff sought unsuccessfully to execute the decree 
of the Governor in Council, notwithstanding its having been 



VOL. XXXnL] INDIAN APPEALS. 15 

reversed by the Secretary of State, he appealed to the Governor j. o. 
in Council, and asked him to order the execution of his own 1906 
decree. By an order of January 14, 1904, the Governor in hem^and 
Council refused the application. And against that order the Devchand 
plaintiff has brought the second of the present appeals, having Azam 
obtained special leave to do so, granted upon the same terms as chhotam- 
the leave granted in the first case. ^^' 

These two appeals were heard together. The question common 
to both cases, and the only question which has been argued, is 
whether an appeal lies to His Majesty in Council. And the answer 
to that question depends mainly upon the true relation of the 
Kathiawar States and their people to the British Crown, and upon 
the nature and character of the control exercised by the British 
Indian authorities over the administration of justice in those States. 
Prior to the year 1802 Kathiawar consisted of a large number 
of States, independent of one another, each governed by its own 
chief, but paying tribute in part to the Peshwa and in part to 
the Gaikwar of Baroda. It is necessary to review certain events 
that have occurred since that date, but they can be dealt with 
very briefly ; the more so because Kathiawar in its relations with 
the British Indian Government has commonly been dealt with 
as a whole ; and it may be so dealt with on the present occasion, 
for the cases presented by the present appellants do not depend 
upon any circumstances peculiar to the particular States which, 
or whose rulers or people, are affected, or upon any consideration 
not applicable to the whole province. 

The time under consideration divides itself naturally into two 
periods, that of the government of British India by the East 
India Company down to 1858, and that of the direct government 
by the Crown after that date. 

The legal and constitutional position of the Company during 
the former of these periods was established in a series of judicial 
decisions, and was finally and fully defined in The Secretary of 
State in Council v. Kamachee Boye Sahaba. (1) The Company 
exercised a delegated sovereignty over the territories under its 
government, with all the powers in connection with the external 
relations of those territories incidental to the exercise of that 
(1) (1859) 7 Moo. Ind. App. 476. 



16 INDIAN APPEALS. L^- ^ 

J. c. sovereignty, subject, of course, to such restrictions as were 

1905 imposed by charter or by statute. 
Hbmchand ^^ ^^ obvious that the sovereign power thus delegated to the 
Dkvchand Company could be exercised by it in India only through its 

AzAM agents and officers in the country. Before the Regulating Act 
CmotaIi^. of 1773 (13 Geo. 3, c. 63) the three Presidencies in India were 

^^ wholly independent of one another ; in the government of each, 
and in the dealings of each with the native States in its neigh- 
bourhood, the Company acted through its officers charged with 
the administration of that Presidency. By the Regulating Act 
the Governments of Madras and Bombay were placed under the 
superintendence and control of the Governor-General of Bengal 
(since become Governor-General of India) and his Council, and 
close restrictions were placed upon their power of making war or 
peace or concluding treaties without the approval of the Central 
Government. Subsequent statutes expressed with greater clear- 
ness the subordination of the lesser Governments, and repeated 
the restrictions upon the exercise by them of various sovereign 
powers. But subject to that subordination and to those restric- 
tions, those statutes never took away those powers, but, on the 
contrary, repeatedly recognized their existence. And accordingly 
in The East India Company v. Syed Ally (1) this Board held that 
a treaty entered into by the Government of Madras, after com- 
pliance with the statutory conditions, was a valid exercise of 
sovereignty. It is well to notice this point, because much that 
has now to be considered has to do with the action of the 
Government of Bombay. And as no question has been raised as 
to the Bombay Government having at all times obtained all 
necessary sanction, the distinction between the two Governments 
need not be further noticed. 

By the Government of India Act, 1858, the delegation of 
sovereign power to the Company was determined, and it has 
since been exercised directly on behalf of the Grown, in India 
(speaking generally) through the same authorities as before, in 
England through the Secretary of State. 

Under the sovereign power thus delegated for so long to the 
Company, and since 1858 exercised directly on behalf of the 
(1) (1827) 7 Moo. Ind. App. 555. 



VOL. XXXm.] INDIAN APPEALS. I7 

Crown, the British Empire in India has been built up. Under J. c. 

it new territories have been added to the actual dominions of the 1905 

Crown ; and under it many and various powers, rights, and bbmohand 

jurisdictions have been acquired and exercised over territories dbvchaiid 

which yet remain outside the King's dominions. Of the divers azam 

Raitaut at 

ways in which new lands have been brought under the King's chhotam- 
allegiance it is unnecessary here to speak. As to the rights and ^^ 
powers of control possessed and exercised over the native States 
in India with the corresponding restrictions upon the indepen- 
dent action of those States, some, no doubt, are the necessary 
consequence of the suzerainty vested in the predominant power. 
Thus, as is recited in 39 & 40 Vict. c. 46, the Indian States in 
alliance with the Crown, have '' no connexions, engagements, or 
communications with foreign powers." But apart from and 
beyond the consequences, whatever they may be, flowing from 
this general source, rights of very varying kinds have been 
•established in connection with the several States. They have 
different historical origins. The Indian Foreign Jurisdiction 
and Extradition Act XXI. of 1879 (following the language of the 
Imperial Act) recites that '* by treaty, capitulation, agreement, 
grant, usage, sufferance, and other lawful means the Governor- 
General of India in Council has power and jurisdiction within 
divers places beyond the limits of British India." And that Act 
proceeded to regulate the exercise of that jurisdiction so far as it 
was competent for the Indian Legislature to do so, that is to say, so 
far as it affected persons for whom that Legislature could make 
laws. The present cases are outside the scope of that legislation. 
Such rights over foreign territory differ not only in origin but 
in kind and in degree in the cases of different States ; so that in 
each instance in which the nature or extent of such rights 
becomes the subject of consideration, inquiry has to be made 
into the circumstances of the particular case. In accordance with 
this, in Muhammad Yuusuf-vd-din v. Queen-Empress (1), in which 
the question was as to the nature and extent of the railway 
jurisdiction vested in the British Indian authorities within 
the dominions of the Nizam, the case was decided upon the 
construction of the correspondence in which the cession of the 

(1) (1897) L. E. 24 Ind. App. 137. 
YoL. mcmTT. 



18 INDIAN APPEALS. [L. R 

J. c. jurisdiction was embodied. In the present cases the inquiry is 

1905 as to the relation of the Eathiawar States and their people to 
HEwicHAND British India, and the character of the control exercised by the 
Devchand British Indian Governments over those States, and particularly 

AzAM with relation to the administration of justice. 
Chhotam- It has already been said that, prior to 1802, the numerous 

^^ States of Eathiawar were independent of one another, but paid 
tribute in part to the Peshwa and in part to the Gaikwar. By 
treaties of 1802 and 1817 the Peshwa's rights were ceded to the 
East India Company. In 1820 the Gaikwar' s rights were ceded. 
What the nature of the power of the Peshwa and of the Gaikwar 
was, regarded as a matter of right, and what therefore they 
ceded to the East India Company, was the subject of frequent 
and anxious inquiry on the part of the Board of Directors 
and the Government of Bombay, but no satisfactory result 
was ever arrived at ; and it would be almost hopeless at the 
present time to attempt to answer that question upon the 
basis of contemporary evidence. Perhaps the whole truth is 
told in a sentence of a despatch of the Court of Directors of 
November 8, 1831: **It can scarcely be doubted, however, 
that the rights of the Maratta Governments were whatever they 
found it convenient to claim and had power to enforce.'* Their 
Lordships are happily not called upon to enter into any inquiry 
so difiScult as this. The control of the British Indian Govern- 
ment over Eathiawar has been in operation without controversy 
for a very long series of years. And the nature and character of 
that control must be ascertained from the manner in which, and 
the principles upon which, it has, in fact, been exercised. The 
history of this is therefore of primary importance. 

In 1807, at a time when the rights of the Peshwa had been 
partially, but not completely ceded, and when those of the 
Gaikwar were still in full force. Colonel Walker was sent to 
Eathiawar for the purpose of putting an end, as far as might be 
possible, to the disorders prevailing in the province. In a later 
despatch of the Court of Directors, of September 15, 1824, 
it is said: "The objects of the Company's interference in 
Eathiawar in 1807 were to induce the chiefs to enter into a 
permanent engagement for the payment of the claims of the 



VOL. XXXin.] INDIAN APPEALS. 19 

Guicowar Government " (the Peshwa's tribute was at that time J. a 
farmed to the Gaikwar) " without the periodical Mooluckgerry 1906 
Circuit, which devastated the country in its progress and hbmchand 
absorbed the tribute in its expense, and at the same time to i^^vchakd 
obtain security for the discontinuance of mutual aggression and azam 
predatory excursions.*' Colonel Walker brought about a settle- ohhotam- 
ment to which the Gaikwar's Government and the chiefs were ^^^ 
parties, of which it is enough to say that it provided for a fixed 
tribute from each State, secured by a system of mutual guaran- 
tees, that tribute to be received by the Company, which should 
account to the Gaikwar for what was due to him, for the cessation 
of the Mooluckgerry (1) invasions, and for the maintenance of 
peace and order between the States themselves. 

The next period which it is necessary to consider is 1819 and 
the few following years. The arrangements made by Colonel 
Walker for securing the tribute had not been completely suc- 
cessful. Two different officers were instructed to investigate the 
conditions of the problem. Amongst the subjects of inquiry pre- 
scribed one was : "In whom do the chiefs of Kattywar conceive the 
sovereignty of their country to reside ; in the chiefs themselves, 
the King of Delly [sic], or the Governments to whom they pay 
tribute? " with a number of other inquiries bearing on the same 
question. Eeports were received, the Government of Bombay 
expressed its views, and the subject came before the Court of 
Directors in 1824, who, in the despatch to Bombay already 
referred to of September 16, 1824, dealt thus with the 
subject : " In your 49th paragraph. Colonel Walker's opinion 
that the chiefs were otherwise independent, though paying a 
forced tribute, is questioned, and an inquiry is intimated into 
the general rights of the British and Gaicowar Governments 

over the chiefs of Kathiawar The right of preserving the 

peace of the country, which you assumed in paragraph 48, 
appears here to be questionable, and is made to rest on ques- 
tionable precedents. If Colonel Walker acted on a supposed 
right he did not thereby make it a real one. But it is at least 
doubtful if the Maratha Governments in point of fact ever 
claimed more than tribute. There is no evidence that they ever 

(1) See note at p. 9, ante. 

2 



20 INDIAN APPEALS. [L. B. 

J. c. interfered to maintain the peace of the country, or that they 

1905 ever sequestrated talooks for means of tribute. The proposed 

Hbmchand i^iq^iry must therefore resolve itself into this, whether we have 

DBvcHAin) derived from them the right of doing the same precise things 

AzAM which they did and nothing more, or the right of directing the 

Ghhotam- same general power to different specific objects according to the 

^^* difference of our policy." 

In 1825 further difficulties had arisen, which the Government 
of Bombay dealt with as best it could ; and on November 28, 
1825, the Government addressed to the Court of Directors 
a letter in which the constitutional position of Eathiawar was 
very cautiously dealt with. The reply to this and other letters 
was contained in a despatch of the Court of Directors of 
July 20, 1830, in which they said : " All the rights which we 
possess in Eattywar were acquired from the Peshwa and the 
Guicawar, from the former by conquest, from the latter by 
mutual arrangements. These rights we considered as limited 
to the exaction of a tribute with the power of taking such 
measures as might be essential to the security of that tribute. 
Beyond this we did not propose to interfere, and we determined 
to treat the Eattywar tributaries as independent chieftains 
entitled to the uncontrolled exercise of the power of Government 
within their own territories, and subject only to the obligation 
of not molesting our subjects, our allies, or one another, and of 
paying the stipulated tribute to the Guicawar and to ourselves." 

By the year 1830 it was found that disorders still prevailed in 
Eathiawar, due apparently to the weakness of some of the chiefs. 
And the Bombay Government instructed the Political Commis- 
sioner to visit Eathiawar twice annually, and try persons guilty of 
capital crimes in the territories of those petty States whose chiefs 
might be too weak to punish them. The Court of Directors in 
1834 approved this plan, adding : '* We are glad to find that it 
has the complete concurrence of the chiefs themselves." 

In 1847 it appears that questions arose as to whether offences 
committed in Eathiawar by sepoys in the Company's service, 
and by camp followers, were to be tried by court-martial as 
offences committed in foreign territory, and the decision of the 
Bombay Government was in the affirmative. 



VOL. XXXin.] INDIAN APPEALS. 21 

In a despatch of March 81, 1858, the Court of Directors, J. c. 
referring to an opinion expressed by the then Eesident of 1905 
Baroda, said : " We cannot dismiss the correspondence which hemchand 
has arisen out of these questions of jurisdiction without ex- i^evchaio) 
pressing our surprise that an office^ in the high political position azam 
occupied " (by the officer in question) " should have declared his chhotam- 
opinion that the whole province of Katteewar, with the exception ^^ 
of the districts of the Gaekwar, is British territory, and its 
inhabitants British subjects." 

In and beforiB the year 1868 a further reorganization was 
found to be necessary, and, as might be expected, the question as 
to the status of Kathiawar again arose. In 1868 the members 
of the Bombay Government, in carefully reasoned minutes, 
maintained the proposition that Kathiawar was British territory. 
The Government of India did not indorse this view, but in a 
despatch of April 14, 1864, to the Secretary of State, while 
discussing the proposed new arrangements, they said : " The 
next question refers to the law and the system which should 
be applied to Katteewar. For the due solution of this question 
it is necessary first to decide whether Katteewar is foreign or 
British territory; and until we receive an expression of the 
views of Her Majesty's Government on the question discussed in 
our separate despatch, the law as at present in force must 
remain.*' On the point thus submitted the reply of the Secre- 
tary of State, in a despatch of August 81, 1864, was this : " I 
have read with interest and attention all the arguments which 
have been adduced on either side by the several members of 
the Government of India and of Bombay. It is not necessary 
that I should examine in detail these conflicting arguments, or 
record an opinion with respect to their relative weight. It is 
sufficient to say that the chiefs of Katteewar have received formal 
assurances from the British Government that their rights will 
be respected, and that the Home Government of India, so lately 
as 1858, repudiated the opinion that the province of Katteewar 
was British territory, or its inhabitants British subjects." The 
arrangements then made will be considered later. 

During the period which has hitherto been under considera- 
tion, and in subsequent years, the political control exercised over 



LAL. 



22 INDIAN APPEALS [L. E. 

J. c. Kathiawar has been very complete, but it has been exercised 

1905 in different degrees in different classes of Kathiawar States. The 

Hemchand q^^stion of judicial administration will be more fully considered 

Devchand hereafter ; at present it may be convenient first to notice a few 

AzAM other points. 
Chhotam- It has never been claimed that British Indian law, as such, 
is operative in Kathiawar; nor, on the other hand, have the 
Kathiawar States been included in the Scheduled Districts Act 
(XIV. of 1874), which enumerates certain of the districts forming 
part of British India, but to which the general law is not neces- 
sarily to apply. The British Indian Legislature has never 
purported to legislate directly for Kathiawar or its inhabitants ; 
but, on the contrary, in the Indian Act, XX. of 1876, it is 
expressly recited, with regard to an important territory in 
Kathiawar, that " the British Government have exercised certain 
powers of government over the said territory, but such territory 
has never been treated as being British territory, nor as having 
been vested in the East India Company nor in Her Majesty the 
Queen of Great Britain and Ireland and Empress of India, and 
the said Kathiawar villages have consequently never been subject 
to the laws in force in the Presidency of Bombay." The chiefs, 
at least in the larger States, have exercised the power of making 
laws for their own subjects. The police administration has been 
in their hands. The general revenues have been received and 
applied by the chiefs, and it appears from a work of high 
authority (1) that in many cases the revenue is a sum many 
times as great as the tribute. 

As to the course pursued with regard to judicial administra- 
tion it has already been stated that under the arrangement 
sanctioned by the Court of Directors in 1884, authority was 
given to the Political Commissioner to try persons guilty of 
capital crimes committed in States whose chiefs were too weak 
to punish them. It may be added that under that scheme 
sentences passed by the Political Commissioner were subject to 
the approval of the Bombay Government. 

In all subsequent arrangements, the first thing to be noticed 
is, that they were all carried out, not by any legislative action, 
(1) 6 Aitchiflon, 3rd ed. (1892), pp. 187 et seq., and Appendix 9, p. 48. 



VOL. XXXin.] INDIAN APPEALS. 28 

but by orders or resolutions of the Executive Government, a j. c. 
course of proceeding which was appropriate if Kathiawar was 1905 
foreign territory, but quite irregular if it formed part of the hbmchand 
dominions of the Crown. Devchand 

V. 

A fairly complete organization of the province was carried out Azam 
in 1863. The general nature of that settlement is very concisely chhotam- 
described in 6 Aitchison, p. 188 : " The administration was ^^• 
re-organized by arranging in seven classes all the chiefs of 
Eathiawar, and defining their powers and the extent of their 
jurisdiction. The country was divided into four districts, or 
* prants,* corresponding with the ancient divisions of Kathiawar, 
and European officers were appointed to these districts to super- 
intend the administration generally, and more particularly to 
try inter- jurisdictional cases and offenders who had no known 
chief, or who were under such petty landholders as might be 
unable to bring them to trial." 

Under the arrangement then made, modified as it has been 
ID some respects by subsequent orders, the chiefs of the first 
class, who are not many in number but who rule over wide 
areas, can try any person, except a British subject, even for a 
capital offence, without any permission from the Political Agent, 
and their civil jurisdiction is unlimited. The jurisdiction of the 
chiefs in the second class, who also rule wide areas, is very 
nearly the same as that of those in the first. The chiefs in the 
third and the fourth classes have still very wide powers. These 
are much less in the following classes, down to the seventh, in 
which the chiefs have very trifling criminal and no civil juris- 
diction. In the cases which fall within the power of the chiefs 
their decision is final, and no judicial appeal lies to any British 
authority. 

British officers have been appointed to deal with the classes of 
cases withdrawn from the jurisdiction of the chiefs themselves. 
Those officers and their tribunals are of three classes : (1.) Sub- 
ordinate Courts — which need not be further noticed in dealing 
with these appeals ; (2.) Assistant Political Agents' Courts ; 
(8.) the Court of the Political Agent. To the latter officer is 
attached a judicial assistant, whose Court forms part of that of 
his chief. The titles of the Political Agent and of the Assistant 



24 INDIAN APPEALS. [L. E. 

J. c. Political Agents have now been altered ; but the change appears 
1905 to have been only one of name, and need not be further noticed. 
Hemchand ^^^ Assistant Political Agents have jurisdiction in all classes of 
Dbvchaitd cases ; but an appeal lies to the Political Agent, who, according to 
AzAM circumstances, hears it himself or refers it to his judicial assistant. 
Chhotam- 'I'he cases that come before the Assistant Political Agents, and 
^^ on appeal from them before the Political Agent, are divided into 
two classes, political and civil. This division has long been 
maintained. It is clearly recognized in rules laid down by the 
Governor in Council in 1874 and in 1888. A fresh set of rules 
was issued in 1902, in which express instructions are laid down 
as to what cases should be regarded as political. In this the 
rules seem, on the face of them, to go beyond their predecessors. 
But in the despatch of August 8, 1902, which communi- 
cated the new rules to the Secretary of State, the Government 
of Bombay said : " The Eules are simply an issue in authorita- 
tive form of existing orders, and contain no new matter " except 
certain points not now material. 

What is laid down in the Eules of 1902 is as follows : — 
" 2. The following suits should ordinarily be considered 
political : — 

" (i.) Suits to which a chief of any of the first four classes is a 

party. 
'' (ii.) Gases affecting the interest of the tributary chiefs, of 
whatever class, in regard to sovereign rights, juris- 
diction, tribute or allied payments, maintenance to 
members of the chief's family, compensation for injury 
done by outlaws or highway robbers, territory, boun- 
daries, political status or prerogative. 

" Explanation. — Claims for inheritance or partition 
of estates in the families of chiefs below the fourth 
class should ordinarily be heard as civil suits, but this 
does not include cases which raise the issue of a right 
of succession to a chief ship to which jurisdictionary 
powers are attached, or an issue of an inheritance to, 
or partition of, any estates in which a jurisdictional 
chief or tribute-paying talukdar has an interest direct 
or indirect." 



VOL. XXXnj.] INDIAN APPEALS. 26 

In political cases the Political Agent hears the appeals himself. j. c. 
He is to regard his function as *' diplomatic or controlUng," and 1905 
to dispose of the cases " as he thinks proper." Civil appeals he hemchaot) 
is ordinarily to refer to the judicial assistant. Devchahd 

Of the two appeals now before their Lordships, the first arises Azam 
out of a case classed as civil, the second out of one classed as chhotam- 
political. ^• 

From the Court of the Political Agent appeals lie, subject to 
certain rules, to the Governor of Bombay in Council. And since 
as far back as their Lordships have been able to trace the matter, 
a further appeal has been entertained by the Secretary of State 
in Council. 

The first ground upon which it was sought to maintain the 
competence of the present appeals was that the province of 
Eathiawar is British Indian territory, and its people within the 
King's allegiance, and that an appeal lies from the Courts of 
that province, and from those within the King's dominions, who 
hear appeals from that province, as from other Courts within 
British territory. 

In support of this contention reliance was placed, first, upon 
the case of Damodhar Oordhan v. Deoram Kanji{l), the judg- 
ment in which was said to suggest an opinion that Kathiawar 
was British territory. It is true that there are passages in that 
judgment which may fairly be cited as favourable to the conten- 
tion of the appellants. But in that case the question did not 
arise for decision, and their Lordships neither decided it nor 
expressed any opinion upon it. Nor were the materials for a 
decision which are now before their Lordships then before this 
Board. That case, too, was one between private persons, in 
which the Secretary of State was not represented. Reliance 
was further placed upon opinions expressed by persons of high 
authority to the effect that Kathiawar was British territory. 
But the opinions so expressed were overruled by higher 
authority. Stress was laid, lastly, upon the great extent of 
the control exercised by the British Indian Governments over 
the administration of the Kathiawar territories, which it was 
argued amounted to an actual assumption of sovereignty. 
(1) L. B. 1 App. Oas. 332. 



26 INDIAN APPEALS. [L. B. 

»}, (I On the other hand, there are the repeated declarations by the 

mi/j Court of Directors and of the Secretary of State that Kathiawar 
UKmiHAnt) ^^ ^^^ within the Dominions of the Crown. Those declarations 
l>Ky(iUAm> ^QYe no mere expressions of opinion. They were rulings by 

A'AAH those who were, for the time being, entitled to speak on behalf 
(UiiuyrAM- of the sovereign power, and rulings intended to govern the 

''.^''.' action of the authorities in India, by determining the principle 
U|)on which they were to act in dealing with Kathiawar. 

Those rulings have, in fact, been acted on. Many and various 
as have been the forms of intervention by the British Indian 
powers in the affairs of Kathiawar, and large as has been the 
political control exercised over the province, any assertion of 
territorial sovereignty has been avoided. No legislative power 
over it has ever been claimed. The intervention has never 
been carried further than was judged necessary, in the emerg- 
ency, for the maintenance of peace, good order, and security. 
The position of the chiefs has always been respected; and, at 
lonst in the case of the more important among them, many of 
the functions commonly regarded as attributes of sovereignty 
have been preserved to them. The form adopted in establishing 
and regulating tribunals in the province has been that which 
was regular and appropriate if it was not British territory, but 
quite irregular and inapplicable if it was. And in the first of 
Die ap))eiUa now before their Lordships counsel for the Secre- 
tary ot State disclaimed the view that Kathiawar is within the 
King's dominions, and maintained that it is not so. 

Thoir Lordsliips are ot opinion that Kathiawar is not, as a 
\vho)t^« within the King's dominions, and it has not been shewn, 
or ludtHHl cont^ndfHl, that the particular territories out of which 
lh^$0 ap|H>a)$ ari$e are in a different position in this respect 
tr\MW Uu^ jmnnwoe generally. The first ground, therefore, upon 
which it ha;ii Kn^n sought lo sustain these appeals bdls. 

Th^ s^KSvixd ground upon which it was sought to base the 
\vu\t>^tiM\0Y ot thei$«? api^etUs was that^ assuming Kathiawar not 
K^ W a |\iurt ot tW Kiit^^s dominivnis, still the Courts of the 
As;;^?^t;wu lVii5i<tU A^nU;^ that ot the roli;i«J A^nt^and that of 
tb^ i^vA^nvT in Cox;v,oiU ax>^ all th^ King's Coons^ and that the 
sWisxxv^ ot ihoisi^ triUuials in ih^ imi$«&t eases wen judicial 



LAL. 



VOL. XXXTHQ INDIAN APPEALS. 27 

decisions by those Courts, and therefore subject to review by j. o. 
His Majesty in Council. 1906 

In the Court of the Political Agent this contention was disposed hbmchand 
of in the first of the present cases upon the short ground that i>evchand 
the appellant is not a British subject, and that the right of azam 
appeal to the King in Council " is a birthright and appertains chhotam- 
only to British subjects, unless specially conferred by legislative 
enactment." Their Lordships are unable to concur in the view 
thus expressed. They think that if a Court, administering 
justice on the King's behalf, makes an ordir, judicial in its 
nature, by which some one is unjustly and injuriously affected, 
the person aggrieved is not precluded from applying to the King 
in Council to redress his wrong merely by the fact that he is not 
the King's subject. 

The real question is whether in cases like those now before 
their Lordships the action of the tribunals in Kathiawar, and of 
the Governor in Council on appeal from those tribunals, is pro- 
perly to be regarded as judicial or as political. And at this 
point a distinction arises between the two cases under appeal, 
because the first of them has been disposed of as a civil, the 
second as a poUtical, case. 

As to the cases classed as political, their Lordships think there 
is no room for doubt. The rules issued from time to time for 
the guidance of the Political Agent treat the disposal of such 
cases as falling within his "diplomatic or controlling function," 
and direct him to dispose of them " as he thinks proper." And 
all the other provisions relating to such cases indicate purely 
political and not judicial action. 

The question relating to cases classed as civil gives rise to 
more difficulty, but, upon the whole, their Lordships are of 
opinion that no substantial distinction can be drawn for the 
present purpose between the two kinds of cases. 

There is not necessarily any inherent distinction between the 
nature of poUtical cases and of those treated as civil. It depends 
in some cases solely upon who are parties to the suit. The two 
cases now before their Lordships illustrate this. The first of 
them was a suit brought to enforce a mortgage, the second 
was a suit to redeem a mortgage, yet one of the cases is civil 



28 INDIAN APPEALS. [L. R 

J. c. and the other political, because in the latter a talnkdar above 

1905 the fourth class is a party. 
Hbmchand •'■^® Political Agent is empowered to transfer political cases to 
Dbvohand the civil class, and dispose of them as such, and this power he 

AzAM is encouraged, and indeed directed to exercise freely. 
OHaxyTili'- The instructions from time to time issued by Government as 

^^^- to the disposal of cases suggests strongly that the exercise of 
jurisdiction, both by the Political Agent and by the Courts below 
him, is to be guided by policy rather than by strict law. This 
is illustrated by the notification of Government of June 22, 1900, 
already referred to, on the strength of which the first of the 
present cases (a civil case) was decided. That notification 
appears to follow upon a series of earlier instructions sub- 
stantially to the same effect. It lays down that ** no suit shall 
lie against a tributary chief or talukdar, or against any sub- 
sharer of a tributary chief or talukdar, in respect of any debt 
contracted by the predecessor of such chief, or talukdar, or sub- 
sharer unless" one or other of two conditions is complied with, 
one of which conditions is the approval of the Political Agent. 
In the grounds of appeal before their Lordships questions are 
raised as to the construction and effect of the notification just 
cited. But quite irrespective of those questions, there is no 
doubt as to its validity as a direction by the Executive Govern- 
ment to its own political officers in a foreign State, and it may 
be used as an example of the kind of rules by which the exercise 
of jurisdiction is to be governed. 

The appeal from the Kathiawar Courts to the Governor of 
Bombay in Council might perhaps be regarded as a neutral 
circumstance. But the mode in which such appeals have been 
disposed of has been political rather than judicial. That disposal 
is described in a minute (dated October 11, 1877) of the then 
Governor of Bombay, as being "done in the Political Department 
of the Government itself ; that is, by the Secretary to Govern- 
ment in that Department under the responsible supervision of 
the member of Council to whom .... the political business is 
assigned." 

The further appeal to the Secretary of State in Council is 
a fact of clearer import. In Lord Salisbury's despatch of 



VOL. XXXin.] INDIAN APPEALS. 29 

March 23, 1876, the practice of such appeals is dealt with as J. c. 

a thing at that date already fully established, and it continues 1905 

to the present day in civil as well as in political cases. This HEMCHAin) 

system of appeal to the Secretary of State affords strong evidence ^^^^^-^^"^ 

that the intention of Government is and always has been that Azam 

. Sakarlal 

the jurisdiction exercised in connection with Kathiawar should Chhotam- 

be political and not judicial in its character. ^^^' 

What occurred in and after 1876 points to the same conclusion. 

In the despatch of March 28 in that year, already referred to, 

the Secretary of State, Lord Salisbury, suggested that an Act 

should be passed, general in character but intended specially for 

the case of Kathiawar, enabling the Governor in Council, when 

dealing with appeals, to refer any state of facts or law to the 

High Court for its opinion. The Bombay Government opposed 

the suggestion, and in an official letter of August 22, 1878, 

stated their grounds of objection. After distinguishing between 

** a system of government according to the will of the ruler," 

and ** a system of government according to law," it was said : 

** The cases which come before this Government for adjudication 

are cases which have arisen in States still administered on the 

former principle." " Such cases can only be justly disposed of 

on principles of equity in the fullest sense of the term, and not 

in the circumscribed sense which is fainiliar to the practice of 

the High Courts ; and sometimes consideration must be given to 

the political expediency which underlies the relation in which 

the Government stands to the protected States." The objections 

so stated prevailed. In 1879 Lord Cranbrook renewed the 

suggestion of his predecessor, but effect has never been given 

to it. 

Their Lordships will humbly advise His Majesty that each of 

these appeals should be dismissed. 

There will be no order as to the costs of these appeals. 

Solicitors for appellants : Gill, Pugh d Davey. 

Solicitors for respondents in the first appeal : Solicitor, India 
Office. 

Solicitors for respondent in the second appeal: Holman, 
Birdwood dt Co. 



80 INDIAN APPEALS. [L. B. 



J.c* MAHAEAJAH BAHADUE SIE JOTINDEA) 



1906 
Nop, 16, 28. 



MOHUN TAGOEE j ^^^™^^^^' 



SEIMATI BIBI JAEAO KUMAEI .... Defendant. 

Government Revenue payable by Putnidar — Bengal Regulatum VIII, of 1819, 
B, 3, dause 3 — Rent payable to the Landlord — CoTutruction of KabtdyaU, 

Where payment by the putnidar of the Goyemment revenue is on the 
true construction of the kabulyats part of the consideration rendered by 
the putnidar for the enjoyment of the tenure, and there is no stipulation 
that it is to be dealt with in the same manner as rent : — 

Held, that the Gbyemment revenue so payable by the putnidar was 
not rent payable to the landlord within the meaning of Putni Eegu- 
lation YIII. of 1819, s. 3, clause 3, and was not recoverable as such by 
sale under the Eegulation. 

Appeal from a decree of the High Court (August 6, 1903), 
reversing a decree of the second Subordinate Judge of Hooghly 
(September 20, 1901) so far as it made certain declarations in 
favour of the appellant. 

The question decided was whether, according to the true con- 
struction of two putni kabulyats or counterparts of leases executed 
by the respondent in favour of the appellant, one on the 17th day 
of Jaistha, in the Bengali year 1292, corresponding with May 29, 
1885, and the other on the 31st day of Srabun, in the Bengali 
year 1300, corresponding with August 15, 1893, read with 
Bengal Eegulation VIII. of 1819, the Government revenue of 
Es.40,156 14 9J, payable by the appellant in respect of the 
zemindari the subject of the putni settlement, which the 
respondent undertook to pay into the coUectorate, is rent within 
the meaning of the Eegulation, and as such recoverable under 
the summary provisions enacted for the recovery of putni rents 
by it at the instance of the appellant. The Subordinate Judge 
held that it was, and made the necessary declarations in respect 

♦ Present : LoBD Macnaghtbn, Sm Ford North, Sir Andrew Sooblb, 
and Sir Arthur Wilson. 



VOL. XXXm,] INDIAN APPEALS. 81 

to it. The High Court was of opinion that it was not, and J. C 
disallowed the declarations made by the Subordinate Judge. 1905 

The Subordinate Judge expressed himself as clear that the mah^^kIjah 
Government revenue payable by the respondent under the putni ^^ g^^^ 
agreement was rent. He discussed various clauses of the two Jotindra 

MOHUN 

kabulyats, and recognized that a distinction was made in tagobe 
these instruments between the Es.6000, described as the putni sbimati 
jumma, and the Government revenue. He said : ** The dis- ®^^J^^^ 

tinction seems to have been advisedly made in the kabulyat to 

keep up the difference between the sum of a number of sums 
which were to be paid to the plaintiff personally, and the other 
sum which was to be paid to the collectors of the district. It 
was evidently thought that the clause providing for the cancel- 
ment of the lease on failure of payment would be a sufl&cient 
safeguard to ensure prompt payment of revenue.'* But he con- 
sidered that " this clause " (providing for cancelment) ** being 
against the provisions of the Begulation (meaning s. 3, clause 8) 
cannot have any effect " ; and that, the plaintiff being " entitled 
to sell the putni tenure in default of payment of rent unless 
there are words in the grant depriving him of that right," and 
there being in his opinion ** no such words,'* he was entitled to 
sell the tenure on default in payment of revenue, notwithstand- 
ing the provision for a different remedy, viz., the forfeiture of 
the tenure. 

In appeal, the High Court came to the conclusion that it was 
reasonably clear, upon the construction of the putni kabulyat, 
that the rent was Bs.6000, and that as regards Bs.40,156, the 
putnidar covenanted with the zemindar to pay that sum into the 
collectorate of the district, being the amount of the Government 
revenue, and in effect to indemnify the zemindar against any 
liability in respect of it. The Chief Justice said : " It would be 
straining the language of the deed to say that this sum was rent 
or was ever intended by the parties to be regarded as rent." 
And after referring to the portions of the putni kabulyat, which 
speak of the Bs.6000 per annum as rent, and which distinguish 
between Government revenue and rent, and pointing out that 
under the putni kabulyat the zemindar is expressly empowered 
to recover the putni rent and road, public work, and dak-cesses 



82 INDIAN APPEALS. [L. B. 

J. c. by sale under the provisions of the Regulation, he continued : 

1905 '' It is not possible upon this document to say that this sum of 

Maw^Zrajah Rs.40,156 was rent. The zemindar might, if he had been so 

®^g^^^ minded, and the parties had so agreed, have fixed the rent at 

joTiNDEA Rs.6000, plus the R8.40,156, but in lieu of that he would appear 

MOHUN ^ ^^ 

Tagobb to have preferred to take a round sum of Bs.BOOO for the rent, 

Srimati leaving it to the putnidar to pay the Government revenue. It 

Bmi Jarao may very well be that the defendant, when the bargain was 

made, may have declined to allow the whole sum to be treated as 

rent, having regard to the summary power of sale given by the 
Begulation in the event of its falling into arrear. This view is 
supported by the ekrar of August 15, 1893, by which the putnidar 
agreed to pay an additional rent Rs.lOOO, and in which ekrar 
reference is made to the putni of June, 1885, as having been 
taken on the condition of paying to you (the Maharajah) a putni 
jumma of Es.6000 per year, and Rs.40,156 odd to the coUecto- 
rate on account of the Government revenue. She then agreed to 
pay an extra E8.1000 as rent for the putni, with the same pro- 
vision as to the application of the Putni Kegulation of 1819, as the 
original lease. Upon the construction of the lease this Bs.40,156 
is not, in my opinion, rent, and not being rent, the plaintiff is 
not entitled to put in force the provisions of the Putni Regulation 
of 1819 in the event of its falling into arrear. . . ." 

Cohen, K.C., and W. C. Bonnerjeey for the appellant, contended 
that the view of the Subordinate Judge was right, and that 
the judgment of the Chief Justice proceeded upon an incorrect 
appreciation of the terms of the Regulation VIII. of 1819 and of 
the Revenue Sale Law (Act XI. of 1859). Under the Act payment 
of Government revenue is the first charge on a zemindari, and 
the zemindar is primarily responsible for payment of the same. 
If the respondent had not undertaken to pay the revenue direct 
into the collectorate to suit the appellant's convenience, she 
would have been bound to pay it direct to him as part of the 
rent of the putni. Whether paid to the collectorate or to the 
appellant, it was in either case part of the rent due ; the payment 
to the collector was on behalf of the appellant, and the place 
and mode of payment did not alter the character of the debt 



yoL. xxxm.] Indian appeals. 88 

discharged, which was of rent and not of revenue, the respondent J. c. 
not being liable in any way for the latter. It was rent, more- 1905 
over, as defined in s. 8 of the Bengal Tenancy Act, 1885 (No. VIII., Maharajah 
Indian). Reference was made to s. 10 of that Act and to Regula- ^^|f^^* 
tion VIII. of 1819, s. 8 and s. 8, clause 1. Under s. 8, clause 8, Jotindea 
Government revenue when unpaid is an arrear of rent within tagobb 
its meaning recoverable under the Regulation. The road cess srimati 
returns filed by the respondent under Bengal Act (IX. of 1880) ®?»i ^^^^ 
were referred to as shewing that she had included the amount — 
of Government revenue in the rent payable by her. Reference 
was also made to AsBamdld Khan Bahadv/r v. Tirthabashini (1) ; 
Basanta Kumari Debya v. Ashutosh Chackerbutti. (2) 

Jar dine, K,C., and Phillips, for the respondent, contended that 
the judgment of the High Court was right. On the true con- 
struction of the deeds of 1885 and 1898 the parties deliberately 
fixed the rent of the putni at Rs.6000 only, increased by the 
later document to Rs.7000. She undertook as a distinct 
stipulation to pay the Government revenue to the collector on 
behalf of the appellant. This sum was never payable to the 
landlord, and was therefore not rent in arrear (when unpaid), 
and was not therefore recoverable by sale of the putni under 
the provisions of Regulation VIII. of 1819, s. 8. The parties 
intentionally annexed to default in payment of the Government 
revenue a penalty, viz., forfeiture of the putni. This could not 
under s. 8, clause 8, of the Regulation be applied to default in 
payment of rent ; for by annulling the tenure it would render 
the prescribed sale of it as a tenure impossible. 

Bonneijee replied. 

The judgment of their Lordships was delivered by 1905 

Sir Arthur Wilson. This is an appeal from a judgment JVbr. 28. 
and decree of the High Court at Calcutta, dated August 6, 1903, 
which set aside in part a previous decree of the Subordinate 
Judge of Hooghly. The appeal raises a question as to the 
construction of two putni kabulyats, read in connection with 
the Putni Regulation VIII. of 1819. 

That Regulation, after describing the nature of a putni tenure, 

(1) (1895) I. L. E. 22 Oalc. 680, 683. (2) (1899) I. L. E. 27 Oalo. 67. 

Vol. XXym. D 



84 INDIAN APPEALS. [L E| 

J. c. and laying down certain rules with regard to it, enacted in s. 3, 

1905 clause 8 : — 

Maharajah " I^ case of an arrear occurring upon any tenure of the 

^^ Sib ^^ description alluded to in the first clause of this section, it shall 

jQTiNDBA not be liable to be cancelled for the same, but the tenure shall be 

Taoobe brought to sale by public auction, and the holder of the tenure 

Sbimati ^^^^ ^® entitled to any excess in the proceeds of such sale 

^KuMA^^ beyond the amount of the arrear of rent due . . . . " and a 

summary method of sale was provided. 

Prior to 1885 the defendant, now respondent, held certain 
properties of the plaintiflf-appellant in putni tenure. In May, 1885, 
a fresh arrangement was made, in substitution for the old, the 
terms of which were embodied in a kabulyat, dated the 29th of 
that month, which said : — 

'' I take from you in putni the entire interests in the remaining 
mahals (i.e., eight annas of Mahomed Aminpur) .... by 
fixing the annual jumma at Es.6000 on the conditions 
given below, and by way of security for payment of this 
jumma, I hypothecate to you the properties mentioned in 

Schedule No. 2 

''1. The annual jumma of this putni mahal is fixed at 
Es.6000. I shall pay to you the same without any varia- 
tion by four kists as mentioned in the schedule at your house 
.... by means of chalans, kist by kist, and shall take 

dakhilas. bearing your seal for the same 

"2. Besides the said putni rent I take upon myself the 
duty of depositing into the coUectorate of the said district, the 
Government revenue of Ks.40,156 14 annas 9^ pies fixed 
for the 8-anna share of the said Mahomed Aminpur. Agree- 
ably to the same I shall pay into the coUectorate of the said 
district the said amount of revenue, kist by kist, and shall 
produce before you at Calcutta the chalan for the same, bearing 
seal and signature (of the coUectorate) two days before the last 
payment of the kist." 

Clause 8 provided for the payment of interest on any part 
of the putni rent of Bs.6000 in arrear. 

"4. If I fail to produce before you after depositing the 
Government revenue .... in the coUectorate the chalan 



VOL. XXXHTQ INDIAN APPEALS. 86 

of the deposit of the money .... two days before the last J. c. 
payment of the kist you will be able to deposit in the col- 1905 
lectorate the amount of revenue payable by me within the said mahabajah 
two days' time ; and on your paying into the collectorate the ^"^^ gf^ ^* 
amount of Government revenue payable by me within the said Jotindra 
two days' time, the putni contract, which is hereby made with Tagore 
you, i.e., between you and me, shall become null and void; sbimati 
and you will be able to take khas possession of this putni ^^^^^^^ 

mahal ; and you will realize by sale of my properties, &c., the 

amount of Government revenue deposited by you with interest 
and costs 

" Besides the said putni rent I shall pay to you by four equal 
instalments, along with the putni rent, the amount of road cess 
and public works cess payable from my putni mahal," with 
interest in case of default. 

** 6. I shall pay with the putni rent at intervals of every six 
months, the amount of dak-cess that will be fixed for the 
said putni mahal from time to time," with interest in case 
of default. 

Clause 8 dealt with certain maintenance charges upon the 
share held in putni, created by a former zemindar, as to which 
it was said : — 

" These charges are left to be borne by me That 

amount shall have no connection with the putni rent, and if I do 
not pay to the persons to whom the same may be due and you 
have to pay them the same, you shall also realize the said amount 
with the consequential damages that you may sustain by sale at 
auction of my properties, pledged by way of security for pay- 
ment of the rent for the putni in question and of my other 
properties moveable and immoveable. 

^'9. If the aforesaid putni rent of Bs.6000 and road cess, 
public works cess, dak-cess and interest on every kind of money 
due should fall in arrears, you will be able to realize the whole 
amount due to you with costs by sale at auction of my said 
putni mahal, on instituting proceedings against me, on the 
occasion of each of the two six-monthly instalments in course of 
the year under the provisions of Eegulation VIII. of 1819 

** 10. If the whole amount due to you be not realized by the 

D 2 



86 INDIAN APPEALS. [L. E. 

J. c. sale of my putni mahal, under Regulation VIII. of 1819, you will 

1905 be able to realize tbe unrealized balance, on the amount of a 

MahTeajah defaulted Itist by sale of the properties hypothecated .... and 

bahadub of my other properties, moveable or immoveable, on instituting 

joTiNDRA a suit against me under the law in force for realization of arrears 

MOHUN . , „ 

Tagorb of rent. 

Srimati ^^ August 15, 1898, a new agreement was entered into which 
BiBi Jarao was embodied in an ekrar kabulyat of that date, by which the 

respondent agreed to pay a further sum of Rs.lOOO a year for 

the putni holding to which the former kabulyat related. 

In the fresh kabulyat it was said : — 

"Having according to the said proposal agreed to pay an 
additional rent of Rs.lOOO in respect of the putni which I took 
.... on the condition of paying to you, Maharaja, a putni 
jumma of Rs.6000 per year, and of Rs.40,156. 14 into the 
coUectorate, year by year, kist by kist, as Government revenue 
for the said 8-anna share, I hereby promise and declare in 
writing, that from the present year I shall pay Rs.lOOO in 
excess as jumma for my said putni taluk." 

Before the kabulyat of May 29, 1885, the Bengal Tenancy 
Act (VIII. of 1885) was passed, and it came into operation later 
in the same year. That Act contained a definition of rent 
(s. 3) :- 

" Rent means whatever is lawfully payable or deliverable in 
money or kind by a tenant to his landlord on account of the use 
or occupation of the land held by the tenant." 

This definition seems to express very clearly the meaning of 
the word " rent " as it would be understood without any statutory 
definition. 

The respondent made default in payment of two kists of 
Government revenue and in some instalments of the Rs.7000 
rent and cesses. In or before May, 1901, the appellant petitioned 
the Collector of Hooghly for sale of the putni, under the pro- 
visions of the Regulation, in order to recover the arrears due, 
including therein the amount of the Government revenue, as to 
which the respondent had made default, and which the appellant 
had been obliged to pay. On May 8, 1901, the respondent filed 
an objection to the petition, on the ground that the Government 



VOL. XXXIifQ INDIAN APPEALS. 87 

revenue formed no part of the rent of the putni, and therefore j. o. 
was not recoverable under the Begulation, and the objection was 1905 
sustained by the Collector. MahaeIjah 

On June 7, 1901, the appellant instituted the present suit in Bahadur 
the Court of the Subordinate Judge. In his plaint he stated the Jotikdba 
facts and asked (1.) for a money decree; (2.) that the Court tagobb 
should construe the documents and deolare which of the sums in g^iMATi 
arrear were to be taken as rent, for which the putni might be ®i®i Jabao 

^ ^ KUMARI. 

sold under the Regulation. The Subordinate Judge made the 

money decree as asked for, and declared, amongst other things, 
that the Government revenue payable by the putnidar was a 
part of the jumma of the putni and was recoverable as such by 
sale under the Begulation. 

Against this decree the present respondent appealed to the 
High Court, and that Court set aside so much of the decree as 
contained the declaration above referred to. Against that decision 
of the High Court the present appeal has been brought. 

Had the question turned entirely upon the kabulyat of 1885, 
the matter would, in their Lordships' opinion, have been clear. 
The payment by the putnidar of the Government revenue is no 
doubt a part of the consideration to be rendered by her for the 
enjoyment of the tenure, but it is not money payable to the 
landlord. Nor is it provided in that document that it is to be 
dealt with in the same manner as rent, as is provided in the 
case of cesses. And what is most significant of all, a special 
mode of enforcing the obligation to pay Government revenue 
is provided, namely the cancellation of the tenure in case of 
default; and that is the precise sanction which the law has 
forbidden by the terms of the Regulation in the case of rent. 

But the argument for the appellant was based mainly on the 
second kabulyat, that of 1893. It was contended that the 
words " on the condition of paying to you a putni jumma of 
Rs.6000 per year, and of Rs.40,156 14. into the coUectorate, 
year by year, kist by kist, as Government revenue for the said 
8-anna share," had the effect of making the Government revenue 
a part of the jumma. But even if those words had been used of 
the new arrangement then being entered into, they would not, 
in their Lordships' opinion, have properly borne the construction 



88 INDIAN APPBALa [L. B. 

J. c. contended for. But in fact those words form part of a mere 

1905 recital of the arrangement previously existing, and the nature 

Maharajah ot that previous arrangement is properly to be ascertained frona 

®^1™ the kabulyat of 1885. 

JoTiinjBA For these reasons their Lordships are of opinion that the 

MOHUN . , 

Tagobe contention of the appellant cannot be maintamed. They will 
Sbimati humbly advise His Majesty that the appeal should be dismissed. 
^T?n '^f ^^ The appellant will pay the costs. 



KuMAai. 



Solicitors for appellant : Barrow, Rogers d NevUl. 
Solicitor for respondent : O. C. Farr. 



J. c* MUNICIPAL OFFICEE, ADEN Defendant ; 

1905 AND 

3^7i7^28 HAJEE ISMAIL HAJEE ALLANA and) ^ 

— ^ \ Plaintiffs 

Others . ) 

ON APPEAL FEOM THE HIGH COUET AT BOMBAY. 

Jurisdiction of High Court — Clause 13 o/ Charter of 1865 — Suptrintefndence 
over Resident's Court at Aden — Order removing Suit — Act IL of 1864. 

Held, that under Act 11. of 1864 (India) the Court of the Besident at 
Aden is subject to the superintendence of the High Court of Bombay, 
which, under clause 13 of its charter of 1865, has power to remove and 
try and determine as a Court of extraordinary original jurisdiction a suit 
concerning land in Aden brought in the Court of the Political Besident 
in that place. 

Appeal from an order of the Bombay High Court in its 
extraordinary original civil jurisdiction (July 7, 1903) making 
absolute a rule for the transfer of this suit from the Court of 
the Political Resident at Aden for trial and determination by the 
said High Court. 

The order was made under clause 13 of the charter of 1865, 
which is set out in their Lordships* judgment. 

Present : LoBD Maonaohten, Sib Fobd North, Sib Andrew Sooblb, 
and Sib Arthur Wilson. 



VOL. xxxnt] 



tNDtAK APfKAT^. 



8d 



Officer, 
Aden 

V. 

Hajeb 
Ismail 
Hajee 

Allana« 



The appellant claimed the property in suit as mutawalli or j. c. 
manager of a musafirkhana, or place for the reception of 1906 
Mahomedan pilgrims to Mecca. He sought a declaration of his mukicipal 
title, and payment of an occupation rent during his dispossession 
with other relief. 

The question decided in the appeal was whether the High Court 
had power to make the order of transfer ; which depended upon 
whether the Court at Aden was subject to the superintendence 
of the High Court within the meaning of clause IS. The High 
Court held that it was so subject. '' Act II. of 1864," it said, '' was 
passed after the Charter Act of 1861 and after the original letters 
patent of 1862. Not only is it stated in the preamble of Act II. of 
1864 that it is expedient to provide for the superintendence or 
revision of certain of the judgments and proceedings of the Resident 
at Aden by the High Court at Bombay, but the Act provides in 
B. 81 that the High Court of Bombay shall have power to make 
and issue general rules for regulating the practice and proceed- 
ings of the Court of the Resident, and also to frame forms, &;c., 
all almost in the same language as is to be found in b. 15 of the 
Charter Act. It would seem therefore that the Legislature 
expressly intended that the High Court of Bombay should have 
superintendence over the Court of the Resident. No doubt the 
High Court of Bombay is not the * High Court ' at Aden for such 
pu^rposes as are governed by the definition of the High Court in 
the General Clauses Act; for it is not the highest Court of 
Appeal. There is no appeal from decisions or orders, civil or 
criminal, of the Resident (ss. 8 and 29 of Act II. of 1864). But, 
nevertheless, the High Court may have superintendence over the 
Resident's Court ; and it is clear from ss. 8 to 13 of the Act II. 
of 1864 that in certain cases a litigant in the Resident's Court 
has of right what is practically an appeal to the High Court." 



Coheuy K.C.y and Phillips, for the appellant, contended that 
the High Court had not the power to make the order appealed 
from under clause 18 of its charter of 1865. The Resident's 
Court at Aden is not subject to the superintendence of the High 
Court within the meaning of the said clause IS or of s. 15 of the 
Charter Act (24 & 25 Yict. c. 104). The said clause 18 is in the 



40 



iNtolAK APPEALS. 



[L. fi. 



Officer, 
Aden 

V. 

Hajeb 

Ismail 

Hajee 

Allana. 



J. G same terms as clause IS of the charter of 1862. The words, 
1905 " subject to its supermtendence/* appear also in clause 16 which 
Municipal ^^^ substituted for clause 15 of the earlier charter. The 
Eesident's Court is governed by Act II, of 1864, as amended, at 
least in reference to its Small Cause Court jurisdiction con- 
ferred by s. 14, by s. 2, sub-s. 8, of Act IX. of 1887, which now 
replaces the Act XLII. of 1860 mentioned in s. 14: and see the 

preamble, ss. 8, 9, 10, 14, 81. It was contended that that Act 

did not confer any power of superintendence on the High Court 
beyond the limited power contained in that Act. Those limited 
powers fell short of superintendence within the meaning of the 
charter and the Charter Act. They referred to the Scheduled 
Districts Act (XIV. of 1874), which includes Aden, and to In re 
Thompson. (1) 
Birdwoody for the respondents, was not heard. 

1905 The reasons for the report were delivered by 

Nov, 28. LoBD Maonaohtbn. At the conclusion of the arguments in 
this case their Lordships intimated that they would humbly 
advise His Majesty to dismiss the appeal, and added that the 
costs of the appeal would be paid by the appellant. It only 
remains for their Lordships to state their reasons. 

The suit in which the appeal was presented concerns land in 
Aden. It was brought, and properly brought, in the Court of 
the Political Besident there. The High Court of Judicature at 
Bombay has made an order for the transfer of the suit for trial 
and determination by the High Court itself. 

The authority on which the High Court assumed to act is con- 
tained in clause IB of the letters patent of 1865 for the High 
Court of Judicature for the Presidency of Bombay, which ordains 
that ** the High Court of Judicature at Bombay shall have power 
to remove and to try and determine as a Court of extraordinary 
original jurisdiction any suit being or falling within the juris- 
diction of any Court whether within or without the Presidency of 
Bombay, subject to its superintendence, when the. said High 
Court shall think proper to do so, either on the agreement of the 
parties to that effect or for purposes of justices, the reasons for 

(1) (1870) 6 Beng. L. E. 180. 



VOL xxxm.] 



INDIAN APPEALS. 



41 



Offiobb, 
Aden 

V, 

Hajee 

Ismail 

Hajee 

Allana. 



SO doing being recorded on the proceedings of the said High j. c. 
Court." 1905 

The High Court has duly recorded its reasons for the order of municipal 
transfer. The propriety of the order is not disputed if there was 
power to make it. The only question, therefore, is whether the 
Court of the Resident at Aden is " subject to the superintendence " 
of the High Court of Bombay. To answer that question it is, in 
their Lordships' opinion, sufi&cient to refer to Act II. of 1864 of 
the Governor-General in Council. By that Act, subject to 
certain amendments contained in Act IX. of 1887, the adminis- 
tration of civil justice at Aden is now regulated. The preamble 
of the Act contains a recital to the effect that certain judgments 
and proceedings of the Resident at Aden are not subject to the 
superintendence or revision of any Court of justice except so far 
as they are subject to appeal to His Majesty in Council, and that 
it is expedient to provide for "the superintendence " or revision 
of such judgments and proceedings by the High Court at 
Bombay. No appeal is to lie from any decision or order of the 
Resident. But provision is made for a reference to the High 
Court at Bombay in a great number of cases, and in every case 
the Resident is bound to dispose of the matter before him 
conformably to the decision of the High Court. Then s. 81 
declares that the High Court shall have power to make general 
rules for regulating the practice and proceedings of the Court of 
the Resident, and also to frame forms for every proceeding for 
which the High Court shall think it necessary that a form should 
be provided, for keeping all books, entries, and accounts to be 
kept by the officers, and for the preparation and submission of 
any statements to be prepared and submitted by the Court of the 
Resident, and from time to time to alter any such rule or form, 
provided that such rules and forms shall not be inconsistent with 
the provisions of the Act or any other law in force. 

The learned counsel for the appellant, while admitting that 
the Court of the Resident was to a certain extent subject to the 
superintendence of the High Court of Bombay, contended that 
the superintendence, such as it was, was not so thorough or 
complete as to satisfy the requirements of clause 18 of the letters 
patent of 1865 when rightly understood. In support of this 



42 



INDIAN APPEALS. 



[L. fi. 



J. C. 
1905 

Municipal 

Opficeb, 

Adbn 

V. 

Hajbe 

Ismail 

Hajee 

Allana. 



view they asked their Lordships to compare and contrast the 
language of clause 18 with the language of s. 15 of 24 & 25 Yict. 
c. 104, usually called ** the Charter Act/' and to notice in s. 15 
the stress laid on the existence of appellate jurisdiction which 
ought, they said, to he imported into clause 18 of the letters 
patent, and, at^ the same time, to observe the omission from that 
clause of the power of transfer conferred by s. 15 of the Charter 
Act. The answer to this ingenious, though somewhat con- 
tradictory, argument is simple enough. The power of transfer 
contained in the Charter Act has nothing to do with the power 
of removal conferred by the letters^patent, and the letters patent 
make superintendence, not appellate jurisdiction, the condition 
of the exercise of the power of removal which the High Court at 
Bombay has put in force. 

Solicitor for appellant : Solicitor, India Office. 
Solicitors for respondents : Holman, Birdwood d Co. 



J.C* JAWAHIE SINGH Plaintiff; 

1905 AND 

iv^8. SOMESHAR DATT and Others Defendants. 

ON APPEAL FROM THE COURT OF THE JUDICIAL 
COMMISSIONER OF OUDH. 

Mortgage — Oonstrtidion — Usufructuary Clause controlled by the Context, 

Where the prima facie meaning of one clause in a mortgage deed was 
that the mortgagee entering into possession accepts the profits in lieu 
of interest : — 

Heldf in a suit for redemption, that by the true construction of this 
clause it was qualified by other clauses which should be read in con- 
junction therewith and not rejected for inconsistency, and that the 
mortgagor was liable to make good the deficiency of profits, with 
compound interest on the amount thereof. 

Appeal from a Court of the Judicial Commissioners (June 15, 
1903) modifying a decree of the Subordinate Judge of Sitapur 
(June 27, 1901). 

♦ Present : Lord Davey, Sir Ford North, Sir Andrew Scoble, and 
Sir Arthur Wilson. 



VOL. xxxm.] 



INDIAN APPEALSL 



48 



The question decided was as to the construction of a mortgage J. c. 
deed dated October 27, 1888, the clauses of which are sufficiently 1906 
set out ii:i their Lordships' judgment. The appellant sued for jawahib 
redemption, contending that by the true construction of the deed ®^^^^ 
the profits were to be taken by the mortgagee in possession in lieu Someshab 
of interest. The mortgagees contended that they were entitled to — 
principal and compound interest as stipulated, subject to a liability 
to account for the profits realized by them while in possession. 

Both the Courts below decided this question of construction in 
favour of the respondents. 

W. C. Bonnerjeey for the appellant, contended that on the true 
construction of clause 6 of the mortgage deed no interest was due, 
for the receipt of rents was to be taken in lieu of interest. It was 
contended that clause 11 should not be read therewith, but 
should be rejected as being repugnant to and inconsistent with it. 
In any event compound interest should not be decreed, for the 
mortgagees never rendered any account from which it could be 
ascertained what was the amount of interest left unpaid. 

De GruytheVf for the respondents, was not heard. 



The judgment of their Lordships was delivered by 

Lord Davey. In this case there has been a good deal of liti- 
gation in the Courts below, but Mr. Bonner jee, in opening the 
appeal, has very fairly narrowed the points which he thought he 
could properly bring to the attention of the Board. 

The appellant is the representative of a mortgagor who 
executed a mortgage so far back as October 27, 1888, and the 
suit was brought to redeem a portion of the mortgaged property 
in which the appellant is interested. The provisions of the 
mortgage deed are somewhat peculiar. It is a compound of an 
ordinary mortgage and a usufructuary mortgage. The mortgage 
is for three years (clause 2) ; the interest is to be at the rate of 
1 rupee 3 annas per cent, per mensem (clause 8), and clause 4 is 
as follows : — 

** In the event of non-payment of interest yearly, the mort- 
gagee will have power either to realize the principal with interest 
through a Court or get a new deed charging the property executed 



1905 
Nov. 28. 



44 INDIAN APPEALS. [L. E. 

J. c. in lieu of interest. If, as a mark of favour, the mortgagor lets 

1905 the interest remain unrealized, then in such case the interest 

jawahib shall be added to the principal from the date of its becoming due 

Singh ^^^ interest at the said rate will run on it, as if its original 

SoMBSHAR formed part of the principal and within the term or after it till 
Datt, 
the date of realization, this rate of interest and compound 

interest shall continue." 

That provision very clearly makes the principal money payable 
with compound interest. Clause 6 then provides as follows : — 

"After taking possession the mortgagee will be entitled to 
receive the net profits after paying the Government revenue and 
village expenses, &c., in lieu of interest and during the time of 
her possession the interest and profits shall be deemed equal." 

If that clause stood alone it might possibly be construed as an 
ordinary usufructuary mortgage in which a mortgagee entering 
into possession accepts the profits in satisfaction of the interest. 
But that clause does not stand alone. There is a further clause 
(clause 11) which appears to their Lordships to qualify the prima 
facie meaning which might be attached to it. Clause 11 (so far 
as material for the present purpose) is to this effect : — 

"If during the period of possession of the mortgagee, after 
depositing the Government revenue and defraying the village 
expenses, &c., the profits do not cover the amount of interest, 
we, the mortgagors, will make good the deficiency from our 
pockets in accordance with the accounts prepared by the agents 
of the mortgagee. If we cannot make good the deficiency we 
will pay it with interest at the rate mentioned above at the time 
of redemption." 

The first point taken is that that clause is inconsistent with 
clause 6. Their Lordships agree with the Court below in their 
inability to find anything inconsistent between the two clauses. 
Clause 11 no doubt qualifies what would be the prima facie 
meaning of clause 6; but they are perfectly capable of being 
read together. 

The second point is that the deficiency of the interest which 
the mortgagor undertook to pay by clause 11 does not carry 
compound interest. There again their Lordships agree with the 
Court of the Judicial Commissioner, Beading the whole deed 



VOL. XXXTTTQ 



INDIAN APPEALS. 



45 



together there can be no doubt that compound interest should be j. c. 

paid. In the first place this deficiency of interest is precisely i905 

such interest as is mentioned in clause 4, where it says : " If» jawahir 

as a mark of favour, the mortgagor lets the interest remain Singh 

unrealized." There is nothing in clause 11 to take away the someshab 

Datt 
express provision contained m clause 4 with regard to interest * 

which remains unrealized, and the words " We will pay it with 

interest at the rate mentioned above at the time of redemption," 

must, in their Lordships' opinion, be taken to be only a concise 

way of bringing in the application of clause 6 to the interest 

which the profits are insufficient to pay. This is made clearer 

by clause 7, which provides that the villages are to be redeemed 

when " the whole of the principal, interest, compound interest, 

and all dues against the tenants are paid in a lump sum." 

Their Lordships see no reason, therefore, for diflfering from 

the conclusions at which the learned judges in the Court of the 

Judicial Commissioner have arrivpd, or from the reasons which 

are expressed in their judgment. They will, therefore, humbly 

advise His Majesty that the appeal should be dismissed. The 

appellant will pay the costs of those respondents who appeared 

in the appeal. 

Solicitors for appellant : T. L. Wilson d Co. 

Solicitors for first two respondents : Barrow^ Rogers d Nevill. 



46 INDIAN APPEALS. [I'. R 



[ Plaintiff; 



J.c* SEI EAJA VENKATA NAEASIMHA APPA 
1905 EAO BAHADUR ZEMINDAE GAEU 

June 29 ; AND 

'^^Zht* SRI RAJA SOBHANADRI APPA RAO \ 
— BAHADUR ZEMINDAR and Others . . I ^^^^n^^^^^' 

ON APPEAL FROM THE HIGH COURT AT MADRAS. 

Service Tenures — Orantees willing to perform them — Lands not liable to 

Resumption, 

A zemindar has no right to resume grants of land which have been 
made subject to a burden of service, so long as the grantees or holders 
are willing and able to perform the services incident to their tenure, 
whether they are required or not. 

Rajah Leelanund Singh v. Thakoor Munoorunjun Singh, (1873) L. K 
Ind. Ap. Supp. Vol. 181, followed. 

Upon an issue of fact whether a grant was on a service tenure or in 
lieu of wages it appeared that no designated office was conferred, but an 
obligation of a feudal character was imposed, that when services were 
exacted they were paid for in money, that a uniform rent had been paid 
for 120 years without alteration, that the lands had descended by 
inheritance, in either case without any claim of interference, and that 
there had been no instance of an attempt to resume : — 

Held, that it was established that the lands were held on a fixed 
tenure, and were not resumable. 

Appeal from a decree of the High Court (September 9, 1902) 
reversing a decree of the Subordinate Court of Kishna (March 27, 
1900). 

The suit was brought by the appellant against the first 
respondent, the Zemindar of Telaprole, and a ward of the Court 
of Wards, and sixteen other defendants, to recover possession of 
the village of Hanumantunigudem, together with mesne profits. 

The village in question formed part of the ancient Zemindari 
of Nuzvid (the history of which appears in the judgment of the 
Judicial Committee of the Privy Council in Venkata Narasimha 
v. Narayya (1)), and it was granted by one of the zemindars to 

* Present : Lord Davey, Sik Ain)BEW Scoble, and Sib Abthub WiJiSOJ^. 



(1) (1879) L. E. 7 Ind. Ap. 38. 



VOL. XXxmj INDIAN APPEALS. 47 

the ancestors of the sixteen respondents. Subsequently (viz., j. o. 
in 1783) the zemindari was confiscated by Government on 1905 

account of the rebellion of Narayya, the then zemindar. Having gR^nRljA 

been granted in the following year to his eldest son, it was again venkata 

JN ARA8IM HA 

resumed by Government for arrears of revenue in 1793, and in appa rao 
1802 two zemindaris were carved out of it. One of these, which zbmindab 
retained the name of Nuzvid (or the six Pergunnas of Nuzvid), ^^^^ 
was granted to Eamachandra, the second son of Narayya the „ Sri raja 

, , , . , . . . 1 . t -.. SOBHANADBI 

rebel, and he received in respect of it a sanad m the ordinary appa Rao 

form under Eegulation XXV. of 1802. This document was dated zemindar. 

December 8, 1802 ; and in the list attached to it the village in 

suit was mentioned among mokhasa villages. Bamachandra was 

succeeded by his son and then by his grandson, on whose death 

a suit was instituted, which resulted in the partition of the estate 

among his six sons, in accordance with the judgment of the 

Judicial Committee above referred to. The partition under the 

decree was finally carried out in January and February, 1882. 

The appellant, and the father of the first respondent, who were 

among the parties to that suit and who were brothers, were each 

put into possession of a one-sixth share of the estate. The 

village in suit is within the ambit of the appellant's share. 

In 1894 the appellant sent a notice to the mokhasadars 
stating that he no longer required their services, and demanding 
to resume the service mokhasas ; and on March 20, 1899, sued 
for possession and mesne profits. 

The plaint alleged that the ancestors of the mokhasadars 
became servants of the Zemindar of Nuzvid, ** each nayak 
undertaking to be present with fourteen peons, to be on attend- 
ance and keep watch, to have the crops reaped and the heaps 
threshed, and to keep watch over the heaps, to watch the sources 
of irrigation, and to accompany the zemindar when he goes a 
hunting, carrying spears, muskets, and other weapons, and to 
render such services" ; and that, "in lieu of paying salaries to 
the ancestors of the mokhasadars for the rendering of the said 
services, the village called Hanumantunigudem, attached to 
the zemindari of Nuzvid .... was granted to them as a 
service mokhasa subject to the payment of kattubadi at the rate 
of Bs.l44 per annum to the zemindar ; and that the ancestors 



48 INDIAN APPEALS. [L. E. 

J. 0. of defendants 2 — 17 (the mokhasadars), and subsequently, until 

1905 some time ago, the major number of the defendants, were 

SBrSljA rendering service in the said manner." It further stated that the 

K^S^MHA ^PP^l'^^^* became entitled to the village on the partition of the 

appa Rao Nuzvid estate ; that the services were rendered irregularly for 

Zemindab some time, and ceased about four years before suit, and that the 

^tf ^ plaintiff does not desire that they should be rendered in future, 

Sei Raja but it was not stated that they were on any occasion refused. 

Appa Rao The first respondent, who held the village under leases from 

"D A ▼# A T|TT'1> 

Zemindab. ^^^ mokhasadars, denied that the village was granted under 
the condition or for the purpose alleged, and in particular 
that the grant was made in lieu of wages for the services 
mentioned ; and also denied that it was resumable or had ever 
been resumed. He pleaded that the village had been in pos- 
session of the ancestors of the mokhasadars long before the 
permanent settlement as an inam subject to the payment of 
kattubadi of Bs.l44, and had since been held and enjoyed by 
them and their descendants. 

The Subordinate Judge decreed in favour of the appellant. 
He held that the village had been granted on account or in lieu 
of wages for services to be rendered by the grantees. 

The High Court held on the evidence that the village was granted 
by the zemindar in perpetuity, though subject to a burden of 
service, and that the grant was not made simply as payment for 
the services in lieu of money ; and accordingly that the plaintiff 
was not entitled to resume it. 

C. W. Arathoon {W. C. Bonnerjee with him), for the appellant, 
contended that upon the evidence the village was resumable at 
his option, having regard to the nature of the tenure. It was 
held in lieu of wages for services to be rendered, and the 
zemindar was entitled to dispense with the services and resume 
the village. He cited Koolodeep Narain Singh v. Mahaheo Singh (1) ; 
Forbes v. Meer Mahomed (2) ; Radha Pershad Singh v. Budhu 
Dashad (3) ; Mahadevi v. Vikrama (4) ; Sanniyasi Razu v. Zemindar 

(1) (1866) 6 S. W. E. 199. (3) (1895) Ind. L. R. 22 Oalc. 940. 

(2) (1870) 13 Moo. Ind. Ap. 438, (4) (1891) Ind. L.R. 14Madr.365. 
464, 466. 



VOL. XXXm.] INDIAN APPEALS. J^ 

of Saku (1) ; Kooldeep Narain Singh v. Oovemment of India. (2) j. c. 
This was a grant for personal services to the zemindar, who can 1905 
dispense with them and resume : see Joykishen Mookerjee v. SBrSljA 
Collector of East Burdvan (3), and the definition of mokhasa J^^^'^J^ 
grants in Wilson's Glossary ; Narasayya v. Venkatagiri (4) ; appa Rao 
Neelanund Singh v. Surwan Singh. (5) Zbmindab 

Cohen, K.C., and Kenworthy Brown^ for the first respondent, ^^^ 
contended that the High Court rightly held that the village was _ ^ei Raja 

DOBflAJ^AJdfil 

not resumable at pleasure. The evidence shewed that the appa rao 
village had been uninterruptedly in the family of the original zbmindab. 
grantee, passing by succession from father to son without objec- 
tion by the zemindar. Also that there had been no resumption 
or attempt at resmnption of the grant until 1894 ; that quit 
rent, or kattubadi, had been paid at the favourable rate of 
Bs.l44 without variation. The mokhasadars had always per- 
formed the services incident to their tenure, and were still able 
and willing to render them. It was not held by right of any 
office conferred upon the original grantee in such way as to be 
annexed to the office ; the grant was of the tenure reserving the 
services which had never been refused. Under these circum- 
stances, the appellant had shewn no right to resume it. They 
referred to Forbes v. Meer Mahomed (6) ; Kooldeep Narain 
Singh v. Oovemment of India (2) ; Rajah Leelanund Singh v. 
Thakoor Munoorunjun Singh (7) ; and Fifth Report of Select 
Committee on the affairs of the East India Company, Madr. ed. 
vol. 2, p. 4. Adverse possession for fourteen years (1882 — 1896) 
was a bar to the suit: see Secretary of State for India v. 
Krishnamoni Owpta.{Q) 
Arathoon replied. 

The judgment of their Lordships was delivered by 1905 

Sir Andrew Sooblb. The Zemindari of Nuzvid, in the Nov, 15. 
Madras Presidency, after protracted litigation, into the history 

(1) (1883) Ind. L. E. 7 Madr. 268. (4) (1899) Ind. L. E. 23 Madr. 262. 

(2) (1871) 14 Moo. Ind. Ap. 247, (6) (1866) 5 S. W. E. 292. 
255, 257. (6) 13 Moo. Ind. Ap. 438. 

(3) (1864) 10 Moo. Ind. Ap. 16, 45 ; (7) L. E. Ind. Ap. Supp. Vol. 181. 
and see (1868) 7 Moo. Ind. Ap. 128, (8) (1902) L. E. 29 Ind. Ap. 104. 
132. 

Vol. XXXTTT. E 



60 INDIAN APPEALS. [L. E. 

J. 0. of which it is unnecessary to enter, was partitioned in the year 

1905 1882. At the partition a sixth share of the estate was allotted 

SBrRAjA to the plaintiff and appellant, including the village of Hanu- 

Na^simha J^aiit^iiigudem, which is the subject of the present proceedings. 

appa Rao Prior to the partition, the father of the first respondent had 

Bahadur . 

Zemindar obtained from the other sixteen respondents or their predecessors 

^^ in title, whom it will be convenient to designate as the mok- 

Sc^i^ADBi '^^s^^^rsj leases for thirty years of the lands held by them in 

Appa Rao the village under mokhasa tenure, and the term of these leases 

Zemindar, is still unexpired. The appellant claims that the leases are 

invalid, and that he is entitled to resunie the village. The 

Subordinate Judge decided in his favour, but the High Court, 

on appeal, reversed the decision. The sole question which their 

Lordships now have to determine is whether, having regard to 

the nature of the tenure, the village is resupable at the option 

of the appellant, the zemindar. 

There is no doubt that Hanumantunigudem is what is known 
as a mokhasa village. The learned judges of the High Court 
say that "Mokhasa is a well-known tenure in the Northern 
Circars ; and the term itself implies that it is a tenure subject 
to service." In Wilson's Glossary, mukhasa or mokhasa is said 
to be irregularly derived from an Arabic word signifying " to 
have as one's own," and is defined as " a village or land assigned 
to an individual, either rent free or at a low quit rent, on con- 
dition of service." There is no deed or sanad containing the 
particulars of the grant in this case, but the evidence shews 
that the village has been held by the mokhasadars and their 
ancestors on a quit rent of Es.l44 per annum from .a period 
antecedent to the introduction of the British Government, and 
that the service to be rendered was that of one naik and fourteen 
peons, whose duty it was to guard the zemindar's fort and 
treasury, to watch over the reaping and threshing of the crops, 
and to attend the zemindar on his hunting or military expe- 
ditions. These services, it is clear from a report of the Inam 
Commission, were rendered down to 1860, when a mokhasadar 
represented that, "in consequence of the proximity of his 
village to Nuzvid, the call for their service was incessant " ; 
and the obligation is recognized in the leases granted to the 



VOL. XXXm.] INDIAN APPEALS. 61 

first respondent's father by the mokhasadars in 1881 in which J. c. 
there is a stipulation that they shall ''render service to the 1905 
zemindar according to custom." There has, therefore, been no gBrSIjA 
breach of this condition on the part of the respondents. Both ^^^^^^^ 
Courts in India agree in holding that " the mokhasadars hold appa Bag 
their lands conditional upon the performance of the services/' zemindab 
which have been already specified. ^^^^ 

The question remains whether the zemindar can dispense „ ^^^ ^^^ 

^ . ^ SOBHANADBI 

with the services and resume the land ; and upon this point the Appa Rao 

Courts below diflfered. The Subordinate Judge held that "in zem^ndab. 

the absence of any evidence .... as to an absolute grant, 

or as to a gift burdened only with a condition of service, the 

only conclusion that can be come to upon the evidence in 

the case is that the village was granted by the zemindar 

before 1780 to an ancestor of the (mokhasadar defendants), 

for the purpose of rendering the services above mentioned"; 

and he found upon a specific issue that the grant was in lieu 

of wages. 

The learned judges of the High Court came to an opposite 
conclusion upon the facts. " In the first place," they say, " no 
oflSce by any particular designation was conferred upon the 
original grantee, but an obligation of a feudal character was 
imposed upon him. He was simply to provide a specified 
number of men as custodians, so to speak, of the zemindar's 
property, and their services appear to have been rendered inter- 
mittently and not continuously. Besides, they were paid in 
money when they actually performed such services .... that 
is to say, batta was given to them when actually on duty. It is 
also certain that in later years their services were not in frequent 
requisition, because, as Mr. Taylor points out in his report, the 
zemindar would have had to pay in the shape of batta more 
than the services were worth. In the second place, the follow- 
ing circumstances indicated as plainly as possible a fixity of 
tenure. The mokhasadars have paid a uniform rent of Es.l44 
a year for the last 120 years without alteration at any time, and 
the land has descended from father to son hereditarily. There 
has been no instance of resumption or even an attempt at 
resumption during all tl^is tiuie* There has also been no attempt 

E 2 



62 INDIAN APPEALS. [L. B. 

J. c. to enhance or to alter the rent, or to interfere with the devolu- 

1905 tion of the property from heir to heir." 

SBrSIjA Without altogether adopting the further reasons adduced by 

vbnkata the learned judges in support of their view, their Lordships are of 

appa Rao opinion that the considerations above stated are sufficient to 

Zbmikdab establish that the grant in this case was a grant subject to a 

Gabu burden of service, and was not a mere grant in lieu of wages. 

8bi Raja This disposes of the case, for it is well settled that where lands 

SOBHANADBI 

Appa Rao are held upon such a grant, ** as long as the holders of those 
ZE^nKDAB. gi^Ants are willing and able to perform the services, the zemindar 

has no right to put an end to the tenure whether the services 

are required or not " : Rajah Leelanund Singh v. Thakoor Munoo- 
runjun Singh, (1) 

Great stress was laid in the Courts below upon a statement 
contained in a note to an " Abstract of the Eevenue Collections 
in the Noozeed Zemindari," prepared by the Circuit Committee 
in 1786, in which it is stated that *' the mockawsaw villages and 
grants being immediately under the zemindar, and given or 
resumed when he pleases, are included in Government collec- 
tions." The Circuit Committee was appointed by the Govern- 
ment ** to inquire into the state of the Northern Circars," with a 
view, inter alia, to the settlement of the revenue, and their Lord- 
ships would have been disposed to attach importance to this 
piece of contemporary evidence as to the relations between the 
mokhasadars and the zemindar, were it not that it appears from 
the Fifth Eeport of the Select Committee on the affairs of the 
East India Company (vol. 2, p. 4 of the Madras edition) that 
** few of the members of (the Circuit Committee) appear to have 
been acquainted with the native languages, and, as it is stated 
by themselves, they depended wholly for what intelligence they 
obtained on those subjects, on the zemindars and the native 
officers in the villages, the very persons most interested to 
conceal the truth, and to impose upon them false information." 
Their Lordships agree with the learned judges of the High 
Court that although the records of the Circuit Committee may 
be good evidence with reference to the system upon which the 
Government claimed to deal with the zemindar's property, they 
(1) L. E. Ind. Ap. Supp. Vol. 181, at p. 186. 



yoL. xxxm.] 



INDIAN APPEALS. 



68 



cannot affect the rights qf the mokhasadars as against the 
zemindar, with regard to which no independent inquiry appears 
to have been made. 

Upon these considerations, their Lordships will humbly advise 
His Majesty that the decree of the High Court of Madras ought 
to be confirmed, and this appeal dismissed. The appellant will 
pay the costs of the first respondent who alone defended the 
appeal. 

Solicitors for the appellant : J. L. Wilson d Co. 
Solicitor for the first respondent: Solicitor, India Office, 



1905 

Sbi Raja 
Venkata 
Narasimha 
Appa Rao 
Bahadur 
Zemikdab 
' Gabu 

V, 

Sbi Raja 
sobhanadbi 
Appa Rao 
Bahadub 
Zbmindab. 



KUNWAE SANWAL SINGH Plaintiff; J.c* 

AND 1905 

RANI SATEUPA KUNWAE Defendant. 2V^22. 

ON APPEAL FROM THE COUET OF THE JUDICIAL 
COMMISSIONER OF OUDH. 

Practice — Concurrent Findings of Fact — Act 1 of 1869, s, 22 (4.) — Treated in 
all respects as a Son, 

Concurrent findings of fact that the appellant had not been treated in 
all respects by his maternal grandfather as his own son, within the 
meaning of s. 22 (4.) of Act 1 of 1869 ; and that, according to the custom 
of the family, a daughter's son does not succeed to the property of his 
maternal grandfather, will not be disturbed. 

Umrao Begam v. Irshad Husain, (1894) L. E. 21 Ind. Ap. 163, followed. 

Appeal from a decree of the above Court (March 2, 1900) 
afl&rming a decree of the Additional Civil Judge of Lucknow 
(July 8, 1877), and dismissing the appellant^s suit. 

There were three questions dealt with by the Court below, via. : 
(a) whether the suit was instituted within three years from 
the appellant's majority; (6) whether he was entitled to the 
taluqdari and jagir estate under clause 4 of s. 22 of the Oudh 
Estates Act, 1869, as having been treated by his maternal grand- 

* Present: LoKD Maonag^[T?n, Sib ^bED Nobth, 8i^ ANpB^iw Scp:i?iJg; 
^d 8p( ABT5(xm Wn4SW% 



54 



INDIAN APPEALS. 



[L. E. 



J.O. 
1905 

EUNWAS 

Sanwal 
Singh 

r. 

Rani 

Batbupa 

KUNWAB, 



father (the Bajah) in all respects as his own son ; and (c) whether 
he was excluded by castom governing the families of Eatyar 
Thakurs, of which the Bajah was the head, from inheriting the 
non-taluqdari portion of the estate if it did not follow the 
devolution of the taluqdari portion. The Additional Civil Judge 
found (a) and (b) in the negative and (c) in the aflSrmative. The 
Court of the Judicial Commissioner differed from him as regards 
(a), but affirmed his findings as to (b) and (c), and in the result 
the appellant^s suit was dismissed by both the Courts in India. 

In granting leave to appeal to His Majesty in Council, the 
Court considered that, inasmuch as it had not affirmed the 
Additional Civil Judge on point (a), its decree could not be said 
to affirm the decision of the Court below : see Rajah Tasadduq 
Rasul V. Manik Chand (1) ; but it certified that there were sub- 
stantial questions of law. 

De Oruyther, for the appellant, after contending that the suit 
was barred by limitation, cited Umrao Begam v. Irshad Husain (2) 
as to the concurrent findings of fact. 

Haldane, K.C, and W. C. Bonnerjee, for the respondent, were 
not heard. 



1905 The judgment of their Lordships was delivered by 

Nov. 22. Lord Macnaghtbn. In their Lordships' opinion this case is 
concluded by the concurrent findings of the Additional Civil 
Judge of Lucknow and the Judicial Commissioners. Both 
Courts have gone into the case with minute care, and their 
Lordships consider that the issues of fact have been disposed of 
in a very satisfactory manner. Both Courts have found that 
the appellant, who was the plaintiff in the Court below, was not 
treated in all respects by Hardeo Bakhsh as his own son, and 
therefore was not entitled to the statutory right of succession 
under clause 4 of s. 22 of Act 1 of 1869. It has also been found 
that, according to the custom of the family, a daughter*s son 
does not succeed to the property of his maternal grandfather. 

Those findings are sufficient to dispose of the appeal ; but it 
may not be out of place to repeat what was laid down in the 
(1) (1902) L. R 30 Ind. Ap. 35. (2) L. B. 21 Ind. Ap. 163, 166, 



VOL. xxxm.] 



INDIAN APPEALa 



65 



case of Umrao Begam v. Irshad Htisain (1), to which Mr. De 
Gruyther has called their Lordships' attention. The question, 
said Lord Hobhonse in delivering the judgment of the Board in 
that case, " is not only a question of fact, but it is one which 
embraces a great number of facts whose significance is best 
appreciated by those who are most familiar with Indian manners 
and customs. Their Lordships would be specially unwilling in 
such a case to depart from the general rule, which forbids a 
fresh examination of facts for the purpose of disturbing concurrent 
findings by the lower Courts." 

Their Lordships will, therefore, humbly advise His Majesty 
that this appeal should be dismissed. The appellant will pay 
the costs of the appeal. 

Solicitors for appellant : Watkins dt Lempriere. 
Solicitors for respondent : T. L. Wilson & Co. 



J.O. 

1906 
KUNWAB 

Sanwal 
Singh 

V. 

Kani 
Sateupa 

KUNWAE. 



MUTSADDI LAL and Another Plaintiffs; 

AND 

KUNDAN LAL Defendant. 

ON APPEAL FEOM THE HIGH COUET AT ALLAHABAD. 

Hindu Law of Adoption — Hushand's authority to his Widow to adopt — Rights 
and Duties of Widow, 

All the schools of Hindu law recognize the right of the widow to adopt 
with her husband's authority, which may be given either orally or in 
writing, and when given must be strictly pursued. She cannot, however, 
be compelled to act upon it unless and until she chooses to do so, and in 
the absence of express direction to the contrary there is no limit to the 
time within which she may exercise the power conferred upon her. 

Case in which upon oral evidence, in reference to which the Courts 
below differed, their Lordships found that the authority to adopt was 
given and strictly pursued. 

Appeal from a decree of the High Court (January 23, 1902) 
reversing a decree of the Subordinate Judge of Saharunpur 

* Present : LoBD Macnaghten, Sib Fobd Nobth, Sib Andbew Scoblb, 
and Sib Abthub Wilson. 



J. C* 

1905 
Nov. 16. 

1906 
FeCu. 



(1) L. E. 21 Ind. Ap. 163, 166. 



56 INDIAN APPEALS. [L. B. 

J. c. (June 17, 1898). The plaintiff Balmakand was predecessor in 

1906 title to the appellants and saed under the circumstances stated 
MuTSADDi ^ their Lordships' judgment for a decree declaring that the 

^^^ respondent Eundan Lai was not the adopted son of Badri Das, 
EuNDAH deceased, and that a deed executed by his widow on August 28, 

— .' 1894, in which she stated that she had legally adopted the 
respondent in the previous May, was null and void as against the 
plaintiff, and for consequential relief. The respondent pleaded 
that the widow according to the custom of the husband's family 
inherited his estate absolutely, and was by the custom competent 
to adopt without her husband's authority ; but that she had 
obtained that authority and had validly adopted the respondent. 
The First Court substantially decreed the suit, but the High 
Court dismissed it on the ground that the authority to adopt had 
been amply proved and that the adoption was valid. 

Ro88j for the appellants, contended that the authority to adopt 
was not proved, and that without that proof there could not be 
a valid adoption. If the evidence was suflBcient to prove it, it 
was not strictly followed, and in consequence the adoption 
was ultra vires and invalid. 

C. W. Arathoon, for the respondent, was not heard. 

. 1906 The judgment of their Lordships was delivered by 

Feb. 14. giR Andbbw Scoblb, The suit which gives occasion to this 

appeal was brought by one Balmakund, claiming to be the 
reversionary heir of one Badri Das, deceased, against Mussamat 
Jamna, the widow of Badri Das, and Eundan Lai, the present 
respondent, whom she was alleged to have illegally adopted after 
her husband's death. Balmakund and Jamna have both died 
since the institution of the suit. The present appellants are 
Balmakund's representatives, and the whole question between 
them and the surviving respondent is whether the adoption of 
the latter by Mussamat Jamna was a valid adoption. 

Badri Das was one of a family of Marwari Banias from Jaisul- 
mere, who had settled at Jalalabad, in the Saharunpur district 
of the United Provinces, where he died childless on October 27, 
1888. After his death, his widow entered into possession of his 



VOL. xxxm.] 



INDIAN APPBALa 



57 



property, in which she had, at all events, a life estate. On 
Aagust 17, 1891, she executed a deed of sale of a village which 
had been purchased with money left by her deceased husband ; 
and three years later, on August 14, 1894, Balmakund filed a 
suit in the Court of the Munsif of Eairana for a declaration of his 
rights as reversioner against Mussamat Jamna and the purchasers 
of the village. Prior to the institution of this suit, on May 12, 
1894, the widow adopted the present respondent, and on 
x^ugust 28, 1894, she executed a deed confirming the adoption. 
The Munsif held the adoption valid, and dismissed Balmakund's 
suit on August 15, 1895. This decision was upheld on appeal 
by the Subordinate Judge of Saharunpur. Balmakund there- 
upon brought the present suit to set aside the adoption. 

An attempt was made, in the early stages of the suit, to set up 
a custom among the Marwari Banias of Jaisulmere, under which 
the power of widows in regard to adoption was greatly extended ; 
but the attempt failed, and the Subordinate Judge held that the 
case was governed by the Mitakshara law. This is probably 
true, but the High Court pronounced no decision upon this 
point, and it is unnecessary for their Lordships to determine it. 
All the schools of Hindu law recognise the right of the widow to 
adopt a son to her husband *' with the assent of her lord." It is 
equally well established that this assent may be given either 
orally or in writing; that, when given, it must be strictly 
pursued ; that she cannot be compelled to act upon it unless and 
until she chooses to do so ; and that, in the absence of express 
direction to the contrary, there is no limit to the time within 
which she may exercise the power conferred upon her. 

In the present case both Courts below held the fact of the adoption 
proved, but they differed upon the question whether the widow had 
been authorized by her husband to adopt. The learned Subordinate 
Judge did not believe the witnesses. "They not only," he says, 
"contradict each other on material points, but have made impro- 
bable and false statements, and at least" (three of them) "are 
partial to the defendant, and their evidence cannot be considered 
to be as good as that of independent and disinterested witnesses." 
The learned judges of the High Court, on the other hand, say: — 

" We are wholly unable to agree with the learned Subordinate 



J. c. 

1906 

mutsaddi 
Lal 

KUNDAN 
liAL. 



68 INDIAN APPEALS. [L.R 

J. C. Judge in rejecting the evidence adduced to establish this fact. 

1906 On the contrary, we think that the evidence is worthy of credit, 
MuT8lj)Di ^^^ amply sufficient to justify a finding in favour of the 

^^^ appellant. Not merely is it ample in itself, but it is supported 
EuNDAK by the probabilities of the case, and under these circumstances 

— .' we find the authority to adopt has been proved." 

Their Lordships have had the difficult task of deciding between 
these conflicting opinions, without having seen or heard the 
witnesses, and without the assistance which is not unfrequently 
derived from documentary evidence. It is worthy of notice, 
however, that the story told in this suit is the same as that told 
in the suit before the Munsif of Eairana one or two years 
previously ; and that in the meantime the appellants had ample 
opportunity to test its accuracy ; but they produced no evidence 
in rebuttal, and were unable materially to shake the witnesses 
for the respondent on cross-examination. Mussamat Jamna had 
died before she could be examined in this suit ; but her state- 
ment made in the previous suit in the Munsif 's Court was put 
in evidence. What she says is this : — " Six or seven days before 
his death Badri Das told me in the forenoon to adopt a boy. 
.... He did not mention any boy, but said, ' Adopt whom- 
soever you may like. Adopt the boy of the man of Sirsawa 
only.'" The Sirsawa man was one Hardeo Das, a friend and 
caste-fellow of Badri Das, one of whose sons was ultimately 
adopted by her. Further on she says : — 

''Badri Das gave authority to adopt during his illness. He had 
been ill for three months, and when he told me to adopt a son, he 
perhaps had no hope of his life. It was in the three-arched room 
facing the east, and forming part of this house that he told me to 
adopt a boy. I and my three sisters-in-law (husband's sisters) 

were there at that time These three sisters-in-law are now 

dead.'' And later on, she says : — " Badri Das told me to adopt a 
boy within a year or two, i.e,, at any time I liked after his death." 
The statement of the widow is corroborated by three witnesses, 
Chiranji, a brother-in-law of her husband ; Baldeo Das, her own 
brother; and Chhajju Mai, her nephew. All three appear to 
have been frequently with Badri Das during his last illness, and 
all concur that he authorized her to adopt one of the sons of 



VOL. xxxm.] 



INDIAN APPEALS. 



59 



Lal 

V. 
KUNDAN 

Lal. 



Hardeo Das of Sirsawa ; but none say that he named the boy to j. c, 
be adopted, or the time within which the adoption was to be 1906 
made. It is true that two of these witnesses belonged to the mutsaddi 
widow's family; and it was matter of just observation by the 
learned counsel for the appellant that Hardeo Das, the father of 
the boy adopted, who is said to have been present also when the 
authority to adopt was given, was not called. But the evidence 
forthcoming in eases of this character is seldom entirely complete 
or satisfactory. Here, so far as it goes, it is all on one side ; 
and their Lordships see no good reason for discrediting it 
altogether. They accordingly concur with the opinion of the 
learned judges of the High Court on this point. 

But, it was argued, assuming the authority to adopt to have 
been given, it was not " strictly pursued." The direction to adopt 
one of the sons of Hardeo Das must, it was urged, be taken 
to mean one of the sons of Hardeo Das then living ; and the boy 
adopted was not then born. The direction was also to adopt 
"within a year or two " ; and the adoption was in fact not made 
until about six years after the death of Badri Das. Their 
Lordships are not disposed to place so narrow a construction 
upon the words said to have been used by Badri Das. Hardeo 
Das had at that time four sons, but no one of them was specially 
named, and all the dying man apparently desired was that one 
of this particular family should be selected ; and their Lordships 
consider that the direction was sufficiently complied with by the 
adoption of the respondent, who was of a more suitable age for 
affiUation than his elder brothers. As regards the period within 
which the adoption was to be made, the widow expressly says that 
the words "within a year or two" were qualified by the further 
words " at any time I Uked," and these are wide enough to cover 
the period which actually elapsed before the adoption was made. 

Upon a review of the whole case their Lordships will humbly 
advise His Majesty that the decree of the High Court ought to be 
confirmed and the appeal dismissed. The appellants will pay 
the costs of the appeal. 



Solicitors for appellants : Barrow, Rogers dk NevUl. 
Solicitors for respondent : T, L* Wilson dt Co* 



60 INDIAN APPEALS. [L. B. 



J.O.* GANGAMOYI DEBI Plaintiff; 

1906 AND 

J\r^4. TEOILUCKHYA NATH CHOWDHRY and 



, Defendants. 

1906 Another 

Feb^6. Q^ APPEAL FROM THE HIGH OOUET IN BENGAL. 

Begutration of WUl — Preemption that it i» duly effected — Otitis prohandi as to 
irregularity — Evidence as to Character of identifying Witnesses, 

Under the Eegistration Act the registration of a will is performed in 
the presence of a competent official appointed to act as Begistrar, whose 
duty it is to attend the parties during the registration and see that the 
proper persons are present and are competent to act and are identified to 
his satisfaction : — 

Held, that it will be presumed that all things done before him in his 
official capacity and verified by his signature have been done duly and 
in order ; and that the evidence in this case was insufficient to prove that 
a deliberate fraud upon him had been successfully committed. Evidence 
as to the general reputation and character of the two identifiers of 
the testator before the Registrar, whose signatures were proved, is 
inadmissible to throw doubt upon the bona fides of the transaction. 

Appeal from a decree of the High Court (March 25, 1901), 
setting aside a decree of the Subordinate Judge of Bajshahye 
(April 7, 1898) and dismissing the appellant's suit. 

The suit was brought by the appellant as widow and heiress of 
Brojo Nath Chowdhry, who died on the 11th Bysack, 1274 B.S. 
(April 23, 1867), entitled to a one- third share of the properties 
scheduled to the plaint. At the time of his death the remaining 
two-thirds of the scheduled properties, vested, as to one of them, 
in his younger brother Mathura Nath Chowdhry, father of the 
respondents, and as to the other of them, in his mother, Baj 
Lakhi Debi, as heiress to his predeceased brother, Jadab Chunder 
Chowdhry. Mathura Nath's third share on his death, and 
subsequently Baj Lakhi Debits share on her death, vested in the 
respondents. 

The prayer of the plaint was to recover the said third share 

♦ Present : LoKD Macnaghten, Sir roup 1S[obth, Sir ^np^w Sgo?;^^ 
g^d SWi Art^b 1Yh*80«, 



VOL. XXXm.] INDIAN APPEALS. 61 

with mesne profits from Magh, 1808 B.S., the date of the dis- j. o. 
possession of her share. Down to that date the appellant alleged i905 
there had been joint possession and enjoyment thereof, the ganoamoti 
appellant being entitled to a one-third and the respondents to a ^^^^ 
two-thirds share, the parties being governed by the Hindu Law Troi- 
of the Bengal School. nath 

The respondents denied the widow's possession after her ^^otohry. 
husband's death and pleaded limitation, which was overruled by 
a concurrent finding of fact as to the appellant's possession 
within the statutable period. They also set up the will in suit. 

The Subordinate Judge held that the suit was not barred by 
limitation; and that it was not satisfactorily proved that the will 
was genuine. With regard to its registration the Subordinate 
Judge commented upon its purporting to have been effected at 
the office ''and not by a commission issued, although the testator 
was so weak that he did not survive even twenty-four hours " ; 
also upon " the general reputation of character which the two 
identifiers in the registration office enjoyed." No circumstances, 
he remarked, were deposed to which rendered it probable that 
Brojo Nath was capable of going to the registration office and of 
personally admitting his execution of a will. 

The High Court also held that the suit was not barred, giving 
the appellant the benefit of the doubt as to her continued joint 
possession. They pointed out that as the Hindu Wills Act, 1870, 
had not been enacted at the time of the death of Brojo Nath 
Chowdhry no probate could be obtained of the will, that it had 
been acted upon in the matter of granting a putni, that the 
conduct of the parties had been throughout consistent with its 
provisions, and that it was well proved, particularly as it had 
been registered by the Collector at the instance of Brojo Nath 
Chowdhry himself. 

Cowelly for the appellant, contended that the First Court was 
right in finding on the evidence that the will was not proved to 
have been duly executed, and that it was incredible that Brojo 
Nath had attended at the registration office in less than twenty- 
four hours before his death from fever and phthisis. There were 
concurrent findings that the will had not been acted upon, except 



62 INDIAN APPEALS. [L. B. 

J. c. that it was recited on one occasion in a conveyance, and that 

1906 joint possession had been continued for thirty years regardless of 

ganoamoyi ^*^ provisions. The onus probandi was on the respondents to 

Debi give some credible and probable account of the circumstances 

Tboi- surrounding the execution and registration of the will, and as far 

nath ^^ possible of the execution itself. Beference was made to s. 28 

Chowdhry. of ^^5t XV. of 1877 and arts. 142 and 144, Vasudeva Padhi 

Khadanga Garu v. Maguni Devan Bdkshi MahapatnUu Garu (1) 

and Gossain Dass Chunder v. Issur Chundernath (2), on s. 29 of 

Act IX. of 1871. 

Bonnerjee, for the respondents, contended that the will was 
shewn to have been acted upon in the matter of the appellant's 
annuity. The appellant as a widow was not entitled to separate 
maintenance so long as she remained in joint possession. No 
probate could be obtained of the will before the Hindu Wills Act 
of 1870, and probate was not compellable under the Probate and 
Administration Act, 1881. The appellant was not in receipt of 
her third of the joint income, but only of the allowance under the 
will augmented by consent. There was no evidence of persona- 
tion before the Kegistrar, and no motive shewn for a gross fraud. 
Cowell replied. 

1906 The judgment of their Lordships was delivered by 

Feb, 16. Sir Ford North. The only question to be decided on this 

appeal is, whether the appellant's husband, Brojo Nath 
Chowdhry, who died on April 23, 1867, died intestate, as the 
appellant alleges, or left a will, as the respondents contend. If 
he did make that will, the appellant is out of Court. The 
Subordinate Judge of Kajshahye decided in the appellant's favour, 
holding that the will was a forgery; but the High Court of 
Judicature at Fort William reversed that decision, and dismissed 
the appellant's suit, with costs. 

Hari Nath Chowdhry, who married Eaj Lakhi Debi, and died 
many years before 1867, left three sons, who succeeded to their 
father's property, viz., Brojo Nath Chowdhry, the appellant's 
husband ; Mathura Nath Chowdhry, who died about 1870, and 
whose sons are the respondents on this appeal ; and Jadab Nath 
(1) (1901) L. E. 28 Ind. Ap. 81, (2) (1877) Ind. L. E, 3 Calc. 2^4, 



VOL. XXXm.] INDIAN APPEALa 68 

Chowdhry, who died before 1867, intestate and unmarried, j. c. 
whereupon his mother, Raj Lakhi Debi, succeeded to his share 1906 
in the father's estate. . GanoImoyi 

Brojo Nath Chowdhry resided at Sarippur or Kasimpur, in the ^^^^ 
district of Rajshahye; but some months before his death he Tboi- 
removed to Nattore, on account of his health, and there he nath 
remained until he went to Rampura. There is no doubt that ^^owdh^^- 
while at Nattore he was very ill, and ultimately his recovery was 
considered hopeless. While he was there a cousin and great 
friend of his named Girish Ghunder Lahiri — who seems to have 
been in a superior station in life, and had received the title of 
Bai Bahadur — came over to Nattore, and took Brojo Nath 
Chowdhry back with him to his own house at Rampura, where 
he stayed till he died. The appellant and one of her witnesses 
say the death was only two days after the removal ; while two 
witnesses for the respondents put it at five or six days and ten or 
twelve days respectively. The doctor also who was called in at 
Bampura says he attended him for five or six days, and he saw 
from the first that the case was hopeless. On the day before his 
death, according to the respondents' evidence, he went to the 
registry office, and there at 4 p.m. presented for registration the 
will in dispute. It bore his signature and seal, and was attested 
by five witnesses. Four of those witnesses died before the trial > 
but the fifth, the doctor of Brojo Nath Chowdhry, was called as a 
witness. The execution of the will was admitted by Brojo Nath 
Chowdhry, who was identified by two witnesses, and then the 
will was registered.. Each of these four stages was verified by 
the signature of W. S. Wells, the Registrar. This was on 
April 22, 1867. The doctor says in his evidence that he signed 
this will in the presence of Brojo Nath Chowdhry, and at his 
request, after some discussion with him as to whether he should 
make a will or not. He thought he attended Brojo Nath 
Chowdhry for five or six days. He said that many other persons 
were present when he signed the will, but he did not know 
whether any other witness or the testator had signed when he 
did. He also said that many respectable people came in to see 
the testator during the time of his attendance. The Subordinate 
Judge declined to believe this witness because there was some 



64 INDIAN APPEALS. |X. E. 

J. c. doubt as to an apparent alteration in the date of his attestation 
1906 of the will, and the explanation he gave was not clear. But this 
GanoImoyi ^^ ^^* wonderful, as the event had happened thirty-one years 
Debi before ; and the High Court thought, and their Lordships think, 
Troi- that the reasons for not giving weight to the evidence of this 
Nath witness are quite insufiGicient. They see no reason to doubt his 
Chowdhey. veracity. 

Another reason why the Subordinate Judge doubted the validity 
of the will was on the ground of the absence of any other 
respectable witnesses to it besides the doctor, and the probability 
that other persons were present who would have been more 
likely to be asked to attest it than the persons whose signatures 
were afiGixed to it. But there is not one word in the evidence 
affecting the respectability and competency of the four attesting 
witnesses, all of whom were dead before the trial. 

Then the judge also stated that ''the general reputation of 
character which the two identifiers in the registration office 
enjoyed " tended to throw a cloud of doubt upon the bona fides 
of the transaction. Such evidence of the general reputation of 
the character of those persons (who are both dead) ought not to 
have been admitted at all. But it was admitted, and is insuffi- 
cient to prove what it was said to prove. It would be waste of 
time to discuss it. But that the signatures of the identifiers 
were their true signatures was clearly proved. 

Then another circumstance relied upon by the learned judge 
was " the untimely hour of registration at the registration office 
.... though the testator was so weak that he did not survive 
even twenty-four hours." The hour was 4 p.m., which prima 
facie is not unreasonable ; and if the evidence of the appellant is 
to be believed her husband had taken a much longer journey 
(from Nattore to Bampura) on the previous day without appa- 
rently being any worse from it. The appellant also says that on 
the day in question many gentlemen of the town came in and 
saw her husband. Then Lakhi Nath Mazumdar, who was at the 
registry, says that he saw Brojo Nath Chowdhry arrive there in 
a palanquin to get the will registered, and saw him sign and seal 
the registration. A little further on he says that at the request 
of Brojo Nath Chowdhry he came to see him at Kampura four or 



VOL. XXXTHQ INDIAN APPEALS. 65 

five days before his death ; that sometimes he was helped to sit J. c. 
up, and sometimes used to get and sit up himself unaided ; that 1906 
on the morning of the next day he told him a will had been ganoImoti 
executed, and shewed him the will, but did not request him to ^^^^ 
be a witness ; that for two or three days before his death he Teoi- 

T TTf< I f H V A 

could at times get up and sit up unaided, but from one day nath 
before his death he lost the power of getting and sitting up "^^°^^^' 
unaided. He was taken in a palanquin. The mukhtar Baboos 
helped him to sit up, and he sat up and admitted the will. Then 
Iswar Chandra Ghose says that on the day just preceding his 
death he saw him going out of his lodgings in a palki, with a 
view to go to the Court. This evidence would be quite sufficient, 
in their Lordships' opinion, to answer the observations of the 
Subordinate Judge. But they desire to put the case on a higher 
ground. The registration is a solemn act, to be performed in 
the presence of a competent official appointed to act as registrar, 
whose duty it is to attend the parties during the registration 
and see that the proper persons are present and are competent 
to act, and are identified to his satisfaction ; and all things done 
before him in his official capacity and verified by his signature 
will be presumed to be done duly and in order. Of course it may 
be shewn that a deliberate fraud upon him has been successfully 
committed ; but this can only be by very much stronger evidence 
than is forthcoming here. And this must be specially borne in 
mind, that no witness has been found who will say that the 
signature of Brojo Nath Chowdhry in the will and in the regis- 
trar's book is not in his handwriting. The contrary is expressly 
stated by Lakhi Nath Mazumdar, who adds that his signatures 
when in good health were%etter than these. The learned judge 
did not believe this witness ; nor that he was present at the time, 
upon the ground that if he had been he would probably have 
been invited to attest the will ; but this difficulty does not weigh 
much with their Lordships. 

It is also suggested that Brojo Nath Chowdhry was presumably 
under the influence of his brother Mathura Nath Chowdhry, and 
was very possibly induced by 'him to make the will. This 
assumes, of course, that it was executed by him. But this 
suggestion was not raised by the pleadings, and is entirely 

Vol. XXXTTT. P 



66 INDIAN APPEALS. [L. E. 

J. c. unsupported by any evidence, and need not be farther considered. 
1906 The will does not seem unreasonable for a gentleman in the 
gangamoyi position of Brojo Nath Chowdhry, and has a genuine look about 
Dbbi it^ The testator says that, considering the smallness of his 
Tboi- property, he does not wish to adopt a son, and vests his property 

T TTf* K H V A 

Nath i^ his brother Mathura, that he may perform all ceremonies and 
Chowdhby. inaintain his wife during her life, and his four unmarried 
daughters, and also give those daughters in marriage, and, if 
there was any diflSculty about living together, the appellant was 
to have from Mathura an allowance of Bs.l20 a year at the rate 
of Bs.lO a month for her maintenance, which allowance Mathura 
should get after the wife's death. He then added that he had 
married his eldest daughter, and she was to have Bs.48 a year 
for her maintenance at the rate of Bs.4 a month, and he pro- 
vided that if Mathura did not pay the allowances and daughters' 
money then he charged them on his estate. Subject to the 
above the estate was to go to Mathura. 

But it is said that the will was suppressed and never acted on. 
This also is not in accordance with the evidence. It has been 
proved that the allowance to the eldest daughter has always 
been paid ; that the younger daughters have been provided for 
out of the estate on their marriages ; and that the appellant also 
has been paid first Bs.lO, afterwards Bs.lS, and after that 
Bs.20 per month, the reason for the increase being that she 
complained that her allowance was not sufficient, and some 
increase should be made. The Subordinate Judge said that the 
will was wisely and prudently kept dark, and that the fact that 
the appellant was paid twice as much as she was entitled to under 
the will shewed that there was something rotten in the core of 
the will, and therefore precaution was taken that the appellant 
should have no occasion to dispute it. Their Lordships depre- 
cate this suggestion as not supported by any of the proofs in the 
case ; and have no doubt that the increase of allowance was made 
by Mathura at the suggestion of Girish Chandra Lahiri Bai 
Bahadur, for the reason above mentioned. Excluding the 
evidence of the appellant, which the High Court declined to 
accept as reliable, there is no evidence that the appellant ever 
claimed any share in the income of the estate. 



VOL. XXXm.] INDIAN APPEALS. 67 

Their Lordships are clearly of opinion that the decision of j. c. 

the High Court now appealed from was correct, and should be 1906 

affirmed; and they will humbly advise His Majesty that this ginoamoyi 

appeal should be dismissed. ^^^^ 

The appellant must pay the costs of the appeal. tboi- 

LUGKHTA 

Nath 
Solicitors for appellant : Barrow^ Rogers dt NeviU. Chowdhbt. 

Solicitor for respondents : W. W. Box. 



VENGANAT SWAEOOPATHIL VALIA NAM- 1 , J. c.» 

BIDIAVEEGAL f ^^^^^^^^' 1906 



CHEEAKUNNATH NAMBIYATHAN and [ 



AND Feb, 15. 

Eespondents. 



Anotheb 

Ex pa7^ VENGANAT SWAEOOPATHIL. 

Practice — Petition for Special Leave — Reasons of High Court for re/using 

Certificate, 

Where a certificate for leave to appeal is refused by the High Court, 
it is desirable that the reasons should be stated. 

This was a petition for special leave to appeal from two 
decrees of the High Court dated February 15, 1905, on the 
ground that substantial questions of law were involved, and the 
value of the subject-matter was over the appealable amount. 

The High Court, on September 28, 1905, dismissed two 
applications for leave to appeal therefrom without giving any 
reasons. 

De GruytheTt for the petitioner. 

The judgment of their Lordships was delivered by 
Lord Davby. Their Lordships do not think that this is a 
case in which they can advise His Majesty to grant special leave 

♦ Present ; Lorp Davky, Sw Andrew Scobi^s, and Sib Arthur Wilsok. 

F2 



68 



INDIAN APPEALS. 



[L. R 



J. C. 

1906 

Venoakat 

SWABOO- 
PATHIL 

Valia 
Nambidi 

AVBBOAL 

Cheba- 

KUNNATH 

Nambi- 

YATHAN. 

Vknoanat 

SWABOO- 
PATHIL, 

£iv parte. 

J. C* 
1905 

MvTu, 15, 
16. 

1906 
March 21. 



to appeal. Their Lordships desire to add that it would be con- 
venient if the High Court, on future occasions, in refusing a 
certificate for leave to appeal, would be good enough to state the 
grounds on which they refused it. 

Solicitors for the petitioner : Lawfirrd, Waterhouse dt Lawford. 



Plaintiffs; 



CHAUDHBI MEHDI HASAN and Othbrs . 

AND 

MUHAMMAD HASAN Defendant. 



ON APPEAL FROM THE COUET OF THE JUDICIAL 
COMMISSIONER OP OUDH, LUCKNOW. 

Mahomedan Law — Deed of Qift — Possesion — Consideration, 

By Mahomedan law the bolder of property may aliene it by deed of 
gift, accompanied by delivery of the thing given, so far as it is capable 
of delivery ; or by deed of gift coupled with consideration, in which case, 
although delivery of possession is unnecessary, yet actual payment of 
the consideration must be proved, and also a bona fide intention on the 
part of the donor to divest himself in prsesenti of the property and to 
confer it on the donee. 

In a suit to set aside a registered deed of gift purporting to be for 
consicLeration : — 

Held, that on the evidence, it was proved that no consideration 
passed or was intended to pass ; that the plaintiff did not intend to 
give the property to the defendant (except subject to a reservation 
expressed in the deed) ; that the deed was not followed by delivery of 
possession ; and, consequently, that the deed was fictitious and void. 

Appeal from a decree of the Court of the Judicial Commissioner 
(July 81, 1899), reversing a decree of the Subordinate Judge of 
Barabanki (September 26, 1898), and dismissing the suit. 

The question decided was whether a deed of gift executed 
under the circumstances stated in their Lordships' judgment 
by the plaintiff, Mehdi Hasan, in favour of the defendant, 
Muhammad Hasan, on July 28, 1886, was executed as a nominal 

* Present: LoBD Maonaqhtei^, Sib Foio) Nobth, Sir Ai^prew Soob£B» 
and Sib Abthub WiLSoir. 



VOL. XXXin.] INDIAN APPEALS. 69 

transaction not intended to have effect according to its purport, J. c. 
and whether the plaintiff was entitled to obtain cancellation of 1906 
the same. Chaudhbi 

The suit was brought in 1897. The plaint alleged that the ^»^^ 
plaintiff, when he was going on a pilgrimage to Mecca, executed «. 
the deed of gift as a nominal transaction, and that both before hasan. 
and after its execution he had been in possession. The defendant 
pleaded that the deed of gift was made on account of natural love 
and affection, that it was intended to operate according to its 
purport, and that possession was delivered to the donee. 

The Subordinate Judge found on the evidence that the deed 
of gift was fictitious, and was not intended to be acted upon 
during the lifetime of the executant. 

In appeal the Court of the Judicial Commissioner agreed with 
the Subordinate Judge in finding that the consideration of 
Bs.2000 was not paid by the defendant, and that the probability 
was that it was not intended that any consideration should pass 
for the deed of gift. 

Its conclusion was thus expressed : — 

" Upon a review of the whole of the evidence, I am of opinion 
that the plaintiff has failed to prove that the deed of gift was a 
sham and fictitious transaction, that it was not intended that it 
should operate as a deed of gift, that it did not operate as a deed 
of gift, and that possession was not actually transferred under it 
to the donee. 

'^ I find that in executing the deed of gift the plaintiff did 
intend to give his property to the donee; that the gift was 
followed by delivery of possession, and that effect was given to 
the instrument as a deed of gift by the plaintiff. 

'^ The plaintiff having failed to estabUsh that the deed of gift 
was fictitious and benami, his suit must be dismissed." 

Ro88j for the appellants, contended that the evidence shewed 
that the deed of gift of July, 1886, was a nominal and fictitious 
transaction, which was executed by the plaintiff on his departure 
for Mecca subject to the understanding between him and the 
defendant that the latter should be in charge of the villages com- 
prised therein during the plaintiff's absence and manage them 



70 INDIAN APPEALS. [li.E. 

J. c. on hiB behalf. The plaintiff did not go to Mecca till long 

1905 afterwards, and although matation of names was effected, the 
Chaudhbi evidence shewed that the plaintiff never parted with actual 

h^^jSJ possession, and the defendant never obtained proprietary posses- 
«. sion nor paid any consideration money. He referred to Ranee 

Hasan. Khujoorroonissa v. Roushun Jehan, (1) 

De Gruyther, for the respondent, contended that the evidence 
was in favour of a bona fide and genuine transfer of property. 
Consideration passed, the deed was registered, and mutation of 
names effected. The respondent had exercised acts of ownership 
over the property by executing mortgages and instituting suits. 
To all of those acts and to payment of Government revenue in the 
respondent's name the plaintiff consented. The plaintiff only 
enjoyed that portion of the property which the deed of gift reserved 
to him. He contended that actual possession had been given, and 
that therefore the finding that no consideration had passed was 
immaterial. He referred to Meer Usdoollah v. Mvssumat Beeby 
Imaman (2) ; Sajjad Ahmad Khan v. Kadri Beg am (3) ; Nawab 
Umjad Ally Khan v. Mussum^at Mohumdee Begum (4) ; and 
Transfer of Property Act, c. 7, ss. 128, 129, the effect of which 
sections is that s. 128 does not apply to Mahomedans. Gases 
which have arisen amongst Hindus are collected in a note to 
s. 129 : see Stokes, Anglo-Indian Codes, Vol. I. p. 812. 
Ro88 replied. 

1906 The judgment of their Lordships was delivered by 

March 21 SiR FoRD NoRTH. This action was commenced in the year 
1897 to have a deed dated July 28, 1886, and executed by the 
plaintiff, Chaudhri Mehdi Hasan, declared void and cancelled. 
The Subordinate Judge of Barabanki made a decree to that 
effect ; but this was reversed, and the suit was dismissed, on 
appeal to the Court of the Judicial Commissioner of Oudh, on 
July 81, 1899. 

Just before that appeal Mehdi Hasan (hereinafter referred to 
as the plaintiff) had sold part of his interest to two persons 

(1) (1876) L. E. 3 Ind. Ap. 291, (3) (1895) I. L. E. 18 AUah. 1. 
305, 307. (4) (1867) XI Moo, Ind. Ap 5X7, 

(2) (1836) 1 Moo, Ind. Ap. 19. o47. 



VOL. XXXm.] INDIAN APPEALS. 71 

who, by an order of the Judicial Commissioner dated May 10, J. c. 

1899, were joined as co-plaintiffs with him, and these three 1906 

persons are now the appellants. Ohaudhbi 

Chaudhri Nabi Bakhsh, who died many years ago, had three h™^^ 

sons — Mehdi Hasan, the plaintiff; Hadi Hasan, who is still ,, «^- 

^ Muhammad 

living, and whose son is the defendant Muhammad Hasan ; and Hasan. 

Razzak Bakhsh, who disappeared before 1880 and has not been 

heard of since. He left two children, Abdus-Sattar and Abdul 

Ghaffar. 

At the date of the above-mentioned deed the plaintiff was 
the owner of one-third share in the villages of — (1.) Udaria, 
(2.) Chhilgawan, (3.) Akbarpur, (4.) Raushanabad, (5.) Sarawan, 
(6.) an under-proprietary holding and two houses in Nidura, and 
(7.) certain sir lands and groves of comparatively small value. 
He was also owner of the entirety of a house at Chhilgawan. 
The other two-thirds of the above-named properties (except the 
house at Chhilgawan) belonged respectively to Hadi Hasan, 
and to Abdus-Sattar and Abdul Ghaffar. 

Of the above lots 1, 2, 4, and ^ivere in the possession of mort- 
gagees ; and the rest (other than the house at Chhilgawan) were 
in the possession of the co- sharers. 

By that deed the plaintiff stated that in lieu of Bs.2000 he 
had made a gift with consideration to the defendant and had 
received the money in full, and no portion thereof was due by the 
donee ; that he had placed the doxiee in possession of the villages, 
but as he had no other property to live on he had set apart from 
the profits of Akbarpur the sum of Rs.l64. 4 annas for necessary 
expenses so long as he and his wife should live, and after their 
deaths the defendant should have the property. Subject to a 
certain other small exception he gave the defendant all his 
proprietary rights in the gifted property. 

Shortly afterwards the deed was registered, the plaintiff 
admitting its execution by him, and that he had before execution 
received the full sum of Es.20(X). Some little time afterwards 
mutation of names in favour of the defendant was made in the 
registers. 

It is not in dispute that at the date of the deed the plaintiff 
and defendant were on friendly terms, and that a marriage (which 



72 INDIAN APPEALS. [L. E. 

J. c. came off about six months later) between the defendant and a 
1906 daughter of a sister-in-law of the plaintiff was in consideration. 
Chaudhbi ^' ^^^^ *™® ^^^ plaintiff was contemplating a pilgrimage 
Mbhdi tQ Mecca, with his wife, and desired to provide for the manage- 
V. ment of his property by the defendant during his absence. 
Hasak. There is voluminous and conflicting evidence as to the persons 
by whom, and circumstances under which, the deed was prepared, 
and how it attained its final shape ; and it is impossible to go 
through the evidence in detail, there being upwards of 100 
witnesses in the case. But stating their view shortly their 
Lordships consider it proved that in the first instance the 
plaintiff proposed to give the defendant a power of attorney to 
manage his property during his absence ; that the defendant 4id 
not like thtli, and asked Muhammad Baza of Nidura, Bazzak 
Bakhsh, Muhammad Baza of Atahra, and Sajid Ali, who were all 
friends of his, to try and persuade the plaintiff to make it a deed 
of gift, as this would be much better than a power of attorney : 
that they agreed to do so, and called upon the plaintiff accord- 
ingly, and endeavoured so to persuade him ; that the plaintiff 
at first refused, but upon the defendant agreeing to pledge his 
oath that during the life of the plaintiff and his wife he would 
not in any way interfere with their possession, the plaintiff 
withdrew his objection ; that the defendant then said that there 
should be some consideration in the deed ; and on the plaintiff's 
objecting to this change the persons present to advise the 
plaintiff to do what the defendant wished joined in chorus, 
saying " Life is uncertain ; as you are willing to execute a gift, 
why not execute hiba-bil-iwaz, because otherwise the gift would 
be considered to be collusive " ; and that the plaintiff again 
yielded to their persuasion, and at their instance consented to a 
consideration being inserted. The defendant stated in his 
re-examination that the gift was made hiba-bil-iwaz because 
Asghar Ali. suggested that it was necessary, so that it could not 
be impugned or challenged afterwards by any of the plaintiff's 
heirs and relations. And in his defence in this action he pleads 
that as the deed was made for a valuable consideration it could 
not be set aside. 

The Judicial Commissioner of Oudh, who delivered the 



VOL. XXXm.] INDIAN APPEALS. 78 

judgment in the Appeal Court, said that he was not prepared to J. c. 

place reliance on the evidence of Bazzak Bakhsh, Muhammad 1906 

Baza of Nidura, Sajid Ali, and Muhammad Baza of Atahra. ohaudhbi 

Bazzak Bakhsh is in a somewhat different position from the has!^ 

others. There was a conflict of evidence as to whether the deed «• 

Muhammad 
in question was drafted by Bazzak Bakhsh ; or was drafted by Hasan. 

Asghar Ali, and fair copied by Bazzak Bakhsh. The learned 
judge took the view that Asghar Ali was the draftsman, and 
disbelieved Bazzak Bakhsh, although the Subordinate Judge held 
him to be a respectable witness who, in his opinion, had spoken 
the truth. But the Judicial Commissioner gave no reason for his 
refusal to believe the three others ; and the Subordinate Judge 
saw all of them and believed them ; and their Lordships do not 
see any reason for treating them as unworthy of credit. A power 
of attorney is a document frequently used in India ; and they are 
of opinion that it is far more probable that the plaintiff first pro- 
posed a power of attorney, but was induced by the persuasion of 
the defendant's friends to go further and execute a deed, than 
that the plaintiff should voluntarily have proposed to give all his 
property (except a few rupees) out and out to the defendant. 

Then the next matter for consideration is whether the deed is a 
deed for value, for which the consideration of Bs.2000 was paid, 
or is a deed for which no value was really given, a hiba-ism- 
farzi. Upon this issue the Subordinate Judge examined the 
evidence with great patience and care, and came to the con- 
clusion that no valuable consideration had ever passed, and that 
the deed of gift was not for value and was fictitious. 

The Judicial Commissioner said upon this point : — 

** I agree with the lower Court in being of opinion that the 
consideration of Bs.2000 was not paid by the donee. The 
Subordinate Judge has given good reasons for his finding. I 
refer also to the evidence of the witness Ibad Ali. The 
probability is that it was not intended that any consideration 
should pass for the gift." 

At this stage it would be sufficient to say, in most cases, that 
there being concurrent findings in two Courts below on a ques- 
tion of fact, the matter must be treated as closed. But with a 
view to the subsequent part of the case, it is desirable to refer 



74 INDIAN APPEALS. [L. B. 

J. 0. briefly to the mode in which this payment of the Bs.2000 was 

1906 attempted to be supported. The defendant says that he paid 

ChItohbi this sum to the plaintiff, being the profits from tobacco cultiva- 

HaSuJ *^^^ during several years ; that he paid it in May or June, one 

,, ^* or two months before the deed was executed ; Bs.1800 on one 
Muhammad 
Hasak. occasion, and Rs.200 within two months after ; that Tajammul 

Husain Khan, Mata Din Singh, Chauhan, Sheikh Aulad Husain, 

Bakar Khan, and others were present; that the money was 

brought tied in a cloth by Bakridi and Mohun Fasi ; that the 

money was paid to the plaintiff, the Bs.200 at 10 a.m., and 

the Bs.1800 at noon. Tajammul Husain says that he was 

present when Aulad Husain, Bakridi, and Mohun Pasi came with 

Bs.1800, and the defendant paid it to the plaintiff on account 

of a hiba-bil-iwaz ; and that the plaintiff had executed the deed 

because of the regard and affection he had to the defendant, who 

had married his sister-in-law's daughter (which marriage, by the 

way, did not take place until six months later). Then Mata Din 

Singh says that he was present when the defendant arrived with 

Bs.1800, and put it down before the plaintiff; that the deed 

was being read at the time by Tajammul Husain ; that Bakridi 

and a Pasi brought the money and placed it on the couch where 

the plaintiff was sitting, and the plaintiff then counted it and 

took it away into his house ; that the defendant said " Here is 

the amount, Bs.1800," and the plaintiff said *' This is hibanama 

money." Then Bakridi says that the defendant took the 

Bs.1800 out of a box and counted it and gave half to the 

witness and half to Mohun; that they tied it up in separate 

parcels and reached Ghhilgawan a little after 1 ; that the 

defendant then told them to place it before the plaintiff ; that 

they did so, and the amount was counted and tested and tied up 

in two bundles of B8.900 each ; that the plaintiff took up one 

and the witness the other, and placed them before the plaintiff's 

wife ; and that the deed was not prepared till some days after. 

The evidence of these witnesses varied very greatly in detail ; 

but they all swore that the money was paid in their presence. 

As already mentioned, this story about payment has not found 

credence in any Court. It has been proved that the defendant 

had not any means at the time not even enough to pay for the 



VOL. XXXTTT.] INDIAN APPEALS. 75 

stamp on the deed, which was boaght by the plaintiff. The J. 0. 

defendant's case is as bad a case of circamstantial mendacity as 1906 

could well be, and it shews not only that the defendant's own chaudhbi 

statements are utterly untrustworthy, but also that he had both hasS 

the will and the power to suborn other persons to give false v, 

, ., . i - 1 . Muhammad 

testunony m support of his case. Hasan. 

So far, therefore, as the defendant's case is rested upon the 
deed in question being a conveyance for value, it fails entirely. 

But the defendant also sets up another defence (which is quite 
inconsistent with his defence that the deed was for valuable 
consideration), viz., that this deed was founded on the natural 
love and affection which the plaintiff had for him as his nephew, 
and also for the plaintiff's niece, whom the defendant was about 
to marry ; in pursuance of which the plaintiff placed him at 
once in possession of all his property except the reserved portion 
of Akbarpur. It does not seem a very probable story that the 
plaintiff should at once irrevocably hand over to the defendant 
all his property except a few rupees ; but certainly there is 
evidence that on many occasions subsequently the plaintiff spoke 
of the property as having been given by him to the defendant, 
though he often said, and says now, that this was subject to the 
reservation of it to himself and bis wife during their lives, and 
subject to its being managed by the defendant during the 
absence of the plaintiff and his wife on their intended pilgrimage. 
The defendant denies that any such reservation was intended, 
and he relies upon the absence of any such reservation from 
the deed except as to Akbarpur, for which special provision was 
made. This no doubt is a point in favour of the defendant, but 
it is necessary to consider carefully all the circumstances of the 
case. 

By the Mahomedan law (by which the present case is 
governed) a holder of property may in his lifetime give away 
the whole or part of his property if he complies with certain 
forms ; but it is incumbent upon those who seek to set up such a 
transaction to shew very clearly that those forms have been com- 
plied with. It may be by deed of gift simply, or by deed of gift 
coupled with consideration. If the former, unless accompanied 
by delivery of the thing given, so far as it is capable of 



76 INDIAN APPEALS. [L.R 

J. 0. delivery, it is invalid. If the latter (in which case delivery 

1906 of possession is not necessary), actual payment of the considera- 

ChIudhbi *^^^ niust be proved, and the bona fide intention of the donor to 

Mbhdi divest himself in prsBsenti of the property, and to confer it upon 

V, the donee, must also be proved : see Ranee Khujoorroonissa v. 

Hasan. Mussamut Roushun Jehan, (1) 

Beference was also made by the defendant's counsel to the 
Transfer of Property Act, 1882, c. 7, as to gifts, and to certain 
cases decided under it which shew that by the Hindu law delivery 
of possession is not essential. But they have no bearing upon 
this case, as s. 129 of the Act provides that nothing contained 
in that chapter should be deemed to affect any rule of Maho- 
medan law. 

It now becomes important to consider whether the possession 
of the property comprised in the deed was or was not delivered 
to the defendant as he alleges. The parol evidence upon this 
point is very voluminous and very conflicting ; but upon full 
consideration of it their Lordships have come to the conclusion 
that the defendant has failed to establish that possession was 
delivered, and in doing so they rely especially upon certain 
matters which seem to them beyond dispute. 

Part of the property described in the deed and claimed by the 
defendant is a house at Ghhilgawan, which had been built by 
and belonged to the plaintiff, in which he and his wife resided 
before and at the time of the execution of the deed. The plain- 
tiff did not, as contemplated, go to Mecca soon after that time, 
being prevented at first by an accident, and afterwards by the 
illness of himself and his wife. When the defendant married, 
the plaintiff invited him and his wife to come and live with him 
at the house in question ; and they did so, and were maintained 
by him there until 1894, when the plaintiff and his wife made 
the long contemplated pilgrimage to Mecca, on which they were 
absent about six months. During their absence the defendant 
and his wife continued to live in the house ; but on their return 
the plaintiff and his wife went back to their home and have con- 
tinued to reside there ever since. The defendant also remained 
there for a short time till his wife died ; after her death the 
(1) L. E. 3 Ind. Ap. 291' 



VOL. XXXTTTQ INDIAN APPEALS. 77 

defendant married again, and differencsB having arisen between j. c. 

him and the plaintiff, the defendant went away and lived in 1906 

Nidura, while the plaintiff remained in the house as before. orIudhbi 

Each party says he was in possession of that house ; but upon Mehdi 

It ASA. Iff 

the above facts, which are not in dispute, their Lordships have v. 
no difficulty in coming to the conclusion that this house was all hasak. 
along in the possession of the plaintiff. 

Next, with reference to the village of Chhilgawan, it was at the 
date of the deed held by the official assignee of the mortgagees, 
and the plaintiff was in actual possession under a lease from him. 
On its subsequent redemption the co-sharers Mehdi Hasan, Hadi 
Hasan, Abdus-Sattar and Abdul Ghaffar entered into possession 
and divided the profits in equal shares. The defendant admitted 
that the plaintiff had always received his one-third share of these 
profits, but says that he, did so with his permission for his 
expenses — a statement which is not corroborated. But it is not 
necessary on this point to do more than refer to certain prpceed- 
ings early in the year 1897. In that year the plaintiff and 
defendant had disputes about the collections in Chhilgawan, and 
while the proprietors were fighting the cultivators suffered ; and 
some of them took criminal proceedings for assault against the 
plaintiff and others. Shortly afterwards the plaintiff and defen- 
dant made an amicable arrangement before the Court under 
which Parmeshur Din was appointed to receive the rents of 
Chhilgawan, and after payment of the Government dues to 
divide the surplus into three equal shares and pay them to the 
plaintiff, Hadi Hasan, and Abdus-Sattar and Abdul Ghaffar ; and 
thereupon the proceedings were stayed. The plaintiff and 
defendant each made a deposition in support of that order, and 
the defendant's deposition contained this passage : — 

"The money reahzed from village Chhilgawan every year used 
to be distributed among Hadi Hasan, Abdus-Sattarand Abdul 
Ghaffar, sons of Chaudhri Abdul Bazzak, and Chaudhri Mehdi 
Hasan, each getting a one-third share " ; and the defendant 
agreed that the rents should be received thenceforth by 
Parmeshur Dia, and divided by him among the same persons 
as before. The plaintiff's deposition contained a statement to 
the like effect. 



78 INDIAN APPEALS. [L. E. 

J. c. With reference to Akbarpnr, there is no doubt that it was left 

1906 in possession of the plaintiff. 
Ohaudhbi With regard to Sarawan and Baushanabad the facts stand 
Has^ thus : In 1889 a new mortgage was made upon Udaria ; part of 
«• the money raised was applied in paying off the prior mortgage 
Hasan, thereon, and out of the balance the existing mortgage on 
Baushanabad was paid off. About the same time the mortgage 
existing on Sarawan was satisfied by the sale of one-half of that 
property, and the remaining one-half of Sarawan was redeemed. 
Abdus-Sattar, one of the co-sharers (whose evidence no one has 
impeached), says that the plaintiff and Hadi Hasan, and he and 
his brother, handed over Sarawan and Baushanabad to the defen- 
dant to manage and make collections, pay Government revenue^ 
and keep the balance in deposit with him for the purpose of 
redeeming the mortgage on Udaria /rom Abdul Kasim. The 
plaintiff confirms this statement ; and Bam Parshad (who was 
employed by the defendant to collect the rents of Baushanabad) 
and Mubarak Ali and Din Dayal all depose that the defendant 
made statements to them to the same effect. Moreover, the 
plaintiff in his deposition made to support the consent order 
above referred to, said : — 

** As to the collections of the remaining villages Sarawan and 
Baushanabad, Ghaudhri Muhammad Hasan shall continue to 
make them in order to pay off the mortgage money on village 
Udaria while I shall make collections in Akbarpur." 

The defendant was not so expUcit ; his deposition is : — 

" As to the collections of the remaining villages, Sarawan and 
Baushanabad, I shall continue to make them hereafter as I have 
been doing hitherto." 

But he did not contradict or dispute the plaintiff's statement 
as to what was the object and purpose of his doing so. It must 
be remembered also that the defendant was receiving the entirety, 
and not one-third only, of the profits of these villages ; and as to 
two-thirds they clearly must have been received for some specific 
purpose ; and according to the defendant's statement the whole 
was to be received and applied for the same object. Under 
these circumstances the defendant did, no doubt, collect 
considerable sums in respect of the Sarawan-Baushanabad 



VOL. XXXni.] INDIAN APPEAM. 79 

properties ; but this does not prove that he had possession of one- J. c. 
third against the plaintiff, any more than it proves that he had 1906 
possession of the other two-thirds against the co-sharers. chafdhbi 

The learned Judicial Commissioner stated that although the haSn 
defendant did not admit that there was any arrangement that p- 

the profits of Sara wan and Baushanabad should be retained by hasan. 
him towards the redemption of the mortgage of Udaria, the fact 
that the accounts of those villages were kept separate from the 
accounts of Ghhilgawan, and that the profits of those villages 
had not been divided, did lend support to the view that these 
profits were set apart to redeem that mortgage. He held, how- 
ever, that this was insufficient to shew that as between the 
plaintiff and defendant the latter was trustee of the plaintiff's 
one-third, as well as of the two-thirds of the other co-sharers. 
But their Lordships do not concur in this view. It seems to 
them improbable that the passages above referred to as to the 
application of the rents of those villages should have been intro- 
duced into the depositions of the plaintiff and defendant as above 
mentioned, if the plaintiff had no interest in those villages or 
the rents thereof, or in the application of the collections there- 
from. Again, the undated letter from the defendant to the 
plaintiff (set out in the Eecord), in which he offers to account to 
the plaintiff or to any other person he may name in respect of 
Abdul Kasim's mortgage and the collections of Sarawan and 
Baushanabad, is quite inconsistent with the defendant's con- 
tention that the plaintiff had no interest in those properties 
respectively. It is plain, therefore, that the defendant had not 
possession of these villages under the deed in question, but as 
a trustee by arrangement for all the co-sharers, including the 
plaintiff. 

With respect to the other small properties, shares, dues, and 
duties, their Lordships do not think it necessary to trace out the 
details of possession in each case; it has been done very carefully 
by the Subordinate Judge, and their Lordships adopt his reasons 
and conclusions. They merely desire to add two remarks — one 
is that the defendant's father, Hadi Hasan, is entitled to a one- 
third share of the properties in question, and, naturally enough, 
the defendant (as his witness, Angad Singh, Zemindar of Baipur, 



80 INDIAN APPEALS. [L. E. 

J. 0. states) made collections of Hadi Hasan's share also ; yet no 

1906 attempt has been made by the defendant to shew on whose 

chaudhbi account the various payments to him have been made; and 

HAa!2f -^^^^ Hasan was not called as a witness, though his evidence 

'^' might have been useful on this point ; and unless the payments 

Hasan, made to the defendant could be shewn to have been made on 

account of the plaintiff's share, the evidence is valueless. The 

other is that they do not attach the slightest weight to the 

evidence of the defendant, and, looking at the mode in which the 

evidence as to the Bs.2000 was fabricated by him, they regard 

with great distrust much of the other evidence adduced on his 

behalf. 

Their Lordships are therefore of opinion that the defendant's 
contention that possession of the properties comprised in the deed 
was given to him has wholly failed. 

The circumstances connected with the mortgages to Abdul 
Easim and Mata Din do not seem to their Lordships very 
material, having regard to the fact that the mutation of names 
had already been effected. 

Their Lordships are of opinion that the deed which purported 
to be a conveyance for value was a transaction in which no con- 
sideration passed or was intended to pass ; that in executing that 
deed the plaintiff did not intend to give the property to the 
defendant except subject to a reservation of the possession and 
enjoyment to himself and his wife during their lives, to which 
the defendant pledged himself; and that the deed was not 
followed by delivery of possession, but was a fictitious and 
benami deed and was invalid and void. 

Under these circumstances their Lordships are of opinion 
that the decision of the Subordinate Judge was right and should 
be affirmed ; and they will humbly advise His Majesty that this 
appeal should be allowed; that the order of the Court of the 
Judicial Commissioner of Oudh should be reversed, and the 
appeal to that Court should be dismissed with costs ; and that 
the order of the officiating Subordinate Judge of Barabanki 
should be restored. 

On July 6, 1905, the appellants applied that this appeal, 
which was at that time set down, should stand over until the 



VOL. XXXm.] INDIAN APPEALS, 81 

November sittingB. Their Lordships assented to this course, J. C; 

but ordered the appellants to pay in any event the respondent's 1906 

costs of that application, and of the case orders which the ghaudhbi 

respondent had been compelled to take out. The respondent ^^^ 

must pay the costs of this appeal, but must be allowed to set off v. 

against them the costs mentioned above. Hasan. 

Solicitors for appellants : Barrow, Rogers db NevilL 
Solicitors for respondent : T. L. Wilson dt Co. 



MALIK AHMAD WALI KHAN Plaintiff; j.c* 

AND 1905 

MUSAMMAT SHAMSI JAHAN BEGAM ) ^ ^^^8- 

. ' > Defendants. ,^^^ 

AND Another ) 1906 

ON APPEAL PBOM THE HIGH COUET AT ALLAHABAD. if^21. 

Transfer of Property Act, s. dQ-^Gonstruction — Charge on the Interests of 
Co-mortgagors — Redemption — Contribution. 

Sect 95 of the Transfer of Property Act says that " where one of 

several mortgagors redeems the mortgaged property and obtains 

possession thereof," he has a charge on the shares of his co-mortgagors 

I for contribution to his expenses '^ in so redeeming and obtaining 

possession " : — 

Held, that the section must be construed distributively, and that the 
charge follows on redemption; the condition of obtaining possession 
applies only to cases in which its fulfilment is from the nature of the 
mortgage possible. 

Where one of three mortgagors paid off the mortgage debt in full and 
then sued the other two to recover the whole amount paid with interest, 
alleging that he was a surety only : — 

Held, that on failure to prove an agreement of suretyship he was 
nevertheless entitled to recover two-thirds, and that although neither 
he nor the original mortgagee had obtained possession of the mortgaged 
property the decree ought to give him a charge on the respondents' 
interests therein. 

Appeal from a decree of the High Court (February 24, 1898) 

Betting aside a decree of the Subordinate Judge of Bareilly 

(December 19, 1900) and dismissing the appellant's suit. 

* Present : LoBD Davky, SiE FobD North, Sir Andrew Scoblb, and 
Sir Arthur Wilson. 



82 INDIAN APPEALS. [L. E. 

J. c. The Buit was brought to recover B8.16,425 on account of 

1905 principal and simple and compound interest as stipulated in a 

mIlik ^oni dated October 6, 1896, which comprised property both 

Ahmad q! the appellant and of the respondents. It alleged the cir- 

V. cumstances under which it was executed; and further stated, 

Shamsi " I^ ^^^9 however, agreed upon between the plaintiff and the 

Beo^ defendants that he should only be a surety, and they should be 

— liable to pay the entire amount of the document." It alleged 

that the whole of the consideration money was paid to the 

defendants, and that " the plaintiff did not receive any portion 

of the said consideration, nor was it ever spent for the benefit of 

the plaintiff." It alleged his repayment of the amount due to 

the mortgagee, and claimed that '' as a representative of the 

mortgagee the plaintiff is competent to get all the mortgagee's 

right enforced as against the defendants." 

The relief prayed was the recovery of the whole amount, 
principal and interest payable under the bond in accordance 
with its terms, with a charge on the property of the respondents 
mortgaged by the said deed. 

The respondents denied receipt of the consideration money, 
and that the money was wanted as alleged for their brother's case 
or had been spent thereon. They concluded, " The plaintiff can 
claim only the rateable amount which he may prove to have given 
to the answering defendants." 

The Subordinate Judge decreed the suit in full, finding as a fact 
that the whole amount of the consideration money *' was paid at 
the time of registration to the defendants." 

The High Court found that the money was *' not intended to 
go into the pockets of either the plaintiff or the defendants ; that 
the money was, as a matter of fact, handed over to the defendants 
in the presence of the Sub-registrar is true, but this was done 
at the instance of the plaintiff himself, who, according to the 
registration endorsement upon the bond, requested that the 
money might be paid in the presence of the defendants. It is 
to be observed in this endorsement it is not requested that the 
money should be paid to the defendants, but merely that it 
should be paid in their presence. From this we gather that the 
intention was not that it should be paid to the defendants for 



VOL. xxxm.] 



INDIAN APPEALS. 



88 



J. 0. 

1906 



their own personal use, bat simply that the mortgagee should 
have the protection of having it paid in the presence of all the 
mortgagors." 

It was of opinion that the case made by the appellant that he wA^^an 
was to be a surety only was untrue, and that he was not entitled 
to the relief sought by him. At the hearing of the appeal the 
appellant asked for a decree for contribution towards the amount 
of the debt which had been discharged by him. The Court 
refused to grant this relief as inconsistent with the character of 
the suit, and as shewing indulgence to a litigant who comes 
into Court with a false case. 



Malik 



musammat 
Shamsi 
Jahan 
Begam. 



Cowellf for the appellant, contended that it was proved by 
evidence, which the respondents had not been called to deny, 
that the moneys secured by the bond had been paid to the 
respondents. They borrowed the money, and the appellant was 
by agreement between him and them a surety only, and was so 
regarded by the lender, the respondents again not denying the 
case made. Under these circumstances he was entitled as 
specifically prayed in his plaint. Otherwise he was, under s. 95 
of the Transfer of Property Act, entitled to recover two-thirds 
of the amount paid by him, with interest at the stipulated rate, 
and to have a charge declared in his favour on the respondents* 
interests in the mortgaged property. 

De Gruythevj for the respondents, contended that the agree- 
ment for suretyship was not proved by the evidence, and had 
not been upheld by either of the Courts below. He referred to 
8. 65 of the Indian Contract Act. Sect. 95 of the Transfer of 
Property Act only gave a charge on redemption to a mortgagor 
who had obtained possession from the mortgagee on satisfying 
the mortgage. It should be construed strictly, and did not 
apply to a case where the mortgagor had redeemed but had not 
obtained possession. 

Cow ell replied. 



The judgment of their Lordships was delivered by 1906 

Sir Arthur Wilson. This is an appeal from a decree of the March 21, 
High Court of Allahabad of February 24, 1908, which set aside 

02 



84 INDIAN APPEALS. [L. E. 

J. c. the decree of the Subordinate Judge of Bareilly of December 19, 

1906 1900. 

IijEXlik The plaintiff, Malik Ahmad Wali Ehan, is brother of the half- 

Wam^Khait ^^^^ ^^ ^^^ *^^ ladies who are defendants. In the year 1896 a 

V. criminal charge was pending against Sardar Wali Ehan, a half- 

Shavsi brother of the plaintiff and whole brother of the defendants ; 

Beoam ^^^ ^^^ various members of the family took steps to procure 

— funds for the defence of the accused man. 

On October 6, 1896, the plaintiff and the defendants executed 
a mortgage bond of the ordinary kind for the sum of Bs. 10,000 
in favour of Banarsi Parshad, by which the plaintiff hypothe- 
cated certain property belonging to him, and the defendants 
certain property belonging to them. 

On November 2, 1896, the plaintiff paid off the mortgage, the 
sum actually paid for principal and interest being Bs.10,025. 

On April 2, 1900, the plaintiff filed his plaint in the present 
case, in which he alleged that he had joined in the mortgage 
only as surety for his half-sisters the defendants, and claimed to 
recover from them the whole amount of what he had paid, with 
interest. The defendants in their written statements denied 
having been parties to the borrowing at all, but it was added, 
"The plaintiff can claim only the rateable amount which he 
may prove to have given to the answering defendants." 

At the trial before the Subordinate Judge the plaintiff himself 
gave some evidence, chiefly during his cross-examination, of an 
express agreement between him and his half-sisters that he should 
be a mere surety for them in the matter of the mortgage bond. 
Neither of the Courts in India appear to have given credence to 
that evidence, and their Lordships think those Courts were right. 
The Subordinate Judge, however, made a decree in favour of 
the plaintiff on the ground that the mortgage money was shewn 
to have been handed to the defendants in the presence of the 
Begistrar, and was not shewn to have been returned by them to 
the plaintiff. The handing of the money to the defendants was 
carried out by arrangement on the part of the plaintiff, and the 
ladies were at the time living in his house where the payment 
was made. The learned judges of the High Court considered 
that these circumstances were quite insufficient to prove that the 



VOL. XXXm.] INDIAN APPEALS. 86 

plaintiff was a mere snrety in the matter of the mortgage, and j. c. 
their Lordships agree in this view. 1906 

It was contended, however, before the High Court, and again mIxik 
before their'Lordships, that the plaintiff was nevertheless entitled ^'^^^ 
to recover from the defendants a proportionate share, that is to v. 
say, two-thirds, of the amount he paid to the mortgagee. The shamsi 
High Court rejected this contention on the ground that the ^^^^ 
Court could " shew no indulgence to a litigant who comes into — 
Court with a false case." It appears to their Lordships that the 
question is hardly one of indulgence, and that the plaintiff in 
this case ought not, by reason of his having claimed too much, 
to be precluded from recovering a proportionate amount of what 
he actually paid, to which he is undoubtedly entitled, a "^claim 
which the pleadings are wide enough to cover. 

It was further contended that under s. 95 of the Transfer of 
Property Act (IV. of 1882) there ought to be a decree giving the 
plaintiff a charge on the interests of the defendants in the 
mortgaged property. That section says that : 

"Where one of several mortgagors redeems the mortgaged 
property and obtains possession thereof, he has a charge on the 
share of each of the other co-mortgagors in the property for his 
proportion of the expenses properly incurred in so redeeming 
and obtaining possession." 

That section might be so strictly construed as to limit its 
operation to mortgages under which possession passes, and, 
therefore, on redemption properly re-passes. But it seems to 
their Lordships more reasonable to construe the section distribu- 
tively, to make the condition of obtaining possession apply only 
to the cases in which its fulfilment is from the nature of the 
mortgage possible, and in other cases to make the charge follow 
upon redemption. 

Their Lordships will, therefore, humbly advise His Majesty 
(1.) to discharge the decrees of the High Court and Subordinate 
Judge ; (2.) to declare that the plaintiff is entitled to recover 
against the defendants two- thirds of the sum of Bs. 10,025 paid 
by him to redeem the mortgage, with interest at 6 per cent, per 
annum from the date of the institution of the suit, and that he 
is entitled to a charge in respegt thereof upon th^ defendftuts/ 



Ahmad 
Wali Khait 



86 INDIAN APPEALS. [L. E. 

J. c. interest in the mortgaged property ; (8.) to remit the case to the 

1906 High Court to determine the amount due from the defendants 

mX^k a^d the time within which it should be paid by them and to give 

all necessary directions as to the re-transfer or realization of the 

^- mortgaged property of the defendants, and otherwise to give 

shambi effect to His Majesty's Order ; and](4.) to order that inasmuch as 

Beo^. ^^^ ^o^i*^ o' ^^^ ^^^ ^ ^^® ^^ Courts in India appear to have 

— been occasioned substantially by the untrue cases set up on the 

one side and on the other, no costs in either of these Courts 

should be given. For the same reason there will be no order as 

to the costs of this appeal. 

Solicitors for appellant : Ranken Ford, Ford <t Chester. 
Solicitors for respondents : T. L. Wilson dt Co. 



J.c* ISMAIL MUSSAJEE MOOKERDUM .... Plaintiff; 

1906 ^D 

^^*15 16. g^pj2 BQo Defendant. 

March 14. 

ON APPEAL FROM THE CHIEF COURT OF LOWER BURMA. 

Practice — Suit to set (uide Transaction on the ground of Dementia — Undue 
Influence — Benami — Evidence of Gift, 

A Mahomedan mother transferred nearly the whole of her estate or 
its proceeds to her daughter, partly by actual transfer and partly by 
purchases with the sale proceeds in the daughter's name. 

In a suit by her son after her death to set aside these transactions on 
the ground of dementia ; — 

Held that, dementia not being proved, the plaintiff could not succeed 
on the ground of imdue influence which had been neither alleged, nor 
inyestigated, nor proved ; 

Held, further, with regard to purchases in her daughter's name with 
the sale proceeds, and to transfers for consideration which was never 
paid, that the resulting inference that they were benami transactions 
was rebutted by the evidence of gift, and by the proved intention to 
exclude the son from inheriting. 

Appeal from a decree of the Chief Court (April 21, 1904), 

reversing a decree of Bigge J. (December 5, 1902). 

♦ Present: Lord Davey, Lord Robertson, Lord Atkinson, Sir 
Anpr«w ScopLB, find Sir ARTBn[j?i WiiSQ^f 



VOL. xxyrrrj Indian appeals. 87 

The question decided was as to the validity of certain aliena- j, o. 
tions in 1889 of her property made by Khaja Boo, who died in 1906 
1900, in favour of her daughter Hafiz Boo, and to the exclusion j^^^ 
of the appellant, her son. The suit was brought in 1901 against Mussajeb 
the daughter and the holders of the powers of attorney granted by «. 

the mother, under which the transactions were effected; and the 

ground for impeaching them was stated in the plaint to be 
" that at the time of the occurrences hereinafter mentioned the 
said Khaja Boo was suffering from dementia, and was not in a 
fit state of mind to execute contracts or to manage her affairs ; 
and that up to the month of July, 1898, the first defendant (i.e., 
Hafiz Boo) was residing with the said Khaja Boo, who was 
entirely under her dominion and control, and the first defendant 
and, as the plaintiff believes, the other defendants were well 
aware of the mental condition of the said Khaja Boo." 

The judgment of the first Court was as follows : — 

" I have come to the conclusion that each party, as might be 
expected, have put their case too high as regards Khaja Boo's 
mental condition ; and that she was neither a hopeless and in- 
capable imbecile as the plaintiff would have me believe, nor a 
strong-minded capable woman of affairs as pourtrayed by the 
defendant. The plaintiff's evidence, when read carefully, does 
not in any way establish the complete insanity which is his case, 
and I think that it is clear that Khaja Boo was an impressionable 
old woman, whose mental and bodily faculties at the time of the 
occurrences in issue, when she was seventy-eight years old, were 
enfeebled by age, with the result that she was at the mercy and 
was the tool of her unscrupulous daughter or son, as one or the 
other was for the time being the captor, and — to continue the 
metaphor I have borrowed from Mr. Lowis — enjoying the spoils. 
I think the plaintiff would have been wise if, instead of basing 
his claim on the untenable theory of his mother's madness, he 
had rested it on undue influence." 

He then dealt with the case as one of undue influence, finding 
that Hafiz Boo had not discharged the onus which was on her 
to prove that the transactions were explained to Khaja Boo, that 
she knew what she was doing, and had had independent legal 
advice. In the result he made a decree for administration, 



Hafiz Boo. 



88 INDIAN APPEALS. [L. R. 

J. c. holding the daughter liable to account for the purchase-money 

1906 of lot No. 27, mentioned in the judgment of their Lordships, 

Ismail *^^ setting aside the conveyance of lot No. 6 to her, and of 

MussAJBB another house to the appellant. 

MOOKEBDUM ^^ 

V. ^ The Chief Court confirmed the finding that Khaja Boo was of 

sound mind, adding that there was no proof of undue influence, 
but that the intention of Ehaja Boo to make valid gifts of her 
property was established^ 

C. W. Arathoon, for the appellant, contended that on the oral 
evidence, and also from the inferences to be drawn from the 
various transfers in question in suit, the Court below should 
have held that Ehaja Boo did not execute them of her own free 
will, after fully understanding their eflfect. The onus was on the 
respondents to shew the vaUd execution of these documents, and 
that they were binding on the deceased Ehaja Boo. The 
appellant had adduced evidence from which it was shewn that 
they were obtained from her by fraud and undue influence 
exercised over her failing faculties, as found by the Court of 
first instance. Ehaja Boo was a pardanishin, and the two 
attorneys were Rangoon men, unknown to her. The deeds 
deprived her of all her property, the respondent's husband 
obtaining the execution through his wife's influence over her 
mother ; were in a language which she did not understand ; were 
not read over and explained ; and she had no independent legal 
advice and assistance. As no consideration was proved to have 
passed, and no effective possession followed, the presumption 
was that the transactions were benami. He referred to Hakim 
Muhammad Ikramuddin v. Najiban (1) ; Hasan Ali v. Nazo, (2) 

Cohen, K.C., and De Oruyther, for the respondent, contended 
that the suit was based upon a case of dementia, and that the 
deeds were impeached on that ground alone. Concurrent findings 
by the Courts below that that case failed were conclusive in favour 
of dismissing the suit. No case of undue influence had been 
alleged or put in issue or proved, and no case of that kind can be 
the subject of adjudication in this appeal. If that case could 
be made, the onus was on the appellant to prove it, and be 

(1) (1898) L. B. 26 Ind. Ap. 137. (2) (1889) I. L. R. 11 Allah. 466. 



YOL. XXXKL] INDIAN APPEALS. 89 

had failed. Besides, ia,rt. 91 of Act XV. of 1877, Sched. II., applied j. c. 

to all cases of undue influence. There was no presumption in 1906 

favour of these transfers being benami, for the evidence was over- i^Iii, 
whelming both that Khaja Boo intended to exclude tl^Gxr^Q^^^^ 

appellant from inheriting and intended that her daughter v, 

should take beneficially. Both intentions would be defeated if 

the transfers were held to be benami. Beference was made to 
Rani Janki Kunwar v. Raja Ajit Singh. (1) 
Arathoon replied. 

The judgment of their Lordships was delivered by 1^^ 

Sir Arthur Wilson. The suit out of which this appeal Marckii. 
arises related to certain transactions on the part of Ehaja Boo, a 
Mahomedan woman, who died in the year 1900, at an advanced 
age, said to have been ninety years. 

The transactions in question took place in 1889. Ehaja Boo 
resided at Bander, near Surat, in the Bombay Presidency ; but 
she and her family seem to have had connections of long stand- 
ing with Bangoon. She had, at the time of the events which 
have to be considered, one son, the present plaintiff, appellant, 
and one daughter, the present defendant, respondent. With her 
son, whose antecedents were not good, she was on terms of 
bitter hostility, and much litigation had taken place between 
them. The daughter was a. married woman, whose husband 
resided in Bangoon ; but she herself was living with her mother 
at Bander. 

Ehaja Boo owned a house in Bander, and two properties in 
Rangoon. One of the latter was the fifth class. Lot No. 27 in 
Block C ii., the other an undivided half-share in Lot No. 6 in 
Block E in Barr Street, in which the other half share belonged 
to Adjim Hassim Mookerdum, of Bangoon, the husband of 
Hafiz Boo. 

On January 19, 1889, Ehaja Bob executed at Bander a power 

of attorney in favour of two residents of Bangoon, Cassim 

Hashim Baroocha and Ismail Ebrahim Munnee, which conferred 

on the attorneys very general powers to act on behalf of Ehaja 

Boo in Bangoon, but nothing of great importance turns on this 

power. 

(1) (1887) L. R. 14 Ind. Ap. 148. 



90 INDIAN APPEALS. [L. R 

J. c. On February 12 in the same year, 1889, Ehaja Boo executed 

1906 at Bander another power in favour of the same two persons, by 

Ismail which, in addition to a general authority to act for her, she 

Moo^iDUM ®^P^®ssly empowered her attorneys to deal with the two pro- 

V. perties which have been mentioned. She authorized them to sell 

' and dispose of lot No. 27, and " to pay the sum realized from 

such sale to my daughter Hafiz Boo, either in cash, or by 
purchase at her will and consent from the whole or part of the 
said sum, lands, houses, and shares". . . . and to have the same 
** transferred to the name of the said Hafiz Boo, her heirs and 
legal assigns." 

As to the undivided half-share in lot No. 6, she authorized her 
attorneys to obtain a partition with the owner of the other half- 
share, and ** to have my portion of the land, viz., fifty feet by 
eleven feet, with all buildings and erections thereon, at an 
estimated value of Es.10,000 (ten thousand) only, for the 
payment of which sum I have fully and finally arranged and 
settled with my said daughter Hafiz Boo, to be wholly and 
absolutely transferred to the name of the said Hafiz Boo for 
the benefit of herself, her heirs, and legal assigns." 

Of the two attorneys thus appointed the first, Gassim Hashim 
Baroocha, was a man who appears to have carried on in Ean- 
goon, on a considerable scale, the business of land management 
under powers of attorney from absent proprietors. So that 
there is nothing in the choice of attorneys either improbable or 
justly suggesting suspicion. 

The attorneys proceeded to act under the second power. 
They sold lot 27 and invested the proceeds, in part at least, in 
the purchase of several properties in Eangoon in the name 
of Hafiz Boo and presumably under her instructions. With 
regard to lot 6, they carried out the partition with the other part 
owner, and then executed on behalf of Khaja Boo a conveyance 
of her partitioned share to her daughter Hafiz Boo. The con- 
veyance recited that Khaja Boo had agreed with Hafiz Boo for 
the sale to her of these premises for the sum of Bs.10,000. 
It proceeded to say that Khaja Boo in consideration of the 
Es.10,000, of which the receipt was acknowledged, grants, 
assigns, and transfers the premises in question to Hafiz Boo, her 



VOL. XXXni] INDIAN APPEALS. 91 

heirs, executors, administrators, and assigns, to hold them onto J. o. 
and to the use of the said Hafiz Boo, her heirs, executors, i906 
administrators, and assigns for ever. Ismail 

On July 29, 1889, Khaja Boo executed another document, ^^^^^ 
by which she recited the two powers of attorney which have v. 

been mentioned, acknowledged a variety of payments made by 

the attorneys, including the sum of Bs.11,020, to Hafiz Boo 
(being the price of lot 27), and the payment to Khaja Boo her- 
self of Bs.298, at the time of the execution of the present deed, 
and proceeded to give an absolute release to the attorneys. 

It would seem from the evidence that the documents which 
have been mentioned were prepared in Bangoon and sent to 
Bander for execution. There is nothing, their Lordships think, 
to be surprised at in this. It seems a not unnatural course with 
regard to documents affecting a professional land agent carrying 
on business in Bangoon, and documents, which were, in the 
main, to be acted on in Bangoon. 

The effect of these transactions was, in substance, that Hafiz 
Boo became possessed of nearly the whole of her mother's Ban- 
goon properties or their proceeds. The plaintiff admits that at a 
later period, after he had removed his mother to his own house, 
he obtained from her a conveyance to himself of her house at 
Bander. 

The plaintiff brought the present suit on February 26, 
1901, in the Chief Court of Lower Burma. He made defendants 
first his sister, Hafiz Boo, and second and third the two 
attorneys, but the suit against the attorneys was subsequently 
abandoned. The substantial object of the suit was to invalidate 
and annul the transactions of 1889 which have been mentioned. 

The plaint alleged (paragraph 2) that at the time of the 
occurrence referred to '' the said Khaja Boo was suffering from 
dementia and was not in a fit state of mind to execute contracts 
or to manage her affairs, and up to the month of July, 1898, the 
first defendant was residing with the said Khaja Boo, who was 
entirely under her dominion and control, and the first defendant, 
and, as the plaintiff believes, the other defendants were well 
aware of the mental condition of the said Khaja Boo." 

The plaintiff prayed that the estate of Khaja Boo might be 



92 INDIAN APPEALS. [L. E. 

J. c. administered and the necessary accounts taken, that it might be 

1906 declared that Ehaja Boo was from a date prior to 1889 of 

intTiL unsound mind, that it might be declared that the sum of 

m^mI^to ^s.11,250 received as the price of lot No. 27 belonged to Khaja 

V. Boo, that any pretended gift of those proceeds to Hafiz Boo was 

' invalid, and that the defendants were liable to account for those 

moneys, or their investments, as part of the estate of Ehaja Boo, 
and that the conveyance of lot No. 6 might be declared invaUd, 
and the property declared to be part of the estate of Ehaja Boo. 

The defendant Hafiz Boo denied the allegation of the plaint 
as to Ehaja Boo's state of mind, as did the other defendants. 
Issues were settled, some of which must be mentioned. 
(1.) Was Ehaja Boo in an unsound state of mind during the 
year 1889 ? (2.) Were the properties (those purchased from the 
price of lot 27) bought with funds belonging to the said Eliaja 
Boo, and do such properties now form part of her estate ? Was 
the conveyance of th*e southern half of lot No. 6 by Ehaja Boo 
in consideration of Bs.10,000, paid by defendant, a valid con- 
veyance ? (8.) If not, is the plaintiff's claim to have it set aside 
barred by limitation ? 

The case came on for hearing before Bigge J., and a large 
mass of evidence was given directed to the question of Eliaja 
Boo's mental capacity in 1889. It is unnecessary to examine 
the evidence from this point of view, because the learned judge 
found that the plaintiff had failed to shew that his mother was 
of unsound mind in 1889. The Court of Appeal took the same 
view; and their Lordships have not been asked to question those 
findings. 

The learned jjidge at the trial, however, after negativing the 
allegation of insanity, went on to say : — 

" I think the plaintiff would have been wiser, if, instead of 
basing his claim on the untenable theory of his mother's 
madness, he had rested it on undue influence, from which 
aspect I now proceed to examine the case." 

From that point of view the learned judge came to the 
conclusion that Ehaja Boo, at the period in question, was 
entirely under the control and domination of her daughter ; that 
the latter had unscrupulously used her power over her mother 



MUSSAJEE 

mookebdum 
Hafiz Boo. 



VOL. xxxrn.] Indian appeals. ^ • 98 

in order to get her mother's property into her own hands, and J. c. 
that the whole proceedings ought to be avoided on the gi:ound 1906 
of undue influence. Ismail 

He accordingly gave a decree directing that Ehaja Boo's 
estate should be administered under the direction of the Court, 
declaring that Hafiz Boo was liable to account for the price of 
lot No. 27, and that the conveyance to her of the partitioned 
half of lot No. 6 was invalid, and must be cancelled, and 
ordering the usual account and inquiries. The case came on 
appeal before the learned Chief Judge, and Birks J., who 
reversed the finding with respect to undue influence, and dis- 
missed the suit with costs in both Courts. Against that decision 
the present appeal has been brought. 

The principal contention before their Lordships on behalf of 
the appellant was, that the finding of Bigge J. on the question 
of undue influence was right and ought not to have been reversed 
by the Court of Appeal. With regard to this contention their 
Lordships must observe that the question of undue influence was 
never properly before the Court at all. No such case was set up 
in the pleadings. The nearest approach to it was in the passage 
of the plaint already cited, in which it was said that Ehaja Boo 
was entirely under the dominion and control of her daughter ; 
but that is only said incidentally in connection with the allega- 
tion of mental incapacity, which allegation formed the real case 
of the plaintiff. And accordingly, when the issues were settled^ 
there was a clear issue as to Ehaja Boo having been of unsound 
mind in 1889, but none with regard to undue influence. The result 
has been that the question of undue influence has been discussed 
and considered, not upon evidence given with reference to that 
question, but upon evidence called for a totally different purpose. 

Assuming, however, that undue influence might properly be 
made a ground of decision in the present case and under the 
present circumstances, their Lordships agree with the Court of 
Appeal in thinking that the evidence is insufficient to establish 
anything of the kind. As their opinion is in accordance with 
the judgments appealed against, they think it unnecessary to 
examine the evidence in minute detail. They think it sufficient 
to indicate its general purport. 



94 INDIAN APPEALS. [L. B. 

J. 0. Ehaja Boo was a very old woman, with the natural infirmities 

1906 incident to her age. She was not of unsound mind or unable to 

Ismail attend to business. She is spoken of as pardanishin, but she 

MooKERDUM ^^^ ^^ objection to communicate, when necessary, in matters of 

V. business, with men other than members of her own family, and 

— ' to some extent she did so. She was able to go to Court and give 

evidence in her litigation against her son, and she was able to 

attend at the registrar's office in person to acknowledge her deeds 

for the purpose of registration. 

On the other hand, her daughter resided with her, presided 
over her household, and had the general management of her 
affairs. It is not shewn whether, with regard to the specific 
transactions impugned, the mother consulted anybody. 

As to those transactions themselves, they appear to their 
Lordships to have been very natural under the circumstances 
existing at the time. The mother was extremely hostile to her 
son. She was old, and in case of her death her son would have 
inherited the greater part of her property. The only apparent 
way to prevent his doing so was to divest herself of the property 
in her lifetime. What the son himself thought about his 
mother's intentions appears from the fact found, that he issued 
an advertisement declaring her to be insane, and that any 
conveyance by her would be ineffectual. 

The mere relation of daughter to mother, of course, in itself 
suggests nothing in the way of special influence or control. The 
evidence seems to their Lordships quite insufficient to establish 
any general case of domination on the part of the daughter, 
and subjection of the mother, such as to lead to a presumption 
against any transaction between the two. With regard to the 
actual transactions question, there is no evidence whatever of 
undue influence brought to bear upon them. For these reasons 
their Lordships are of opinion that no case of undue influence 
has been established, and that therefore the general contention 
of the appellant fails. 

It was further contended, however, that, irrespective of any 
question of undue influence, the proper legal inference, both with 
respect to lot No. 27 and the properties purchased with its sale 
proceeds, and with respect to the partitioned share of lot No, 6, 



VOL XXXm] INDIAN APPEAI^- 96 

was, that there was no valid transfer to Eafiz Boo, that she was J. c. 
a mere benamidar for her mother, and that the whole property 1906 
formed part of the estate of the latter. This view was accepted i^Til 
by the learned judge at the trial, but not by the Court of Appeal, j^^^^^ 
The case stands somewhat differently with regard to the one «• 
property and the other. 

The power of attorney of February 12, 1889, when dealing with 
lot No. 27, by its terms seems to contemplate an absolute gift of 
the sale proceeds to Hafiz Boo, and this is how she treated the 
matter in her written statement. In her evidence, which was 
very confused, she tried to say that she paid that purchase- 
money to her mother. This was clearly untrue, as both Courts 
have found. The fact, therefore, remains that the properties 
purchased by the sale proceeds were purchased no doubt in Hafiz 
Boo's name, but were purchased out of funds emanating from 
her mother*s estate. This circumstance no doubt, if taken alone, 
affords evidence that the transaction was benami, but there is, in 
their Lordships' opinion, enough in the facts of the case to 
negative any such inference. It seems clear that what was done 
in 1889 was prompted by hostility to the son, and was with a 
purpose of excluding him from inheritance, an object which 
could not have been attained by any benami transaction. And 
the strong words of gift contained in the power of attorney are 
in accordance with this intention and calculated to give full effect 
to it. The question being purely one of intention, their Lord- 
ships think that the evidence points to an absolute gift, not to a 
benami transaction. 

The power of attorney, when dealing with the other property, 
lot No. 6, in its terms seems to regard the transfer to Hafiz Boo 
of the partitioned share as a sale for Bs. 10,000 already paid, and 
the conveyance to Hafiz Boo of April 22, 1889, is to the same 
effect. Both in her written statement and in her evidence, Hafiz 
Boo asserted that she had actually paid the Bs.10,000 to her 
mother, which is certainly not true. It was contended that this 
transaction must be regarded as a benami one, or, at any rate, 
that if a genuine transaction at all, it was a sale, not a gift, and 
it was said that the property still formed part of the mother's 
estate. 



96 INDlAK AttEALS. [t. fi. 

J. c. Here, again, the question is purely one of intention. The 

1906 observations already made with respect to the general purpose of 

Ismail Khaja Boo fully apply to the present property. The language of 

M^oKBBmrM *^® power of attorney and of the conveyance made under it are 

V- strong to shew that the estate was to vest in Hafiz Boo and her 
Hafiz Boo. _ . 
heirs. 

The fact that the sum of Bs.10,000 is mentioned as the price, 
a sum which, according to the evidence, was far short of the 
actual value of the property, and the fact that that sum is stated 
to have been paid in advance,-whereas in fact it was not paid at 
all, are strong to shew that the transaction was not a sale, but a 
gift, with an imaginary consideration inserted, in a manner com- 
mon in such transactions in India. Their Lordships, therefore, 
think that, as to this second property also, the case of benami 
fails. 

Their Lordships will humbly advise His Majesty that the 
appeal should be dismissed. The appellant will pay the costs. 

Solicitors for appellant : A. H. Amould dt Son. 
Solicitors for respondent : Sanderson^ Adkin, Lee <t Eddis. 



VOL. XXXni.] INDIAN APPEAIi8. 97 



J. C* 
MUSAMMAT LALI Defendant ; 1906 

"^^^ Feb 22 • 

MUELI DHAR Plaintiff. '^^^' 

ON APPEAL FROM THE HIGH COUET AT ALLAHABAD. 

Hindu Will in favour of adopted 8071 — Entry in Wajih-ul-arz — Persona 
designata — Gift dependent on validity of Adoption, 

Assuming that a clause in the wajib-ul-arz in suit recorded under 
Act XIX. of 1873 can be treated as a will by the Hindu who signed it in 
favour of his adopted son : — 

Held, that from a consideration of the descriptive words used after 
the ceremony of adoption had been effected, it was not the intention 
to give to him as a persona designata, but as an adopted son capable of 
inheriting by virtue of his adoption, and that the gift was dependent on 
the validity of the adoption. 

Whether an entry in a wajib-ul-arz can be treated as a will depends 
in every case on the circumstances in which the entry was made and 
the construction it receives from extrinsic evidence. 

Appeal from a decree of the High Court (December 21, 1901) 
modifying a decree of the Subordinate Judge of Agra (June 18, 
1897), which decreed the respondent's suit. The respondent 
sued, alleging his adoption by Dhanraj, the deceased husband of 
the appellant, who died in 1865 leaving a natural son born after 
the adoption, who died childless long before the suit. He also 
alleged that at the settlement of 1877 Dhanraj made a will, which 
he caused to be recorded in the village administration paper, to 
the effect that on his death the respondent should be his heir, and 
that if a son should be born to him (Dhanraj) that son and the 
respondent should hold the property in equal shares. He further 
alleged that the appellant after the death of Dhanraj did not 
allow his name to be entered in the Revenue papers and got her 
own name entered, and that two years after the death of Dhanraj 
she turned him out of the house. He sued in ejectment, claiming 
to be entitled to the whole property in dispute according to 
Hindu law ** by right of adoption and under the will made by 
Dhanraj." The appellant denied the fact of adoption, its validity 

* Present : Lord Davby, Sir Andrew Scoble, and Sir Arthur Wilson. 

voi. xxxni. H 



98 INDIAN APPEALS. [L. E. 

J. c. as being of Dhanraj's sister's son, and the will. The title under 

1906 the adoption was, in the opinion of the High Court, disproved 
MusImmat ^^^» ^s ^^® respondent did not cross appeal, the question at issue 

LALi before their Lordships was as to the effect of the entry made 
MuKLi by Dhanraj in the wajib-ul-arz, or administration paper of the 

^^ ' village, in suit and set out in their Lordships' judgment. 

This question the High Court decided in the following terms : 
— " It is contended on behalf of the plaintiff that this document 
is of a testamentary nature. Although in his plaint the plaintiff 
claimed to be entitled to the whole of the property under the 
terms of this document, his counsel admitted here — and, indeed, 
he could not do otherwise — that in the event of his failure 
to establish the adoption, he could not under that document 
claim more than half of the property. For the defendant it was 
contended that this was not a testamentary document, and, even 
if it were held to be of the nature of a will, there was no bequest 
to the plaintiff apart from or independent of the adoption — in 
other words, that the bequest to the plaintiff was conditional on 
the adoption standing good. We are of opinion that the docu- 
ment is of a testamentary nature. It provides for what is to 
happen in the event of a son being born to the testator, and 
makes a bequest to the plaintiff of a larger share of the property 
than he would be entitled to under the Hindu law ; assuming 
that there had been a valid adoption the plaintiff would under 
that law have been entitled upon the birth of a son to Dhanraj 
to only one-fourth of his property, and not to the half-share to 
which Dhanraj declares he will succeed. We have had to con- 
sider whether this bequest by Dhanraj was contingent upon the 
adoption of Murli being valid — in other words, to use the language 
of their Lordships of the Privy Council in the case of Fanindra 
Deb Raikat v. Rajeswar 2)a«s(l), 'the question is whether the 
mention of the plaintiff as an adopted son is merely descriptive of 
the person who took under the gift or whether the assumed fact of 
his adoption is not the reason and motive of the gift, and, indeed, 
a condition of it.' In such a case the intention of the testator 
is what has to be looked to. The present case is somewhat 
similar to the case of Nidhoomoni Debya v. Saroda Pershad 
(1) (1885) L. E. 12 Ind. Ap. 72, 89. 



VOL. XXXm.] INDIAN APPEALS. 99 

Mookerjee, (1) The effect of the will in that case according to j. c. 
their Lordships* view was as follows: *I declare that I give 1906 
my property to Koibullo whom I have adopted.* It was held musImmat 
that it was a gift by the testator to a designated person, and lali 
that it was immaterial whether the adoption was a valid one Mubli 

or not. We may also refer to the following passage at p. 89 of ' 

the judgment in the case reported in L. E. 12 Ind. Ap. p. 72. 
* The distinction between what is descriptive only, and what is 
the reason or motive of a gift or bequest, may often be very fine, 
but it is a distinction which must be drawn from a consideration 
of the language, and the surrounding circumstances. If a man 
makes a bequest to his "wife A. B." believing the person to be 
his lawful wife, and he has not been imposed upon by her, and 
falsely led to believe that he could lawfully marry her, and it 
afterwards appears that the marriage was not lawful, it may be 
that the legality of the marriage is not essential to the validity 
of the gift. Whether the marriage was lawful or not may be 
considered to make no difference in the intention of the testator.* 
The principle of this ruling applies to the present case. Here 
we have a designated person, namely, Murli Dhar. To this 
person Dhanraj bequeathed half of his property. It is true he 
describes him as his adopted son, and it may be that he was 
under the impression that he was a validly adopted son. But, 
as stated above, he gives him more than a validly adopted son 
would get. This is an indication that the adoption was not 
the reason or motive of the bequest. There is no evidence to 
shew that any deception was practised upon Dhanraj. It is 
unnecessary to refer to all the cases that were cited in argument 
by counsel on both sides. Every case must be decided with 
due regard to the language of the document in question and the 
surrounding circumstances. In the present case, we arrive at 
the conclusion that it was Dhanraj *s intention to make a bequest 
in favour of the plaintiff of a half-share, and that this bequest 
was not contingent upon the adoption being in all respects a valid 
adoption. The result is that we allow the appeal in part, and, 
varying the decree of the Court below, we decree in plaintiff's 
favour for half of the property claimed." 

(1) L. B. 3 Ind. Ap. 253, 

H 2 



100 INDIAN APPEALS [L. B. 

J. c. R088, for the appellant, contended that the respondent had not 

1906 made out a title by devise. In the first place, the clause in the 

MusAMMAT wajib-ul-arz did not constitute a will. It was a mere village 

lali record paper, and did not possess any testamentary value or effect. 

MuRLi If it did, it had been misconstrued by the High Court. There 

°^^ ' was no valid gift to him as a persona designata independent of 

the will. There was no gift apart from or irrespective of his 

adoption. So far as there was a gift at all, it was conditional 

upon his filling the position of a validly adopted son. There was 

no intention to benefit him in any other character. Reference was 

made to Bireswar Mookeiji v. Ardha Chunder Roy (1) ; Fanindra 

Deb Baikal v. Bajeswar Dass (2) ; Uman Parshad v. Gandharp 

Singh (8) ; Superunddhwaja Prasad v. Garuraddhwaja Prasad (4) ; 

Mathura Das v. Bhikhan Mai. (5) The High Court laid stress 

upon the mention of Murli Dhar by name in the devise. But 

that was only in the wajib-ul-arz of one village. The name was 

not mentioned in the wajib-ul-arz of the other villages. The gift 

was dependent on a valid adoption, and a sister's son could not be 

legally adopted : see Bhagwan Singh v. Bhagwan Singh. (6) 

The respondent did not appear. 

1906 The judgment of their Lordships was delivered by 

Aprii^^, Sib Andbbw Scoblb. The suit in this case was brought by 
Murli Dhar, the present respondent, against Musammat Lali, the 
present appellant, for possession of immovable property belonging 
to the estate of one Dhanraj, deceased. The appellant is the 
widow of Dhanraj, and the respondent claimed the property under 
a double title — first, as the adopted son of Dhanraj ; and, secondly, 
under the terms of a will contained in a wajib-ul-arz alleged to 
have been duly recorded, in relation to a village forming part of 
the property, by Dhanraj during his lifetime. The result of the 
litigation in India was to set aside the adoption as invalid 
according to Hindu law ; but the High Court at Allahabad gave 
the plaintiflf a decree for half the property claimed, on the ground 

(1) (1892) L. E. 19 Ind. Ap. 101. (4) (1893) L L. R. 15 Allali. 147, 

(2) L. R. 12 Ind. Ap. 72, 89. 166. 

(3) (1887) L. E. 14 Ind. Ap. 127, (5) (1896) L L. R. 19 AUak 16. 
134, (6) (1898) L. E. 26 Ind. Ap. 153. ] 



VOL. XXXm.] INDIAN APPEALS. 101 

that the clause in the wajib-ul-arz upon which the plaintiff relied J. c. 
was " a document of a testamentary nature," under which it was 1906 
the intention of Dhanraj to make a bequest in favour of the mus^mat 
plaintiff of a half-share in his property, and that this bequest was ^^^ 
not contingent upon the validity of the adoption. No appeal has Mueli 

been filed against so much of the judgment of the High Court as * 

relates to the adoption, but the defendant has appealed on two 
grounds — first, that the clause in the wajib-ul-arz does not con- 
stitute a will ; and, secondly, that if it does, there was no bequest to 
the plaintiff apart from and irrespective of his adoption, and a 
valid adoption was the condition upon which the alleged bequest 
depended. 

The term wajib-ul-arz in the North- Western Provinces is applied 
to what is considered to be the most important document con- 
tained in the official records relating to the village administra- 
tion. Entries therein, properly made and authenticated by the 
signatures of the officers who made them, have been held by 
this Committee in the case of Rani Lekraj Kuar v. Mahpal 
Singh (1) to be admissible in evidence under s. 85 of the Indian 
Evidence Act in order to prove a family custom of inheritance, 
or, under s. 48, as the record of opinions as to the existence of 
such custom by persons likely to know of it. In giving their 
judgment their Lordships say : " These wajib-ul-arz, or village 
papers, are regarded as of great importance by the Government. 
They were directed to be made by Eegulation VII. of 1822," the 
9th section of which enacts that — 

'^ It shall be the duty of collectors and other officers exercising 
the powers of collectors, on the occasion of making or revising 
settlements of the land revenue, to unite with the adjustment of 
the assessment and the investigation of the extent and produce 
of the lands, the object of ascertaining and recording the fullest 
possible information in regard to landed tenures, the rights, 
interests, and privileges of the various classes of the agri- 
cultural community. For this purpose their proceedings shall 
embrace the formation of as accurate a record as possible of all 
local usages connected with landed tenures, as full as practicable 
a specification of all persons enjoying the possession and property 
(1) (1879) L. B. 7 Ind, Ap. 63, 



102 INDIAN APPEALS. [L. R. 

J. c. of the soil, or vested with any heritable or transferable interest 

1906 in the land." 
MusAMMAT ^^ ^* ^^s specially ordered that — 

Lali *'The information collected on the above points shall be so 

MuBLi arranged and recorded as to admit of an immediate reference 

* hereafter by the Courts of Judicature." 

As this Begulation was passed at the time of the introduction 
of a regular settlement of the land revenue into ** the Ceded and 
Conquered Provinces/' under which designation the districts 
afterwards known as "the North- Western Provinces" were at 
that time included, the object of the Government appears to 
have been to obtain a body of reliable contemporary evidence 
upon matters which might afterwards come into controversy, 
not only between the landholders and the Government, but 
between rival claimants to estates. 

Begulation YII. of 1822 was repealed, as regards the North- 
western Provinces, by Act XIX. of 1873, and it is to be observed 
that this Act, while providing, in the 62nd and following sections 
for the maintenance of a careful '^ record of rights " in each 
mahal, no longer included a record of '' local usages connected 
with landed tenures " among the particulars to be entered. It 
was probably considered that, during the fifty years which had 
elapsed between the passing of the Begulation and the Act, such 
usages had been sufficiently ascertained, and that it was desirable 
that reference should be made to the earlier records when the 
existence of any such usage was asserted. For it is clear from 
a subsequent judgment of this Committee in the case of Uman 
Parshad v. Gandharp Singh (1) that, in later years, at any rate, 
attempts have been made by some proprietors to use these 
records as an indirect means of giving effect to their wishes with 
regard to the nature of their tenure, or the mode of devolution 
of their property after their death. When this has been the 
case, as Lord Hobhouse observes (2), these records are " worse 
than useless, they are absolutely misleading." 

The wajib-ul-arz relied on in this case appears to have been 
verified by Dhanraj on July 2, 1877, and was therefore recorded 
under Act XIX. of 1873. It relates to a village called Daidana. 
(1) L. E. 14 Ind. Ap. 127. (2) L. B. 14 Ind. Ap. 135. 



VOL. XXXin.] INDIAN APPEALS. 108 

Under the head of " Inheritance, Second Marriage, and Adop- J. c. 
tion,'* the 10th paragraph containe the following statement: — 1906 

" I am the only zemindar in this village. I am a Marwari musajTmat 
Brahmin. Seven years ago I adopted my sister's son, Murli. ^^' 
He is my heir and will be the owner. If, after this agreement, a Mueli 

son is born to me, half the property will be received by him and 

half by the adopted son. If more than one son kre bom to me, 
the property will be equally divided among them, including the 
adopted son, as brothers. I have two wives now. They will 
receive their maintenance from him (Murli) during their lifetime. 
If there are several sharers in future, each sharer shall be at 
liberty to marry a second wife in face of the existence of his first 
wife. No limit is fixed. After the death of a sharer his estate 
will be divided in equal shares with reference to the number 
of brothers, and not with reference to the number of wives. If 
one widow has children and the other is childless, the latter will 
receive a necessary maintenance. If a sharer dies without issue, 
his widow will be the owner of his property. If there are two 
widows, both of them will receive equal shares, and on their 
death the brothers and nephews of their husband will own the 
property according to their rights. A widow shall be competent 
to adopt a near relative in the family of her husband. There is 
no need for a will by husband. After the death of that widow 
her adopted son will be the owner of her property. If a widow 
marries again, she would be entirely excluded from inheritance. 
A sharer shall be at liberty to adopt his sister's son, or brother's 
son, or daughter's son, whomsoever he may like, and after his 
death his adopted son will inherit his property." 

Dhanraj died on April 8, 1885, without having made any 
other disposition of his property, and leaving him surviving, 
beside the adopted son Murli Dhar, a natural-born son named 
Nand Lai, who died childless in November, 1887. No question 
now arises as to the family custom with regard to adoption 
alleged in the wajib-ul-arz, both Courts in India having held that 
the evidence adduced by the plaintiff fell far short of establish- 
ing such a custom. Moreover it was decided by this Committee, 
in the case of Bhagivan Singh v. Bhagwan Singh (1), that under 
(1) L. R. 26 Ind. Ap. 153. 



Dhar. 



104 INDIAN APPEALS. [L, B. 

J. 0. the general Hindu law applicable to the twice-born classes, the 

1906 adoption of a sister's son is wholly void. The plaintiff's title to 
MusAMMAT succeed as an adopted son to the property of Dhanraj is no longer 

^^^^ suggested. 

MuELi The only point remaining for consideration is whether the 

clause in the wajib-ul-arz can be treated as a will, under which 
the respondent is entitled to take, as a persona designata, inde- 
pendently of the adoption. It is unnecessary, and it would be 
incorrect, to lay down, as a general proposition, that a recital 
in a wajib-ul-arz cannot operate as a will in the case of a Hindu. 
In Mathura Dm v. Bhikhan Mai (1), where the wajib-ul-arz con- 
tained these words, '' Musammat Sohni, wife of my son Salig 
Bam, shall be regarded as the owner (malik) after my death," 
both parties agreed that the statement amounted to a testa- 
mentary bequest in favour of Sohni, and the High Court gave 
effect to it. The weight to be given to such statements must 
depend, in each case, on the circumstances in which the entries 
were originally made, and the corroboration they receive from 
extrinsic evidence. 

Looking at the words used in the wajib-ul-arz in the present 
case, and assuming for the moment that it should be treated as a 
will (in order to take the point of view most favourable to the 
respondent, who was not represented by counsel at the hearing 
of this appeal), their Lordships have to consider whether it was 
the intention of Dhanraj to make the boy whom he had adopted 
his heir irrespective of adoption, or whether '* the assumed fact of 
his adoption was not the reason and motive of the gift, and indeed 
a condition of it " : Faniiidra Deb Baikal v. Rajeswar Doss. (2) 
*' The distinction," as Sir Eichard Couch observes, in giving the 
judgment of this Committee in the case just quoted, ''between 
what is descriptive only, and what is the reason or motive of a 
gift or bequest, may often be very fine, but it is a distinction 
which must be drawn from a consideration of the language and 
the surrounding circumstances." 

In the present case their Lordships have come to the con- 
clusion that the words used are descriptive only. The right of 
Murli Dhar to inherit is based entirely on the fact that he was 
(1) L L. E. 19 Allah. 16. (2) L. R 12 Ind. Ap. 72, 89. 



VOL. XXXni.] INDIAN APPEALS. 105 

an adopted son, adopted seven years previously in virtue of a J. c. 
special custom which is thus stated: "A sharer shall be at 1906 
liberty to adopt his sister's son or brother's son or daughter's musIjimat 
son, whomsoever he may like, and after his death his adopted ^^ 
son will inherit his property." This is not a similar case to Mubli 

that of Biresivar Mookerji v. Ardha Chunder Roy (1), m which 

the will was made prior to adoption, and the bequest was to the 
lad by name, for reasons independent of adoption, though 
likely to lead to it ; nor does it come within the ruling of this 
Committee in the case of Nidhoomoni Debya v. Saroda Pershad 
Mookerjee (2), in which it was held that there was a gift of his 
property by the testator to a designated person (the words being 
" I declare that I give my property to KoibuUo whom I have 
adopted"), and that this gift was not dependent on the per- 
formance of certain ceremonies by his widows. In the present 
case their Lordships are of opinion that it was the intention 
of Dhanraj to give his property to Murli Dhar as his adopted 
son capable of inheriting by virtue of the adoption; and 
that as the adoption was invalid according to the general 
Hindu law, and not warranted by family custom, it gave no 
right to inherit, and the gift therefore had no effect upon the 
property. 

The learned judges of the High Court appear to have been 
influenced in coming to their decision by the fact that, under 
the wajib-ul-arz, Murli Dhar was to get half the property, and 
that this was "more than a validly adopted son would get. 
This is an indication," they say, '* that the adoption was not the 
reason or motive of the bequest." But what are the words 
used ? " If, after this agreement a son is bom to me, half the 
property will be received by him, and half by the adopted son." 
This is not a gift to Murli Dhar personally, but a division of the 
estate according to the family custom which Dhanraj was 
endeavouring to establish, and according to which the adopted 
son was to take an equal share with natural-born sons. 

In the opinion of their Lordships the claim of Murli Dhar 
wholly fails, and they will humbly advise His Majesty that 
the appeal ought to be allowed, and that the decrees of the 
(1) L. E. 19 Ind. Ap. 101. (2) L. E. 3 Ind. Ap. 263. 



106 



INDIAN APPEALS. 



[L. E. 



J.C. 

1906 

Mu^MAT Courts. 
Lali 

r. 
MUBLI 

Dhar. 



Subordinate Judge and the High Court ought to be reversed, 

and the plaintiff's suit dismissed, with costs in both the lower 

The respondent must also pay the costs of this appeal. 

Solicitors for appellant : Pyke d Parrott. 



j.c.^ MOULVI MAHOMED IKRAMUL HUQ. . . Plaintiff; 

1906 AND 
March 21. WILKIE AND OtHBBS DEFENDANTS. 

Ex parte MOULVI MAHOMED IKRAMUL HUQ. 

ON APPEAL FEOM THE HIGH COUET IN BENGAL. 

Practice— Appealable Amount— Sect. 696, 0, C. P. 

Where a plaintiff by his plaint claimed damages above the apx>ea]able 
amount, and the suit was dismissed without any determination as to the 
amount recoyerable, and leave to appeal was refused by the High Court 
under s. 596, Civil Procedure Code, their Lordships granted special leave 
in that behalf. 

This was a petition for special leave to appeal from a decree 
of the High Court dated JcQy 22, 1905. Leave to appeal had 
been refused by the High Court on the ground that the appeal 
only related to damages, and the petitioner had not shewn under 
s. 596 of the Civil Procedure Code that the damages resulting 
necessarily amounted to Bs.10,000 or upwards. The petitioner 
now submitted that this order was erroneous, that he was 
entitled to appeal as of right, since by his plaint he had claimed 
Rs.80,000 and until by inquiry or otherwise it had been deter- 
mined that he ought to receive a less amount that sum 
determined the appealable amount. The first Court had 
directed damages, but had not decided even the principle on 
which they should be assessed, while the High Court had 
dismissed the suit. 



• Present : LoBD Maonaohten, Lord Davby, Load Atkinson, and 
Sib Akthub Wilson. 



VOL. xxxni.] 



INDIAN APPEALS. 



107 



De Gruyther^ for the petitioner, cited Mohideen Hadjiar v. 
Pitchey. (1) 

Their Lordships granted the petition. 

Solicitors for the petitioner : Watkins dt Lempriere. 



SHEIKH HUB ALI Defendant; 

AND 

WAZIE-UN-NISSA and Another Plaintiffs. 

ON APPEAL FEOM THE COURT OF THE JUDICIAL 
COMMISSIONEE OF OUDH, LUCKNOW. 

Mortgage by conditional Sale — Construction — Regulation XVII, of 1806 — 
Ejectment hy Mortgagor — Illegal Poseession by Mortgagee — Effect of entry 
in Wajih'Ul-arz as to Custom, 

On September 28, 1866, a Mahomedan, Bince deceased, executed a 
deed of mortgage for £s.2000, repayable without interest in five years, 
hypothecating the two villages in suit as security. 

On May 11, 1871, he executed a second deed in favour of the mort- 
gagee, reciting the former one, the approaching expiration of the period 
of five years without repayment, and an agreement to extend the period 
by a further thirty years upon terms that if the mortgagor should die 
within the fixed period then *^ after me the whole share of zamindari, 
.... hypothecated as above shall be considered as a complete sale " to 
the mortgagee, who, on becoming entitled to and possessed of the 
property, should be bound to make provision thereout for the mainten- 
ance of certain male members of the mortgagor's family. 

In a suit by the plaintiffs, as widow and daughter of the mortgagor, to 
eject the appellant claiming under the mortgagee, who had on the death 
of the mortgagor obtained possession and mutation of names as absolute 
purchaser : — 

Held — (1.) That on the evidence the plaintiffs were widow and daughter 
as alleged ; 

(2.) That an entry in a wajib-ul-arz was insufficient by itself to 
establish a custom to exclude them from inheritance ; 



J. C. 
1906 

MOULVI 

Mahomed 
Ikrahul 

HUQ 

V. 

WiLKIB. 

MOULVI 

Mahomed 
Ikramul 

HUQ, 
^D parte, 

J. C* 
1906 

Feb. 22, 23 ; 
April 10. 



♦ Present : LoRD Davey, Sir Andrew Sooble, and Sir Arthur W«*80N, 



(1) [1893] A, C. 193, 



108 



INDIAN APPEALS. 



[L.E. 



J. C. 
1906 

Sheikh 
Hub Ali 

Wazie-un- 

NISSA. 



(3.) That, on the true oonstraction of the mortgage and Begola- 
tion XYII. of 1806, the property did not on the death of the mortgagor 
vest in the mortgagee as absolute purchaser ; 

(4.) That he took possession as a trespasser and could be sued by the 
mortgagor in ejectment without offering to redeem. 

Appeal from a decree of the above Court (January 7, 1902), 
which set aside a decree of the District Judge of Fyzabad 
(February 4, 1898), and decreed the respondents' claim for 
possession of the eight annas share of two villages, the subject 
of suit, with mesne profits. 

The suit was brought by Sughra Bibi (since deceased), the 
daughter of Baza Ali, Wazir-un-nissa, who was described as the 
widow of Bazi Ali, and Sheikh Inayet-ul-lah, a purchaser from 
them of half of their rights in the property in suit, to recover the 
said eight annas share from Eazim Husain Khan and the 
appellant with mesne profits from date of suit to date of 
recovery. 

The plaint alleged that Baza Ali was absolute owner thereof 
and died on January 2, 1881, leaving his daughter and widow as 
his heirs, having mortgaged the property on May 11, 1871, for 
thirty years without possession to Baja Tajammul Husain Khan, 
the predecessor of Kazim Husain Khan, by deed of mortgage by 
conditional sale of that date ; that Husain Khan on January 4, 
1881, took possession thereof without foreclosure proceedings 
'* contrary to the terms of the mortgage deed" and got mutation 
of names for the same in his own name as proprietor ; but that 
the appellant subsequently obtained possession thereof under a 
decree in a pre-emption suit dated November 4, 1884, to which the 
plaintiffs were not parties and by which they were not bound. 

Kazim Husain Khan pleaded that he took possession under 
the deed of 1871, and that he was entitled to keep it for thirty 
years. The appellant denied that the respondent Wazur-un-nissa 
was ever married to Baza Ali ; and alleged that even she were 
she was a ghair kuf woman (not of the brotherhood), and that 
under the terms of the wajib-ul-arz relating to the property 
neither she nor her daughter could inherit to Baza Ali. He also 
contended that the transaction of May 11, 1871, became an 
absolute sale on Baza Ali's death, and that there was no necessity 



VOL. XXXni.] INDIAN APPEALS. 109 

for taking foreclosure proceedings. He pleaded that Husain j. c. 
Ehan lawfully entered into possession, and that he himself law- 1906 
fully obtained possession under a decree of Court on payment shmh 
of Rs.4,400 and was not a trespasser ; that the plaintiffs should ^^^. ^^^ 
have sued for redemption, and that the suit in its present form Wazie-un- 
does not lie. — 

The transaction between Baza Ali and Tajammul Husain 
Ehan, the predecessor of Husain Ehan, was evidenced by two 
deeds, of September 28, 1866, and May 11, 1871. The first was 
an hypothecation of the property now in suit for Bs.2000 for five 
years, without any stipulation as to interest. It also provided 
for an absolute sale thereof on the mortgagor dying within the 
period of five years without having paid the debt, a contingency 
which did not happen. Towards the expiration of that period, 
without payment, the second deed, of 1871, was executed, the 
effect of which was to extend the period to thirty years from that 
year, again without stipulation as to interest. The deed contained 
the following provisions : — 

'' 8. The third condition is, if, God forbid, within the fixed 
period I die, then, after me, the whole share of zamindari of 
villages Hasanpur Tanda and Asauna, as detailed below, in 
part and entirety, exclusive of Sadrapur, owned and possessed by 
me, and hypothecated as above, shall be considered as a com- 
plete sale in favour of Muhammad Tajammul Husain Ehan, 
creditor, in lieu of the debt, and none of my sharers, representa- 
tives and heirs, shall, expressly or otherwise, have remaining any 
claim or right, and the said creditor thenceforward shall be taken 
as the real owner of the said property ; and this very deed shall 
be considered as a complete sale-deed. 

" 4. The fourth condition is, after my death, when the said 
creditor becomes entitled to, and possessed of, the property 
covered by this deed of mortgage by conditional sale, as pro- 
prietor thereof, he shall have to maintain Hadi Husain, Mehdi 
Husain and Muhammad Husain, brothers of Eazi Zain-ul 
Abdin, residents of Sehali, on this scale : 

'' 150 village bighas of land within the boundaries of village 
Hasanpur Tanda, and 11 houses of weavers, an occupied house 
and one-half of the grove, and the power of exacting suitable 



110 INDIAN APPEALS. [L. R. 

J. c. services from rayets (service tenants), residents of Hasanpur 

1906 Tanda; you shall also have to give according to this recom- 

shbikh mendation, and this land and the houses of the rayets above 

Hub ali noted shall remain for the three sons, each in equal shares, 

Wazib-un- without any interference on the part of anybody. 

'* Therefore, these few words as a mortgage by conditional sale, 

complete, have been executed on a stamped paper of full value 
and registered under seal of the registration office, that it may be 
of use at the time of need.*' 

On November 14, 1884, the appellant obtained a final decree 
for pre-emption against Husain Khan "on condition of his giving 
to the sons of Zain-ul Abdin or their representatives the provision 
made for them by Baza Ali." 

Both the Courts below held in this suit that the deed of 1871 
must be construed as a mortgage by conditional sale, and that 
Eegulation XVII. of 1806 gave the mortgagor a year's grace from 
the time of the issue of a notice to him thereunder. 

The District Judge dismissed the suit, finding on the evidence 
that Wazir-un-nissa was not the lawful wife, and that Sughra Bibi 
was not the legitimate daughter of Baza Ali ; and that, if a lawful 
wife and a legitimate daughter, they were excluded from inherit- 
ance by custom. He decided the issue as to custom excluding 
a ghair kuf wife from inheritance on the ground that "there 
is no evidence that there were any inter-marriages between 
the families of Mahbub Ali (i.e., the father of Wazir-un-nissa) 
and Baza Ali or their relations prior to Baza Ali taking Musammat 
Wazir-un-nissa, and according, therefore, to the literal meaning 
of ghair kuf, and as it is understood by Hadi Husain, Mehdi 
Husain, and other witnesses, Musammat Wazir-un-nissa was a 
ghair kuf woman, that is, a woman belonging to a strange family. 
There have been no analogous instances cited in which such a 
woman has not succeeded to her husband's property. The wajib- 
ul-arz, however, which was signed by Baza Ali, is clear on the 
point that they cannot succeed, and that must be evidence of 
the custom until the contrary be proved. No evidence to the 
contrary has been given. Whether it is a hard and unfair custom 
is not for me to decide." 
The appellate Court found in favour of Wazir-uu-nissa's 



VOL. XXXin.] INDIAN APPEALS. Ill 

marriage with Eaza Ali, and the consequent legitimacy of Sughra j. c. 

Bibi. With regard to the custom, the judgment found that 1906 

Wazir-un-nissa was not a ghair kuf wife ; that if she were, the smikh 

wajib-ul-arz did not estabUsh a custom to exclude her, nor did ^^®^ ^^^ 

the evidence. The custom, it says, " is recorded in the wajib- Wazik-un- 

NISSA. 

ul-arz of the village ; but the wajib-ul-arz begins with the ' 

words ba ikrar, or by agreement, and it therefore cannot be 
presumed to be necessarily the record of an old and estab- 
lished custom. It does not purport to be more than an 
agreement between the parties who signed it, and there is no 
clear evidence of instances in which the custom was recognized 
and acted on." 

Cowell, for the appellant, contended that the intention and 
effect of the deed of 1871 were to vest an absolute title to the 
property in suit in Tajammul Husain Khan or his heir on the 
death of the mortgagor. The deed did not create a debt or a 
mortgage. Both were existing at its date, and the mortgagor of 
the earlier deed could by deed subsequent release the existing 
equity of redemption. There was no consideration other than 
the release for the extension of the period of mortgage by a 
further thirty years without interest. In the provision for the 
three nephews a kind of family settlement was provided of a 
portion of the property originally mortgaged; and neither 
Regulation XVII. of 1806 nor the Transfer of Property Act 
contemplated such a transaction in the light of a mortgage by 
conditional sale. So far as this deed was one of hypothecation 
there was no sale, and so far as it was a sale there was no 
condition as to payment of debt. It did not, therefore^ fall 
within s. 58, clause 8, of the Act. It fell within s. 98, and 
was to be construed according to the intention of the parties, 
freed from the technical rules applicable to a mortgage by con- 
ditional sale. If the transaction was one of redeemable mortgage 
the only remedy is that given by Regulation XVII. of 1806, 
which was in force at its date, or by the Transfer of Property 
Act, which regulated the procedure to be adopted at the time the 
suit was brought. The respondents have not followed that 
remedy nor offered to redeem, but have brought ejectment, to 



112 



INDIAN APPEALS. 



[L. E. 



J. C. 
1906 

Sheikh 
Hub Ali 

V. 

Wazib-un- 

NIBSA. 



which they are not entitled, either under the contract, the 
Begulation, or the Act. Reference was made to Sayyid Manaur 
Ali Khan v. Sarju Prasad (1) ; Bhagwan Sahai v. Bhagwan Din. (2) 
It was also contended on the evidence thaj; the plaintiffs did not 
represent Baza Ali, for there had been no marriage ; otherwise 
the wajib-ul-arz, which had been signed by Baza Ali, proved a 
custom to exclude the wife as ghair kuf, and no evidence had 
been given to the contrary. 

De Oruyther, for the respondents, contended that the evidence 
established that Wazir-un-nissa was the lawfully married wife of 
Baza Ali, and that Sughra Bibi was his legitimate daughter. The 
custom relied upon for excluding them was not proved. In the 
first place it was doubtful what was the true meaning of ghair 
kuf. If it meant, as several of the witnesses said, that a 
woman was ghair kuf to a man if there had been no previous 
inter-marriage between the families, there could be no marriage 
at all except where a previous affinity existed, which would 
be an unreasonable and impossible custom. The entry in the 
wajib-ul-arz would, even if admissible, be insufficient evidence 
by itself of custom, and no instances had been given. The onus 
was on the appellant to prove it, and he could not use the entry 
as shifting the onus to the respondents of giving instances to 
the contrary. With regard to the effect of the . deed of 1871, 
it was recited to be a mortgage by conditional sale, and that 
was the intention of the parties. It was governed by Eegula- 
tion XVII. of 1806: see Act XVIII. of 1876, ss. 5 and 10, and 
Macpherson on Mortgages, 7th ed. p. 298. It was contended 
that no action of ejectment would lie, and that the proper remedy 
was redemption ; but see Forbes v. Ameeroonissa Begum. (8) Both 
Courts have rightly held that possession was illegally taken by 
the mortgagee, who ought to have followed the procedure 
prescribed by the Begulation. 

Coweli, replied, referring to Limitation Act (XV. of 1877), 
Sched. II., art. 116, as to taking possession in breach of con- 
tract, and to Rani Lekraj Kuar v. Mahpal Singh (4), as to the 
effect of the wajib-ul-arz. 

(1) (1886) L. R. 13 Ind. Ap. 113. (3) (1865) 10 Moo.Ind. Ap.340,348. 

(2) (1890) L. R, 17 Ind. Ap. 98. (4) (1879) L. R 7 Ind. Ap. 63, 70. 



Wazir-un- 

NISSA. 



VOL. XXXm.] INDIAN APPEALS. 113 

The jadgment of their Lordships was delivered by j. o. 

Sir Arthur Wilson. The suit out of which this appeal arises ^^^ 
was instituted on August 18, 1890. The plaintiffs were Shbikh 
Sughra Bibi and Wazir-un-nissa (claiming to be daughter and ^.. 
widow, and as such co-heiresses, of one Baza Ali, deceased) and 
Inayet-ul-lah, an assignee from the ladies of a share of their 
inheritance. The defendants were Eazim Husain Khan and the ^^ 
present appellant, Hub Ali, whose connection with the matters 4/^^^ i^- 
in dispute will be explained later. 

The case presented on behalf of the plaintiffs was that about 
1856 or 1857 Baza Ali, whose home was then at Seota, was law- 
fully married to Wazir-un-nissa, and resided with her there for 
some time, and that Sughra Bibi was the legitimate daughter of 
that marriage ; that subsequently Baza Ali migrated to Tanda, 
whither he was shortly followed by his wife and daughter, who 
lived with him there until his death, which took place on 
January 2, 1881 ; and that they, as such widow and daughter, 
were his lawful heirs according to Mahomedan law. It was 
further alleged that Baza Ali, at the time of his death, was the 
owner of an eight annas share in the villages Hasanpur Tanda and 
Asauna; and that on May 11, 1871, he had mortgaged that 
property by deed of conditional sale to Baja Tajammul Husain 
Ehan for a period of thirty years, without possession, to secure a 
principal sum of Bs.2000 without interest. It was then said 
that on January 4, 1881, immediately after the death of Baza 
Ali, the defendant Kazim Husain Khan, the representative of 
the original mortgagee, without any foreclosure or other legal 
proceedings, procured mutation of names for the mortgaged pro- 
perty in his own favour, and shortly afterwards entered into 
possession ; and that the other defendant had obtained a decree 
in a pre-emption suit against Kazim Husain Khan, to which 
the plaintiffs were no parties, and acquired possession of the 
property. On the basis of the case thus indicated the plaintiffs 
asked for a decree for possession of the property and mesne 
profits. 

In answer to this case the defendant Hub Ali, now appellant, 
denied that Wazir-un-nissa was the wife, or Sughra Bibi the 
daughter, of Baza Ali. He alleged, secondly, that, if there had 

Vol. XXXni. I 



114 



INDIAN APPEALS. 



[L. E. 



J. C. 
1906 

Sheikh 

Hub Ali 

r. 

Wazib-un- 

MISSA. 



been a marriage, both wife and daughter* were excluded from 
inheritance under the terms of* the wajib-ul-arz, on the ground 
that the wife was a ghair kuf woman. It was set up, thirdly, 
that by the terms of the alleged mortgage the property vested 
absolutely in the mortgagee on the death of Baza Ali, and that 
the mortgagee, and after his death his representative, was 
entitled to take possession without any legal proceedings. It was 
said, lastly, that the plaintiffs ought, upon their own view of the 
case to have sued for redemption and could not sue for possession. 
These were the four questions discussed before the Courts in 
India, and again argued on the appeal before their Lordships. 

The District Judge dismissed the suit. He held that the 
marriage of Wazir-un-nissa was not proved. He held, further, 
that, if a marriage did take place, the wife was ghair kuf within 
the meaning of the wajib-ul-arz, and that therefore mother and 
daughter were excluded from inheritance. On the other hand, 
he thought that the document called a mortgage by conditional 
sale was really so ; that the mortgagee or his representative had 
no right except to have recourse to foreclosure proceedings ; and 
that, in taking possession as he did, he was a trespasser, against 
whom a suit for possession might properly lie. 

In the Court of the Judicial Commissioner it was held that 
Wazir-un-nissa was the lawfully married wife of Kaza Ali, and 
Sughra Bibi their legitimate daughter; that the alleged custom, 
based upon the wajib-ul-arz, to exclude a ghair kuf wife and her 
daughter was not proved, and that if it were proved, Wazir-un- 
nissa was not a wife of that class. It was further held, in con- 
currence with the first Court, that the document of May 11, 
1871, was a mortgage by conditional sale, and that the entry by 
the representative of the mortgagee was a mere trespass ; and 
accordingly a decree was given to the plaintiffs for possession and 
mesne profits. 

Their Lordships agree with the conclusions arrived at by the 
Court of the Judicial Commissioner on all points. 

As to the fact of the marriage, it was spoken to by the Qazi, 
who says he performed the ceremony, and by four other 
witnesses who profess to have been present. Those witnesses 
were disbelieved by the first Court, for reasons which are not 



VOL. XXXin.] INDIAN APPEALS. 115 

very convincing — reasons which are quite sufficient to demand j. c. 
an examination of the evidence in support of the marriage as a i906 
whole and with care, but not sufficient to justify the summary s^I^h 
rejection of the testimony of the witnesses in question. The ^^^ -^^^ 
next branch of the evidence in support of the marriage relates to Wazib-un- 

the position and treatment of the alleged wife and of her ' 

daughter. With regard to this it seems clear that from the 
time of the alleged marriage Wazir-un-nissa lived with Eaza Ali 
as his wife down to his death. She and her daughter lived in 
the inner apartments of the house, whereas a mistress who was 
kept by Baza Ali lived at the same time in the outer apartments. 
As to the amount of social intercourse between the two ladies 
and others more or less connected with Baza Ali's family, the 
evidence is loose, as is usual in such cases. The daughter, 
Sughra Bibi, whose parentage is not disputed, was married by 
her father, with considerable ceremony and publicity, to a man 
of respectable family. Upon the death of Baza Ali, the Patwari, 
in his official report, declared that Wazir-un-nissa, his wife, and 
Sughra, his daughter, were his heirs. The present appellant 
himself, in his evidence on a former occasion, describes Wazir- 
un-nissa as the wife of Baza Ali. 

From all this their Lordships think the proper inference is 
that the marriage did take place ; and it follows that the widow 
and daughter were heirs of Baza Ali, under the Mahomedan law, 
unless there was something special to exclude them. 

The special circumstance relied upon as excluding them from 
the inheritance was that Wazir-un-nissa (it was said) was a 
ghair kuf wife, and that she and her daughter were excluded 
by custom. Apart from the wajib-ul-arz, it appears to their 
Lordships that there is absolutely no evidence of any custom on 
the subject. There is simply a series of statements by witnesses, 
as to what is usual and what they consider becoming, with 
reference to inter-marriages between different groups of Maho- 
medan families, but there is no instance produced of anybody 
having been excluded from inheritance in consequence of a 
marriage not in accordance with the witnesses' views of propriety. 
The District Judge based his finding upon a statement in the 
wajib-ul-arz of the village of Hasanpur Tanda. That document, 

I 2 



116 INDIAN APPEALS. [L. R. 

J. c. under the heading " Transfer of Property and Eight of Inherit- 

1906 ance/' says : 
Sheikh " A married wife belonging to a (ghair kuf) different caste, 
Hub ali ^^^ ^^ unmarried wife, or their descendants will, provided they 
Wazir-un- bear good conduct, be entitled to maintenance according to their 

* status, and they will not be entitled to any share whether the 

property be partitioned or unpartitioned." 

That document bears the signatures, amongst others, of Baza 
Ali and the present appellant ; and the fact that Baza Ali signed 
it makes it admissible, for what it is worth, against those who 
are claiming as his heirs. But the Judicial Commissioner has 
pointed out that the document commences with words meaning 
** by agreement," so that it does not purport to be a record of 
immemorial custom. The learned counsel for the first respon- 
dent drew attention to the fact that, though the parties were all 
Mahomedans, the rules of inheritance laid down are really based, 
not upon Mahomedan, but on Hindu law. In the absence of 
other evidence in support of the alleged custom, their Lordships 
are of opinion that the entry in the wajib-ul-arz is insufficient to 
establish it. They further agree with the Judicial Commissioner 
that, supposing such a custom to be established, the case of 
Wazir-un-nissa has not been shewn to fall within it. Baza Ali 
was by family a Syed, Wazir-un-nissa was by family a Sheikh, 
and the social position of her father is stated to have been good. 
If any conclusion can be drawn from the vague and conflicting 
statements of the witnesses, it appears to their Lordships to be 
that such a marriage would not fall within the ban implied by 
the term " ghair kuf." 

The nature of the mortgage transaction and its legal effect 
have next to be considered. On September 28, 1866, Baza Ali 
executed a deed of mortgage in favour of Tajammul for Bs.2000, 
repayable in five years, hypothecating the two villages in question 
as security, and providing in paragraph 8 that if '' I die within 
the fixed period without paying the said loan then after me the 
whole share of my zamindari which has been hypothecated, 
shall be considered as a complete sale to Tajammul .... in 
lieu of the debt." The same paragraph describes the deed as a 
''mortgage deed by conditional sale." 



VOL. XXXm.] INDIAN APPEALS. 117 

On May 11, 1871, the mortgagor executed a second deed in J. o. 
favour of the mortgagee. This deed recited the former mortgage. 1906 
It recited that the time for payment had nearly expired, and the shbikh 
mortgagor could not pay off the debt, and that at his request the ^^^ -^^ 
mortgagee had extended anew the period for payment to thirty Wazib-uk- 

years from the next year, upon terms which are stated. First, 

the mortgagor pledged himself for payment at the prescribed time. 
Thirdly, it was agreed that if the mortgagor should die within 
the fixed period, then '' after me the whole share of zamindari 
.... hypothecated as above shall be considered as a complete 
sale " to Tajammul. The fourth condition provided that when 
the creditor became entitled to and possessed of the property, he 
should be bound to make provision for the maintenance of certain 
male members of the family to which the mortgagor belonged. 

At the time when the mortgage of May 11, 1871, was 
entered into, and also at the time when the representative of the 
mortgagee took possession of the property, after the death of 
Eaza Ali, the law governing the matter was Bengal Eegulation 
XVII. of 1806 ; the Transfer of Property Act had not passed. 

Their Lordships think it clear, as did both the Courts in India, 
that the mortgage of 1871 was in substance, what it describes 
itself as being, a mortgage by way of conditional sale. For the 
appellant it was suggested that the document might be read as 
containing two separate and distinct transactions — first, a mort- 
gage by mere hypothecation, which was not a conditional sale, 
and, secondly, a conditional sale which was not a mortgage. This, 
in their Lordships' opinion, would be to apply an artificial and 
illegitimate method of construction to a document which can be 
naturally, and without difficulty, construed and applied as a 
whole. 

Such being the nature of the transaction, the rights of the 
parties under the Eegulation admit of no doubt. The mortgagee 
or his representative had the right to take legal proceedings with 
a view to foreclosure ; and that foreclosure he could have obtained, 
if, after the proper steps had been taken, the representatives of 
the mortgagor had failed to redeem within the time limited for 
that purpose by the terms of the Eegulation. But there was no 
right to take possession of the property without the proceedings 



118 



INDIAN APPEALS. 



[L. E. 



J. 0. 

1906 

Sheikh 
Hub Ali 

V. 

Wazib-un- 

NISSA. 



prescribed by law. In entering as he did, therefore, the repre- 
sentative of the mortgagee was a mere trespasser, and the heirs 
of the mortgagor are entitled to sue him in ejectment as such. 

Their Lordships will humbly advise His Majesty that this 
appeal should be dismissed. The appellant will pay the costs. 

Solicitors for appellant : Barrow, Rogers d NeviU. 
Solicitors for respondent : Watkina d Lempriere, 



J.C.* DHANIPAL DAS AND ANOTHEE 

1906 A.ND 



Plaintiffs ; 



Defendant. 



Feb^ 16 21; RAJA MANESHAE BAKHSH SINGH . . 

May 10. 

ON APPEAL FROM THE OOUBT OF THE JUDICIAL 

COMMISSIONER OF OUDH. 

Ottdh Land Revenue Act, 1876, c. viii, — Construction — Rights of Disqualified 
Proprietor — Right to contract Debts — Indian Contra^ Act, s, 16 — Act VL 
of 1899, 5. 2 — Bond set aside — Decree for Loan and reasonable Interest, 

According to the true construction of c. viii. of the Oudh Land Revenue 
Act, 1876, there is no prohibition, either express or necessarily implied, 
of a disqualified proprietor contracting debts or borrowing money. But 
he may not, without the sanction of the Court, create any charge upon 
his property. 

In an action upon a bond executed by a disqualified proprietor, with- 
out the sanction of the Court : — 

Held, that he was not incompetent to execute it, but that the position 
of the parties was such that the lender was '4n a position to dominate 
the will '* of the borrower within the meaning of s. 16 of the Indian 
Contract Act as amended by s. 2 of Act YI. of 1899 ; and that he used 
that position so as to obtain an unfair advantage. 

There having been concurrent findings of fact that the compound 
interest stipulated was unconscionable, and also that simple interest at 
18 per cent, per annum would not have been high : — 

Held, that the bond sued on must be set aside, but that there should 
be a decree for the principal sums actually lent, with simple interest at 
that rate. * 



Appeal from a decree of the above Court (June 3, 1902), 
modifying a decree of the Subordinate Judge of Sitapur 
(January 81, 1901). 

♦ Present: Lord Davey, Lobd Bobebtson, Lobd Atkinson, Sir 
Andrew Sgoble, and Sir Arthur Wilson. 



VOL. XXXm.] INDIAN APPEALS. 119 

The questions involved in the appeal under the circumstances J. c. 
stated in their Lordships' judgment are : (1.) whether the terms 1906 
of the bond in suit were hard and unconscionable ; (2.) whether dhIwipal 
in the circumstances it was obtained by the plaintiff from the ^^ 
respondent under undue influence within the meaning of s. 16 of Raja 
the Indian Contract Act, 1872, as amended by s. 2 of Act VI. bakhbh 
of 1899, which came into operation on May 1, 1899; and ^^^' 
(S.) whether, if it was, the respondent had ratified and confirmed 
it prior to suit. 

Sect. 2 of Act VI. of 1899 is as follows : " Sect. 16 of the 
Indian Contract Act, 1872, is hereby repealed, and the following 
is substituted therefor, namely — 16. (1.) A contract is said to be 
induced by undue influence where the relations subsisting 
between the parties are such that one of the parties is in a 
position to dominate the will of the other and uses that position 
to obtain an unfair advantage over the other. 

" (2.) In particular, and without prejudice to the generality of 
the foregoing principle, a person is deemed to be in a position to 
dominate the will of another — 

" (a) when he holds a real or apparent authority over the 
other, or where he stands in a fiduciary relation to the other, or 

" (b) where he makes a contract with a person whose mental 
capacity is temporarily or permanently affected by reason of age, 
illness, or mental or bodily distress. 

" (8.) Where a person who is in a position to dominate the will 
of another enters into a contract with him and the transaction 
appears on the face of it, or on the evidence adduced, to be 
unconscionable, the burden of proving that such contract was not 
induced by undue influence shall lie upon the person in a position 
to dominate the will of the other. Nothing in this sub-section 
shall affect the provisions of s. Ill of the Indian Evidence Act, 
1872. 

" Illustration. 

" (c) A. being in debt to B., the money-lender of his village, 
contracts a fresh loan on terms which appear to be unconscion- 
able. It lies on B. to prove that the contract was not induced by 
undue influence." 

This suit was brought by Auseri Lai, predecessor of the 



Singh. 



120 INDIAN APPEALS. [L.R 

J. c. appellants, against the respondent, Taluqdar of Mallanpur, whose 

1906 estate had been, by order of the local Government dated 
DHi^pAL A.ugu8t 6, 1886, made under Act XVII. of 1876, brought under 

^^^ the management of the Court of Wards. The bond sued upon 

Raja was dated February 4, 1889. 

bakhsh The pleas were that the bond was inoperative in law, having been 
executed at a time when the estate was under the management 
of the Court of Wards, and that, if enforceable, it was voidable 
on the ground of undue influence, or was executed under circum- 
stances in which a Court of Equity would not enforce it according 
to its terms. 

The Subordinate Judge held that the case was not one of fraud 
or undue influence, but of inequitable dealing. He decided to 
interfere in the enforcement of the hard terms of the contract, 
and accordingly allowed simple interest at 18 per cent., but not 
compound interest. 

The Court of the Judicial Commissioner affirmed the finding 
of the Subordinate Judge that the contract was not void in law 
because it was executed while the respondent's property was 
under the management of the Court of Wards, and also that the 
bargain between the parties was a hard, and, they added, 
unconscionable one. The judges of the Court difl'ered from him 
on the question of the applicability of s. 16 of the Indian 
Contract Act, 1872 as amended to the case. They held that in 
the circumstances it was on the plaintiff to shew that the bond 
was not executed under undue influence, that he had not done so, 
that the transaction was a voidable one, that the respondent had not 
ratified it, and that it should be set aside. They accordingly set 
aside the bond of January 13, 1892, and, granting equitable relief 
to the respondent, made a decree in favour of the plaintiff for 
the sum of Es.4500, with interest from February 4, 1889, and for 
the sum of Es.l250, with interest from January 13, 1892, at the 
rate of 6 per cent, per annum to the date of payment, giving 
him proportionate costs and directing each party to pay his own 
costs as to the rest of the claim. 

W. C, Bonnetjee, for the appellant, contended that the terms 
of the bond were not hard and unconscionable ; nor was there 



VOL. XXXm.] INDIAN APPEALS. 121 

any undue influence within the meaning of the above sections. j. c. 
Even if the contract were voidable, the evidence shewed that the 1906 
respondent had ratified it at a time when no question of undue dhInipal 
influence had or could have arisen. He contended that the ^^^ 
cases of Earl of Aylesford v. Morris (1), Beynon v. Cook (2), Raja 
Nevxll V. SneUing (8), Fry v. Lane (4), and Kamini Soondari Chow^ bakhsh 
dhrani v. Kali Prosunno Ohose (5), on which the Courts below ^^h- 
relied, were not applicable to this case. He referred to Webster 
V. Cook (6) ; Bennet v. Bennet (7) ; Wilton dk Co. v. Osborn. (8) 

De Gruyther, for the respondent, contended that the bond was 
invalid in law, having been executed when the respondent was 
disqualified from entering into a contract of the kind, resulting 
necessarily in a charge on his estate, which was under the 
management of the Court of Wards, and of which he was the 
disqualified proprietor. He referred to the reasons given in the 
preambles to Kegulations X. of 1798 and LII. of 1808 ; also to 
Act XIX. of 1878, c. vi. (Court of Wards) and s. 198 ; to Act 
XVII. of 1876, SB. 162, 178, and 174 ; Mohummud Zahoor Ali 
Khaxi V. MusBumat Thakooranee Rutta Koer (9) ; Bai Balkriahna 
V. MusBumat Masuma BiU (10); Waghela Rajsanji v. Shekh 
Maslvdin. (11) He contended on the evidence that the consent 
of the respondent had not been obtained by undue influence, but 
under circumstances in which all the terms of the transaction 
should be strictly enforced. Upon the question of their being 
unconscionable he referred to Rajah Mokham Singh v. Rc^ah 
Rup Singh (12) ; Lalli v. Ram Prasad (18) ; Madho Singh v. Kashi 
Ram (14) ; Kamini Soondari Chowdhraniy.Kali Prosunno Ohose. (5) 

Counsel for the appellant was not heard in reply. 

The judgment of their Lordships was delivered by 
Lord Davey. The original plaintiff Auseri Lai was the head 1906 
of a joint Hindu family. He is now deceased, and the present Mh^io. 

(1) (1873) L. E. 8 Oh. 484. (8) [1901] 2 K B. 110. 

(2) (1875) L. R. 10 Ch. 389. (9) (1867) 11 Moo. Ind. Ap. 468. 

(3) (1880) 15 Oh. D. 679. (10) (1882) L. E. 9 Ind. Ap. 182. 

(4) (1888) 40 Oh. D. 312. (11) (1887) L. E. 14 Ind. Ap. 89, 96. 

(5) (1885) L. E. 12 Ind. Ap. 215. • (12) (1893) L. E. 20 Ind. Ap. 127. 

(6) (1867) L. E. 2 Oh. 542, 548. (13) (1886) Ind. L. E 9 Allah. 74. 

(7) (1876) 43 L. T. 246, n. (14) (1887) Ind. L. E. 9 Allah. 228. 



SmoH. 



122 INDIAN APPEALS. [L. B. 

J. c. appellants, as the surviving members of the family, have been 
1906 substituted for him on the record. Auseri Lai, on behalf of the 
dha^pal ffl-Diily, formerly carried on the business of a banker and money- 
^^^ lender in the district of Sitapur, in Oudh ; and in the coarse of 
Raja his business he had, previously to the transactions which are the 
Bakhsh subject of this appeal, lent money to the respondent, who was 
and is the Taluqdar of Mallanpur, in the same district. 

In the year 1886 the respondent, being then largely involved 
in debt, was, on his own application, declared by the Chief 
Commissioner of Oudh a disqualified proprietor under the pro- 
visions of the Oudh Land Revenue Act, 1876, and his property 
was placed under the charge of the Court of Wards on August 12 
in that year. The respondent's property remained under such 
charge until some time in the month of July, 1898, when it was 
released to him, and he resumed possession. While the estate 
was under its charge the Court of Wards made an allowance of 
Bs.l250 per mensem to the respondent for the maintenance of 
himself and his family. 

On February 4, 1889, the respondent, without the sanction of 
the Court of Wards, borrowed from Auseri Lai the sum of 
Bs.4600, and executed in his favour a bond which was duly 
registered for that amount stipulating that he would repay the 
amount in two years, with interest at the rate of Bs.2 per 
mensem, payable half-yearly out of his allowance of Rs.l250 
per mensem, and stipulating further that in case default was 
made in the payment of interest he would pay compound interest 
at the same rate until the amount secured by the bond was fully 
paid off and satisfied. The respondent did not pay any sum 
either for principal or interest due on this bond, and after it had 
become due negotiations were apparently opened by his oflScers 
on his behalf with the plaintiff for a further advance at a lower 
rate of interest. In the result an account was settled between 
the respondent and Auseri Lai of the amount due on the bond 
for Ks.4500, and it was found that that sum, with interest and 
compound interest at the rate of 2 per cent, per mensem up to 
January 18, 1892, came up to Bs.8760. On the last-mentioned 
date Auseri Lai advanced to the respondent the further sum of 
Bs.1250, and the latter without the sanction of the Court of 



VOL. XXXm.] INDIAN APPEALS. 128 

Wards executed in favour of the former a bond, also registered, J. c. 
for the total sum of Bs. 10,000, stipulating that he would repay 1906 
the amount in seven years, with interest at the rate of Bs.l. 8 dhaniipal 
per cent, per mensem payable half-yearly, and stipulating ^^^ 
farther that in default of payment of interest on due dates he Raja 
would pay compound interest at the same rate, and that he bakhsh 
would pay interest and compound interest on the amount Smon. 
secured by the bond until it was fully paid off and satisfied. 

The present suit was brought on the bond of January 18, 1892. 
The defence is, first, that the respondent, being at the date of the 
bond a disqualified proprietor, had no power under the Act to 
borrow money without the sanction of the Court of Wards ; and, 
secondly, that the bargain was an unconscionable one, and 
procured by the exercise of undue influence within the meaning 
of s. 16 of the Indian Contract Act, 1872, as amended by s. 2 
of Act VI. of 1899. 

The first point depends on the construction and effect of the 
group of sections (161 to 177) in the Oudh Land Revenue Act, 
1876, intituled " Chapter VIII. Court of Wards." Sect. 162 
defines the persons who shall be held to be disqualified to 
manage their own estates, including (g) persons declared by the 
Chief Commissioner on their own application to be disqualified. 
By 8. 166 the jurisdiction of the Court of Wards extends to the 
care and education, and to the management of the property, of 
the persons subject thereto. By s. 167 the Court of Wards may 
appoint managers of the property of disqualified proprietors, and 
if such proprietors be minors, idiots, or lunatics, may appoint 
guardians for the care of their persons. By s. 170 the manager 
appointed by the Court of Wards may collect the rents of the 
land entrusted to him as well as all other money due to the 
disqualified proprietor, and may, subject to the control of the 
Court, grant or renew leases of a limited duration. The more 
important sections are 178 and 174. 

" 178. Persons whose property is under the superintendence 
of the Court of Wards shall not be competent to create without 
the sanction of the Court any charge upon or interest in such 
property or any part thereof. 

" 174. No such property shall be liable to be taken in execution 



Singh. 



124 INDIAN APPEALS. [L. B. 

J. c. of a decree made in respect of any contract entered into by any 
1906 such person while his property is under such superintendence." 
dhanTpal From a perusal of the group of sectiona above referred to their 
^^ Lordships are of opinion that it was not intended to interfere 
Raja with the personal status or rights of an adult disqualified pro- 
bakhsh prietor who is neither idiot nor lunatic, except as regards the 
management of his property or anything expressly prohibited. 
There is no prohibition of a disqualified proprietor contracting 
debts or borrowing money, and it is contemplated in s. 174 that 
such a person may enter into contracts which, but for the pro- 
visions of that section, might result in his property being taken 
in execution. But the disqualified proprietor may not without 
the sanction of the Court create any charge upon his property. 
It was argued, however, that to allow a disqualified proprietor to 
contract debt would enable him by anticipation to waste the 
estate when restored to his care, and so defeat the objects of the 
Act, and would therefore be inconsistent with the other provisions 
and purposes of the Act. This argument would have been a 
cogent one for the consideration of the Legislature in framing 
the Act. But their Lordships think that there is no necessary 
implication of a prohibition to contract personal obligations, and 
they are not entitled to read into the Act a curtailment of the 
proprietor's personal rights whch they do not find there. 

Their Lordships were referred to the case of Mohummud 
Zahoor All Khan v. Miissumut Thakooranee Rutta Koer (1), in 
which it was said that Sir James Golvile, delivering the judgment 
of this Board, had assumed that a disqualified landowner whose 
estate had been placed under a manager by the Court of Wards 
under Bengal Begulation LII. of 1808 was incapacitated from con- 
tracting debts, as had in fact been decided by the Sudder Dewanny 
Court at Agra. It was not, however, necessary to consider the 
point, as their Lordships held that the necessary formalities had not 
been complied with for making the person in question a dis- 
qualified proprietor, and gave judgment for the amount due on 
the bond. There was therefore no decision on the point. In 
the case of Rai Balkrishna v. Mvsmmat Maauma Bibi{^) the 
language of the marginal note is misleading, for the only 
(1) 11 Moo. Ind. Ap. 468. (2) L. E. 9 Ind. Ap. 182. 



Singh. 



VOL. XXXni.] INDIAN APPEALS. 125 

question was whether the proprietor was competent to convey j. c. 
the property by mortgage or sale while the estate was under the 1906 
management of the Court of Wards, and nothing was decided or dhLop^l 
said on the question now under consideration. Their Lordships ^^s 
agree with the decision come to by both Courts below that the Raja 
respondent was not incompetent to execute the bond in suit. bakhsh 

On the other point the learned counsel for the respondent 
admitted that the case rested entirely on the question whether 
the interest charged in the two bonds was reasonable. The 
Subordinate Judge held that the rate of interest was high in this 
sense, that compound interest was charged. Simple interest at 
Bs.l. 8 per cent, per mensem he thought would not have been 
high. He held that the amended s. 16 of the Indian Contract 
Act did not apply to the case, but on a mistaken view of certain 
English authorities he was of opinion that wherever a transaction 
or contract appears to a Court of Equity to be a " hard bargain " 
it cannot be enforced in its '' entirety ; " and, holding that this 
was a '' hard bargain," he said : '' I do not mean that the present 
is a case of actual fraud or undue influence, but it is certainly a 
case of inequitable dealing." In the result he decreed the claim 
for Rs.10,000 principal and simple interest at 18 per cent, per 
annum. 

In the Court of the Judicial Commissioner it was held that 
there was a presumption that there had been on the part of the 
then plaintiff an unconscientious use of power arising from the 
circumstances and conditions of the contracting parties. In other 
words, the respondent's consent to the transactions was caused by 
undue influence within the meaning of the amended s. 16 of the 
Indian Contract Act, and the transaction was therefore voidable. 
Accordingly the Court gave the plaintiff a decree for Es.4600 
(the principal money under the first bond), with interest at 
6 per cent, a year from February 4, 1889, and Es.l250 (the 
additional advance on the second bond), with interest at the 
same rate from January 13, 1892. 

Auseri Lai himself was advanced in years at the respective 
dates of the two bonds in suit, and states that his nephew 
Madho Ram, one of the present appellants, looked after his 
affairs. Madho Ham's evidence was extremely unsatisfactory. 



Singh. 



126 INDIAN APPEALS [L. R. 

J. c. He professed not to remember what took place when the bonds 

1906 were executed, and not to know what was the Court of Wards or 

DhaSipal wliat the word " Court " meant. This evidence does not assist 

^^^ the appellants' case in any way. The only other evidence con- 

Raja tained in the record is that of the respondent himself. He states 
Maneshab 
Qakhsh that his allowance from the Court of Wards was not sufficient to 

enable him to pay the interest on the bonds, and the only 

property from which he could satisfy his debt was the jewellery 

belonging to the females of his family, the value of which, 

however, he did not know. He further stated that this jewellery 

had been pledged to Auseri Lai some seven or eight years ago, 

though whether before or after the deed of 1892 he could not 

say, and that it had not been redeemed. He stated that no 

fraud or undue influence was practised upon him on taking the 

deed of 1889 or that of 1892, 

The fair result of this evidence is that the respondent, through 
his improvidence, was in urgent need of money, and owing to 
his estate being under the care of the Court of Wards he was in 
a helpless position. There was no fraud in the matter, and no 
pressure was put upon the respondent by Auseri Lai or his 
agents to induce him to accept the conditions offered to him; 
and indeed the fact of the interest being reduced on the second 
transaction from 24 per cent, to 18 per cent, points to some 
negotiations having taken place between them. But it must be 
taken that the respondent was compelled by his circumstances to 
accept the terms which were offered to him both in 1889 and 
1892. 

Their Lordships are of opinion that although the respondent 
was left free to contract debt, yet he was under a peculiar dis- 
ability and placed in a position of helplessness by the fact of his 
estate being under the control of the Court of Wards, and they 
must assume that Auseri Lai, who had known the respondent 
for some fifty years, was aware of it. They are therefore of 
opinion that the position of the parties was such that Auseri Lai 
was "in a position to dominate the will" of the respondent 
within the meaning of the amended s. 16 of the Indian Contract 
Act. It remains to be seen whether Auseri Lai used that 
position to obtain an unfair advantage over the respondent. 



VOL. XXXin.] INDIAN APPEALS. 127 

The Subordinate Judge was wrong in deciding the case in j. a 
accordance with what he supposed to be English equitable 1906 
doctrine. He ought to have considered the terms of the amended dhaSipal 
s. 16 only. He also mistook the English law. Apart from a ^^^ 
recent statute an English Court of Equity could not give relief Raja 
from a transaction or contract merely on the ground that it was bakhbh 
a hard bargain, except perhaps where the extortion is so great ^^l^' 
as to be of itself evidence of fraud, which is not this case. In 
other cases there must be some other equity arising from the 
position of the parties or the particular circumstances of the 
case. But, although he was wrong in the reasons for his 
judgment, the Subordinate Judge may be right in his findings of 
fact. He finds that simple interest at Es.l. 8 per cent, per 
mensem (18 per cent, per annum) would not have been high, 
and their Lordships do not find that the Court of the Judicial 
Commissioner expressed any dissent from this finding. On the 
other hand, their Lordships think that the Subordinate Judge 
must be taken to have found that the charging of compound 
interest in the circumstances was* unconscionable, and they 
understand the Court of the Judicial Commissioner also to have 
so found. Their Lordships are not disposed to differ from a 
concurrent finding of the Courts below, even if it be not strictly 
a finding of fact. The result is that their Lordships must hold 
that the lender used his position to demand and obtain from 
the respondent more onerous terms than were reasonable, and 
the bond sued on must be set aside. Their Lordships, however, 
think that in the particular circumstances of the present case 
justice will be met by allowing the appellants simple interest at 
18 per cent, per annum on the sums advanced by Auseri Lai 
throughout. 

Their Lordships agree with the Court of the Judicial Com- 
missioner that the letters written by the respondent or his agent, 
which were referred to by Mr. Bonnerjee, do not amount to a 
ratification of the transaction. 

Their Lordships will therefore humbly advise His Majesty 
that the decree of the Court of the Judicial Commissioner of 
Oudh, dated June 8, 1902 (except so far as it directs that the 
bond sued on be set aside, and that the costs of the original suit 



128 INDIAN APPEALS. [L. R. 

J. c. be paid by the defendant to the plaintiff), be varied, and as 
1906 varied stand as follows (that is to say), that it be ordered that 
dhan7pal *J^® respondent pay to the appellants the sum of Rs.4500, 
^^ with simple interest at the rate of 18 per cent, a year from 
Raja February 4, 1889, to the date of payment, and the sum of 
Bakhsh Rs.1260, with simple interest at the same rate from 
January 13, 1892, to the date of payment, with proportionate 
costs on the amount decreed to be settled by the Judicial Com- 
missioner in case of difference, and that as to the rest each party 
bear his own costs. There will be no costs of this appeal. 

Solicitors for appellants : Barrow, Rogers d NevUl. 
Solicitors for respondent : T. L. Wilson d Co. 



Singh. 



1906 



JC.* MANOHAR LAL Appellant; 



AND 



^^' JADU NATH SINGH and Others .... Respondents. 

ON APPEAL FROM THE COURT OF THE JUDICIAL 
COMMISSIONER OF OUDH. 

Civil Procedure Code, s, 462 — Compromise on behalf of a Minor in a Suit — 

Practice, 

Civil Procedure Code, s. 462, which prohibits a compromise on behalf 
of a minor by his guardian in a suit without the leave of the Court, is 
not complied with unless it is shewn that leave was formally given after 
the attention of the Court had been directly called by petition or other- 
wise to the fact that the minor was a party thereto. In the absence of 
evidence to that effect the compromise must be declared not binding on 
the minor, who should be remitted to his original rights. 

Appeal from a decree of the Judicial Commissioner of Gudh 
(May 26, 1903), modifying a decree of the Subordinate Judge of 
Fyzabad (June 28, 1901). 

The main question decided in the appeal was as to the validity 
and effect of two decrees made by the Court of the Subordinate 

♦ Present : LoKD Macnaghtbn, Sir Andrew Scoble, Sir Abthue 
Wilson, and Sir Alfred Wills. 



TOL. XXXm.] INDIAN APPEALS. 129 

Judge of Fyzabad on March 12, 1896, giving effect to compromises j. c. 
of even date. 1906 

The circumstances which led to those decrees were shortly as manohab 
follows:— ^^^ 

One Dalthamman Singh was the owner of an estate known as Jadu nath 

Bhandsari, which comprised several villages. On his death he ' " 

left behind him a widow and two illegitimate sons. The widow 
had possession of the estate, and on December 17, 1888, executed 
a deed of gift for consideration of the whole of the estate to five 
donees (one of them being the respondent Jadu Nath Singh, a 
minor). All the donees were descended from the same common 
ancestor as Dalthamman Singh, and represented different branches 
of the family. Each of the donees was placed in possession of his 
share. Jadu Nath Singh was a minor, and lived with his father, 
Surat Singh. 

The two illegitimate sons of Dalthamman Singh claimed to be 
entitled to a reversion of the whole estate subject to the life 
interest of the widow, basing their title on a will alleged to have 
been executed by Dalthamman Singh on February 22, 1876. 
They sold their reversion in one of the villages, namely, Jamnipur, 
to one Inderjit Singh for Rs.4000 by deed executed on October 19, 
1888. This led to a claim to pre-empt advanced by Bishu Nath 
Singh and Mehpal Singh, who were co-sharers in the village. 
After litigation, a decree granting the right claimed was passed 
in their favour on September 22, 1890, conditional on payment 
by them of the sum of Es.8000 on or before December 22, 1890. 
On that date the appellant Manohar Lai lent Bs.6000 to the 
pre-emptors, who executed a mortgage in his favour of the village 
of Jamnipur. The object for which the money was borrowed 
was stated in the deed to be "for the purpose of paying the 
purchase-money of 13 annas 6 pie, odd share in village Jamnipur 
in respect of which a decree for pre-emption has been passed." 

As further security for the repayment of the said sum with 
interest at the rate of 24 per cent, per annum, another mortgage 
of the villages of Bhandsari and Gangapur was executed by all 
the donees of Dalthamman Singh's share. In executing the 
mortgage Surat Singh purported to act as guardian and next 
friend of his minor son. 

Vol. XXXin. K 



130 INDIAN APPEALS. [L. E. 

J. c. On the same day a third mortgage was executed by the same 

1906 donees, Surat Singh again acting for Jadu Nath Singh. A sum 
Manohar ^^ Rs.5000 was advanced at 24 per cent, per annum interest, 

Lal *i Iqj. tj^e purpose of payment to Bishu Nath Singh and Mehpal 
Jadu Nath Singh in satisfaction of their pre-emption decree obtained in 

* respect of 13 annas 6 pie odd share in village Jamnipur and for 

other necessities." The properties mortgaged were the villages 
of Balrampur and Gonwan Makrand. On November 19, 1895, 
Manohar Lal instituted two suits to foreclose the mortgages in 
the Court of the Subordinate Judge of Pyzabad. The first suit 
was based on the mortgage of Jamnipur, Bhandsari and Gan- 
gapur, and the second suit on the mortgage of Balrampur and 
Gonwan Makrand. Both suits were settled by compromises. 
The defendants confessed judgment for the amount claimed and 
costs, and agreed to pay the whole amount with compound 
interest, calculated at the rate of 10 per cent, per annum, by 
instalments, with power to the mortgagee to foreclose on failure 
by the mortgagors to pay any instalment. 

In pursuance of these compromises decrees were made on 
March 12, 1896 ; and on January 28, 1899, on default by the 
mortgagors, decrees absolute for foreclosure were made. 

On March 9, 1899, Jadu Nath, by his mother as next friend, 
sued for a cancellation of the said compromises and decrees, on 
the ground that they were made without the sanction of the 
Court, and under circumstances in which the minor's rights 
ought not to be prejudiced. 

Both Courts held that the compromises, not having been made 
with the sanction of the Court were not binding on the minor, 
nor were the decrees binding which were passed in pursuance 
thereof ; the final decree being that they " be set aside in their 
entirety, the result of which will be that those suits will have to 
be decided afresh." 

W. C. Bonnerjee, for the appellant, contended that the com- 
promises and decrees were binding on the minor. Though no 
formal order of leave was drawn up, yet the Subordinate Judge 
accepted the compromises with the full knowledge that the 
respondent was a party to the suits and to the preceding 



VOL. XXXm.] INDIAN APPEALS. 131 

transactions, all of which had been before him in evidence and that J. C. 
he was a minor. They should accordingly be taken to have been 1906 
made with the leave of the Court within the meaning of s. 462 of manohae 
the Civil Procedure Code ; for such leave was implied in his ^^^ 
acceptance of the compromises as the bases of his decrees. The J^^ nath 

whole decrees ought not to have been set aside. Sect. 544 says 

there must be common ground against all the defendants before 
that can be done. The respondent was only entitled to relief as 
regards his own interest. 

De Gruyther, for the respondent, contended that the com- 
promises and decrees were not binding on him, for that leave had 
been assumed by the guardian rather than judicially granted by 
the Court. He agreed that the result would be that he should 
be remitted to his original rights. 

Bonnerjee replied. ' 

The judgment of their Lordships was delivered by ^^ 

Lord Macnaghten. The Code of Civil Procedure, s. 462, ^^^S- 
provides that : "No next friend or guardian for the suit shall, 
without the leave of the Court, enter into any agreement or com- 
promise on behalf of a minor with reference to the suit in which 
he acts as next friend or guardian." It was argued on behalf of 
the appellant that the exigencies of that provision had been com- 
plied with in this case, inasmuch as it appeared that the minor 
(the first respondent), who was a party to the compromises in 
question, was described in the title of the suit as a minor suing 
" under the guardianship of his mother,'* and the terms of the 
compromises were, of course, before the Court. In the opinion 
of their Lordships that is not sufficient. There ought to be 
evidence that the attention of the Court was directly called to the 
fact that a minor was a party to the compromises, and it ought 
to be shown, by an order on petition, or in some way not open to 
doubt, that the leave of the Court was obtained. This was the 
principal question argued before their tordships, and on it the 
appellant fails. 

The other question had reference to the terms of the decree 
pronounced by the Court of the Judicial Commissioner on the 
minor's appeal to that Court. It appears to their Lordships that 



133 INDIAN APPEALS. [L. E. 

J. c. the terms of that decree are far too wide. The decree orders that 

1906 the compromises and decrees in the foreclosure suit (which were 
Manohar ^^ question in this suit) be set aside " in their entirety," and goes 

^'^^ on to declare that the result would be that those suits would 
Jadu Nath " have to be decided afresh." Their Lordships think (and indeed 

* the learned counsel on both sides agree) that it will be quite 

sufficient if there is a declaration that the compromises and 
decrees are not binding upon the minor, and that he is remitted 
to his original rights. 

Their Lordships will therefore humbly advise His Majesty 
that the decree in the minor's appeal to the Court of the Judicial 
Commissioner should be varied in this respect, but otherwise 
affirmed, and that the decree in the present appellant's appeal 
to that Court should be affirmed. With regard to the costs of 
the appeal, their'Lordships think that the appellant must bear 
them. 

Solicitors for appellant : T. L. Wilson dt Co. 
Solicitors for respondent : Watkins dt Lempriere. 



1906 



J. a* VASUDEVA MODELIAR and Others . . . Defendants; 



AND 



Mayu. SHADAGOPA MODELIAR Plaintiff. 

ON APPEAL FROM THE HIGH OOUET AT MADRAS. 

Practice — Application to Stay Eocecution pending Appeal. 

Where on an application for stay of execution the High Court had 
indicated an opinion that the same ought to be granted, an Order in 
Council to that effect was made on an undertaking by the petitioners to 
file their petition and case within a fortnight from the amval of the 
record, with leave to the respondent to apply to the High Court for the 
appointment of a receiver, or for payment into Court, or other relief. 

This was a petition by the appellants, who were defendants in 
the action, for an Order in Council staying proceedings in execu- 
tion of a decree of the High Court dated March 13, 1905, pending 

♦ Present : The Earl of Halsbury, Lord Macnaghten, Sir Arthur 
Wilson, and Sir Alfred Wills. 



VOL. XXXm.] INDIAN APPEALS. 188 

the disposal of their appeal, subject to fitting terms and j. c. 
conditions. 1906 

The petition stated that the said decree directed a sale of certain y^^^y^. 
hypothecated properties in default of payment of a sum of money ^o^kliar 
ascertained to be due to the respondent under the hypothecation 'Shadagopa 
bond in suit, and that an appeal therefrom had been admitted by — 
the High Court. It then alleged an order on February 23, 1906, 
made on their application to stay execution pending the appeal, 
to the effect that execution be stayed for three months, so as to 
give the petitioners an opportunity to apply to the Privy Council 
in that behalf. 

De Oruyther, for the petitioners. 
Kenworthy Brovm, for the respondent. 

The judgment of their Lordships was delivered by 1906 

Lord Magnaohten. Their Lordships desire to repeat what May 17. 
has been often stated by this Board before, namely, that appU- 
cations of this sort ought always to be made, in the first instance 
at any rate, to the Court in India, which has ample power to deal 
with the matter according to the circumstances of the particular 
case, and has knowledge of details which this Board cannot 
possess on an interlocutory application. In the present case 
their Lordships know no more than what is brought before 
them by affidavits not altogether satisfactory. There is, how- 
ever, an indication in the judgment of the High Court shewing 
that in their opinion an extension of the stay of proceedings ought 
to be granted. Acting upon that suggestion their Lordships will 
humbly advise His Majesty to grant a stay of proceedings on the 
appellants giving an undertaking by their counsel to lodge the 
petition of appeal and their case within a fortnight from the time 
the record arrives in England, and also at the same time to give 
the respondent leave to apply to the High Court at Madras 
either for the appointment of a receiver, or for payment of a 
reasonable amount into Court, or any other relief which he 
may be advised to apply for. The appellants must pay the costs 
of this application in any event. 

Solicitor for petitioners : Douglas Grant 

Solicitors for respondent : Lawfm-d, Waterhouse dk Co. 

Vol, XXXTIL L 



184 INDIAN APPEALS. [L. E. 



J.c* LALITESWAE SINGH Defendant; 

1906 XSD 

fZi5', MOHUNT GANESH das Plaintiff. 

Jtme 19 
ON APPEAL FEOM THE HIGH OOUET IN BENGAL. 

Bengal Act VIL of 1880, as. 12, 16, 17, 24— Bengal Act IX. of 1880, «. 16— Sale 
in Execution of a Certificate — Certificate and Sale set aside by the Revenue 
Authorities — Suit by Purchaser — Jurisdiction — Limitation. 

Where a sale was made under Bengal Act Vn. of 1880 of the respon- 
dent's estate in execution of a certificate granted by a deputy collector 
in respect of a fine imposed on the respondent for non-compliance with 
a notice imder s. 16 of the Cess Act (Bengal Act IX. of 1880), and the 
appellant was put in possession as purchaser, it appeared that the Board 
of Bevenue subsequently to the sale decided that the fine was unjust 
and set aside the certificate, and that thereafter the Commissioner 
annulled the sale. 

In a suit by the respondent against the appellant to set aside the sale 
and recover possession : — 

Held — (1.) theEevenue authorities had jurisdiction to make the orders 
setting aside the certificate and annulling the sale, their power of super- 
vision in that respect under Act YII. of 1880 (see ss. 17 and 24) being of 
the widest possible character ; 

(2.) The period of limitation prescribed byss. 12 and 16 is inapplicable 
to the exercise of re visional jurisdiction ; 

(3.) The proper remedy for the purchaser, if aggrieved by the orders of 
the Bevenue authorities having been made in his absence, was to apply 
for rehearing, and it was too late to apply for a remand on that ground. 

Appeal from a decree of the High Court (March 30, 1898), 
affirming a decree of the Second Subordinate Judge of Tirhoot 
(April 5, 1896). 

The suit was brought under the circumstances detailed in their 
Lordships' judgment praying that the sale in question be set 
aside as "illegal, irregular, fraudulent and ultra vires." The 
relief sought was recovery of possession with mesne profits. The 
sale was made under Bengal Act VII. of 1880, which has since 
been superseded by Act I. of 1895. 

The Subordinate Judge was of opinion that both the Com- 
missioner and the Board of Bevenue in exercise of their powers 

* Present: LoBD Davby, Sib Awdbew Scoblb, and Sir Arthxjk 
Wilson. 



VOL. XXXm.] INDIAN APPEALS. 185 

of revision had jurisdiction to cancel the certificate and to set j. c. 
aside the sale ; and if they had rightly exercised the jurisdiction 1906 
vested in them in passing those orders such orders were binding lalitmwab 
upon the parties, and he held that by those ordeJrs the appellant's Singh 
right to the property purchased by him was entirely extinguished. Mohunt 

The High Court, in affirming this decision, said : " The law das. 
allows the Civil Court to reverse a sale under certain circum- 
stances ; but there is nothing in the law authorizing a Civil Court 
to reverse the order of a Bevenue Court which sets aside a sale. 
We cannot question its decision on a question of limitation any 
more than it would be possible for us in a suit to determine that 
a decree made in another suit was barred by limitation, and that 
the decree was therefore without jurisdiction. If authority were 
required for this last proposition, we would refer to the decision 
of a division bench of this Court reported in I. L. E. 2 Calc, 
p. 289. The well-known case of Mungul Pershad Dichit v. Grija 
Kant Lahiri Chowdhry (1) also supports the proposition that an 
erroneous decision on a question of limitation cannot be treated 
as invalid unless it be set aside in a way provided by law. 

" A similar reasoning would prevent our entertaining any objec- 
tion to the Commissioner's order on the ground that he had not 
heard the purchaser. If the purchaser was aggrieved on this 
account, there is no doubt that he could have found an appro- 
priate remedy in the procedure of the Eevenue Courts ; but 
whether that be so or not, we cannot treat as invalid an order 
made by the tribunal to which the Legislature has entrusted the 
power of making such order. We have no power to enquire into 
the circumstances under which the order was made, or into the 
propriety of the order." 

Cohen, K.C., and C. W. Arathoon, for the appellant, contended 
that the Eevenue Court had acted without jurisdiction in 
annulling the sale. They had moreover acted improperly, for 
there had been no proper adjudication on the allegation of 
fraud and collusion, and the matter had been decided after the 
appeal was barred by limitation and in the appellant's absence 
and without proper notice to him. The Courts below had based 

(1) (1881) L. E. 8 Ind, Ap. 123. 

L 2 



186 INDIAN APPEALS. [L. E. 

J. c. their decisions entirely on those of the Revenue Courts, and had 

1906 not investigated the questions at issue. Reference was made ^to 

Laliteswab ^®- ^^» ^'^ ^^^ ^ ^* -^^* ^^' ^^ ^^^^ ' Nil'^^^i Bumick v. PvMo 

Singh Ztochan Chuckerbutty (1) ; Sadhusaran Singh v. Panchdeo Lai. (2) 

MoHUNT De Oruyther for the respondent, was not heard. 
Ganbsh 



Das. 

1906 
Jwie 19. 



The judgment of their Lordships was delivered by 

Snt Andrbw Scoblb. In this case special leave to appeal was 
granted on the ground that substantial questions of law arose 
upon the decisions of the Courts in India, which had given con- 
current judgments in favour of the original respondent, the 
plaintiff in the suit. 

The suit was brought by the plaintiff to set aside the sale of a 
village called Subhankarpore, stated to be worth a lakh of 
rupees, the property of the plaintiff, which had been put up to 
auction under the provisions of Bengal Act VII. of 1880 — the 
Public Demands' Recovery Act — and purchased for Rs.llOO by 
Maharaj Ganeswar Singh, whose estate is represented by the 
present appellant. The sale was made in execution of a 
certificate granted by a Deputy Collector in respect of a fine 
imposed on the plaintiff for failure to comply with a notice 
issued under s. 16 of Bengal Act IX. of 1880 — the Cess Act. 

The sale took place on September 19, 1898, and the purchaser 
was put in possession of the village on December 6 following. 
On January 2, 1894, the plaintiff presented a petition to the 
Commissioner of the division, alleging that he had no knowledge 
of the proceedings which had led to the sale, and that they 
ought to be set aside and the sale cancelled as irregular, 
fraudulent, and collusive. The Commissioner, after hearing 
the vakils for both parties, by his order of December 12, 1894, 
admitted the appeal, on the ground that the evidence for the 
petitioner made out " a prima facie case of fraud, or at any rate 
of irregularities, which prevented the petitioner from obtaining 
knowledge of the proceedings against him, and caused the sale 
of his estate at a most inadequate price " ; and he referred it to 
the Collector ''to reply specifically to the allegations of the 

(1) (1866) Beng. L. B, supp. vol (2) (1886) I. L. E. 14 Cslc. 1, 9. 

F. B. 379. 



VOL. XXXHX] INDIAN APPEALa 187 

petition." No report was apparently made by the Collector, j. c. 
probably because the purchaser, in his turn, appealed to the 1906 
Board of Eevenue against the Commissioner's order, with the lalitbswab 
result that the Board, by an Order of May 9, 1895, decided that ^^^^^ 
the fine was unjust, and had ** no hesitation in setting aside the Mohunt 
certificate for its recovery." On February 4, 1896, the Com- das. 
missioner passed a formal order annulling the sale, on the 
ground that '4t was brought about fraudulently and without 
legal justification.*' 

Upon these proceedings before the Bevenue authorities being 
put in evidence before the Subordinate Judge of Tirhoot, in 
whose Court the suit was pending, he passed a decree in favour 
of the plaintiff on the ground that, the certificate and sale having 
been set aside by a competent tribunal, the purchaser's claim to 
the property could not be maintained. This decree was confirmed 
on appeal by the High Court at Calcutta. 

The questions argued before their Lordships were three in 
number : First, that the Bevenue authorities had no jurisdiction 
to make the orders on which the decree of the Civil Court was 
based ; secondly, that the appeal to the Commissioner was barred 
by limitation ; and thirdly, that the defendant was not allowed to 
adduce full evidence in support of his case. 

Upon the first question their Lordships entertain no doubt. 
In the case of Sadhusaran Singh v. Panchdeo Lal(l) the 
High Court of Calcutta has held that Bengal Act VII. of 
1880 applies to cases of road and other cesses ; and, that being 
so, it is necessary to look to that Act in order to ascertain 
the extent of the jurisdiction conferred upon the higher 
Revenue authorities over the proceedings of their subordinate 
officers. This appears to be of the widest possible character. 
Sect. 17 provides that " the Commissioner may in any case in 
which he thinks fit, revise any order passed by a Collector, or 
Deputy Collector, or Assistant-Commissioner, or Extra Assistant- 
Commissioner." In the opinion of their Lordships this applies 
to orders made after as well as before sales in execution of 
certificates issued under the Act. And s. 24 enacts that " all 
Collectors, Deputy Collectors, Assistant-Commissioners, and 
(1) L L, B, 14 Oalc. 1, 9. 



188 INDIAN APPEALS. [L. E. 

J. c. Extra Assistani-Gommissioners shall, in the performance of their 

1906 duties under this Act, be subject to the general supervision and 
Lalitbswab c^^*^^^ of the Commissioners of Divisions and the Board of 

Singh Eevenue." These extensive powers were no doubt given to 
MoHUNT prevent any abuse of authority under the extremely stringent 

Das. aiid summary procedure authorized by the Act, and are, in their 
Lordships* opinion, amply sufficient to justify the orders of 
which complaint is now made. 

Upon the second question, it is quite true that under s. 12 
of the Act a person who denies his liability to pay the 
amount for which a certificate has been made and filed against 
him is allowed thirty days within which he may petition the 
Collector to set aside the certificate either in whole or in part ; 
that thereupon the Collector must proceed to determine the 
liability of the petitioner; and that under s. 16 an appeal 
from the Collector's order may be preferred within thirty 
days from the making of the order. But this was not the 
procedure under which the order now complained of was made. 
The Commissioner acted in the exercise of his revisional 
jurisdiction under s. 17; and it would defeat the object of 
the Legislature if the periods of limitation applicable in ordinary 
cases were held binding upon him when so acting. 

The third point was that the defendant was not permitted to 
bring forward full evidence in support of his case. Their 
Lordships entirely agree with the learned judges of the High 
Court that it is " an elementary principle which is binding on all 
persons who exercise judicial or quasi- judicial powers, that an 
order should not be made against a man's interest without there 
being given to him an opportunity of being heard." In his 
order of February 4, 1896, annulling the sale, the Commis- 
sioner says ** it is quite unnecessary to hear the purchaser before 
disposing of this petition," the ground of his decision being that 
the effect of the order of the Board of Bevenue cancelling the 
certificate was to render the sale null and void ; and that, there 
being " no question as to the illegality of the sale," the formal 
order which he was asked to make followed as a matter of 
course. This is not a sufficient reason, though it may be doubted 
whether the purchaser was prejudiced by the irregularity. But, 



Vol. itixm.] . iNDiAlt appeals. i§§ 

however this may be, it seems to their Lordships that the proper J. a 

remedy of the purchaser, if aggrieved by this order having been i906 
made in his absence, was to apply to the Eevenue authorities for lalitbswae 

a rehearing, and that it is now too late to ask for a remand on ^^^^ 

that ground, Mohunt 

Their Lordships will humbly advise His Majesty that this das. 
appeal ought to be dismissed, and the decree of the High Court, 
dated March 80, 1898, confirmed. The appellant must pay the 
respondent's costs of the appeal. 

Solicitors for appellant : Oill, Ptigh d Davey. 
Solicitors for respondent : Watkins A Lempriere* 



EAMANATHAN CHETTI Defendant; JO* 



AND 



1906 



MUEUGAPPA CHETTI Plaintiff* ^^ri^^i, 

ON APPEAL FROM THE HIGH COTJBT AT MADEAS, 

Management of Hindu Temple — Turns of Management — Family Arrangemeni 
■^Scheme proved hy unbroken Usage for Nineteen YearSi 

The office of manager of a Hindu temple was Tested by inheritance 
in eight male descendants of the last holder by his two wiyes» four by 
each. One member of each branch held office for one year in alternate 
succession till 1681-2, when the four members of the junior branch, 
including the appellant, telinquished their claim in favour of the 
Respondent, a member of the senior branch. 

In a suit by the respondent against the appellant in effect to assett 
his term of office under this family arrangement : — 

Held, that an unbroken usage for nineteen years was, as against the 
appellant, conclusive evidence thereof i The parties were competent to 
make it, for it involved no breach of trust; and it must hold good until 
altered by the Court or superseded by a new arrangements 

Appeal from a decree of the High Court (August, 1% 1608), 
affirming a decree of the Subordinate Judge of Madura (East)» 

The question decided relates to the management of cettain 
endowed property consisting of a temple and lands assigned for the 
support of its services. On the death of the last holder the 

* Present: LoBD Magnaghtbk, Sir A2a)BBW Sooble, Sm Arihub 
WiLSOW, and Sni Alfkbd Wills. 



140 iNDIAN ApI^EALS. \L. 6. 

• J. c managemiBnt of the temple and the endowed property devolved 
1906 by inheritance on his male issue, consisting of eight sons, four by 
Eamana- ^^^^ ^* ^^^ *^o wives. A son of each wife managed in alternate 
Chbtti y®^^^ ^^^ 1880, when it was agreed by all the sons that the four 
V. by the second wife, including the appellant, should cede their 
Chetti. turns to the respondent, a son by the elder wife, who thereupon 
became entitled to five years of management, and the remaining 
three members of the senior branch to one year each. At the 
end of the appellant's year of management disputes and differ- 
ences arose between him and the respondent; and thereupon 
the suit was brought to recover possession of the disputed villages 
with mesne profits, and of certain jewellery and books of account. 
The defence did not deny the course of management alleged ; 
it was, however, urged that the agreement by which this course 
' had been adopted was revocable. It was denied that the issue of 
the second wife had, in fact, transferred or delegated their right 
.to manage to the respondent; and it was pleaded that such 
transfer or delegation, if proved in fact, was invalid in law. 
It was also denied that the respondent was entitled for any 
term to exclusive possession ; that the appellant was in possession 
of all the accounts claimed, and that the mesne profits were as 
great as alleged in the plaint. 

The Subordinate Judge found that the evidence proved a course 
of management as alleged in the plaint, and that this arrange- 
tnent was not revocable at will. He found that the appellant 
had delivered possession to the respondent of the temple, villages, 
and the temple properties, other than the jewellery, at the end of 
his term in July, 1899; and that the appellant subsequently 
unlawfully obtained possession of the villages, and carried off the 
accounts belonging to the temple. He was of opinion that the 
scheme had been altered by the delegation in fact to the know- 
ledge of the appellant of their rights to manage by the members 
of the junior branch in favour of the respondent, and that the 
altered scheme was binding on the appellant, and had ever since 
been acquiesced in by the appellant and all parties. He con- 
sidered that the claims of the junior branch were barred by 
limitation in consequence of the adverse exercise of the rights to 
manage as against them for a period exceeding twelve years 



Vol. xxxijtt.] iNDlAi^ Appeals. I4i 

prior to suit. In accordance with these finding^ he made a j. o. 
decree directing the delivery of possession of the villages in 1906 
dispute, of the movable property, and of the books of account b^amZsa- 
claimed, and also the payment of the mesne profits. than 

In appeal the High Court affirmed the finding of fact that the «. 

scheme of management was settled as stated in the plaint, and chetti. 
also the finding that the said scheme was not revocable. It also 
held that the claims of the junior branch were barred by limita- 
tion. On the question of delegation of their rights, it was found 
as a fact that such delegation had been made and acted on for a 
long series of years. There was evidence of a document having 
been drawn up evidencing the delegation. This document was 
lost, and was admittedly not stamped at the time of execution. 
The High Court decided that in the absence of the document no 
other evidence could be admitted of its contents, but was 
opinion that a course of action extending over a long term of 
years in which the appellant had acquiesced sufficiently proved 
the alteration alleged by the respondent in the original scheme 
of management. 

Cohm^ K.C., and W. G. Bonnerjee, for the appellant, contended 
that the High Court was wrong in holding that the members of 
the junior branch of the family had lost their right to their turns 
of management by the operation of the law of limitation. On the 
case set up by the respondent, his exercise of their right was not 
adverse to them. Reference was made to Act XV. of 1877, s. 28, 
and Sched. II., art. 124. The Court, moreover, found that the 
respondent managed during his tenure of office, not for himself 
alone, but on behalf of all the members of the senior branch 
with their consent. He did not, therefore, acquire any adverse 
right against them, and they could withdraw, each for himself, the 
assent which he had given. There had been no completed transfer 
of rights, and the arrangement come to amongst themselves was 
revocable. A trustee cannot substitute another person for him- 
self as trustee, and if he purports to do so the arrangement 
between them is not binding, and the appellant was at any time 
entitled to object to it. Eights to management did not, either by 
operation of the law of limitation or by actual transfer, vest in 



142 INBlAlf APtBALS. [t. fi. 

J. C. the respondent alone to the exclusion of the other members of 

1906 the family or any of them. The turns by which the trustees held 

Ramana- the management were liable to alteration at the will of any one of 

Cmtti *^®^^ number, and were not absolutely and permanently binding 

TLr^« ^« . .0^ them. There was no emolument attached to the trust, and 

MnRUGAPPA ' 

Ohbtti. therefore a Civil Court was not competent to declare that the 
trustees should in rotation enjoy rights of management for a 
definite period : see Sri Baman Lalji Maharaj v. Sn Gopal Lalji 
Maharaj. (1) 

Sir R. Finlay, K.C., and De Gruyther, for the respondent, con- 
tended that the respondent had validly acquired the right to 
manage as vested in the junior branch. Although Hindu text 
writers treat offices of the kind in question in this suit as 
indivisible, yet modern custom and decided cases sanction their 
partition by means of the coparceners enjoying their office 
separately in rotation. The two branches of the family 
had assented, as they were entitled under the Hindu law to 
do, to a scheme of management as detailed in the plaint and 
concurrently found by the Courts. That arrangement was 
validly made, and the scheme so assented to was not revocable at 
the will of the appellant, and could only be altered as the original 
scheme of management was altered, by the will of all the 
members agreeing thereto, or by the Court in a suit or other 
proceeding properly framed for that purpose. Along-established 
practice under that agreement fully proves it and entitles the 
respondent to act as the delegate of the junior members. Eefer^ 
ence was made to Mancharam v. Pranshankar (2) ; Mayne's 
H. L. ss. 489, 468 (6th ed. pp. 568 and 612) ; Oossamee Sree 
Greedhaireejee v. Rumanlolljee Goasamee (8) ; Maharaja Jagadindra 
Nath Roy v. Hemanta Kumari Debi. (4) 

Cohen, K.C., replied, citing Trimbak v. Lakshinan. (5) 

1906 The judgment of their Lordships was delivered by 

^^y ^^' Lord Maonaghtbn. In the village of Kottoor, in the Zemin- 
dari of Sivagunga, there is a Hindu temple dedicated to the 

(1) (1897) I. L. E. 19 AUah. 428. (3) (1889) L. E. 16 Ind. Ap. 137. 

(2) (1882) I. L. E. % Bomb. 298. (4) (1904) L. E. 31Ind. Ap. 203, 208. 

(5) (1896) L L. E. 20 Bomb. 495, 601. 



VOL. XXXni.] INDIAN APPEALS, 148 

public worship of the deity in whose honour it was founded, and J. o. 
endowed with the revenue of three villages. The o£Sce of manager 1906 
of this temple is hereditary in a family of which the appellant bahava- 
and respondent are both members, but the family has no q^^j 
beneficial interest in the property or in the income of the temple. ^^ 

The office of manager was formerly vested m one Mayandi ghbtti. 
Ghetti, who was grandfather of the respondent and great-grand- 
father of the appellant. On Mayandi's death the office devolved 
by inheritance on his male descendants by his two wives. There 
were four by each wife, or eight in all. One member of each 
branch took the management for one year in alternate succession 
until the year 1881-1882. About that time the members of the 
junior branch renounced or relinquished their claim to the 
office in favour of the respondent, who is a member of the senior 
branch. Duriag the nineteen years immediately preceding the 
institution of this suit, in each cycle of eight years, there has 
been a settled order of succession among the members of the 
senior branch. The respondent has had five turns, and the 
appellant and the other two representatives of the senior branch 
one turn each. 

In accordance with this arrangement the appellant held the 
office of manager of the temple, and the property belonging to it, 
from 1st Adi of the year Vilambi (July 15, 1898) to 80th Ani of 
the year Vikari (July 18, 1899). On the expiration of that year 
it was the respondent's turn to hold office for the next three 
years — one year in his original right and two years in right of 
the junior branch. The appellant handed over the temple to the 
respondent, but he kept back the jewels and retained or retook 
possession of the three villages with which the temple is endowed. 

The respondent then brought this suit to recover the jewels and 
the villages, with mesne profits. The appellant did not dispute 
the facts alleged by the respondent, but he set up various 
defences on points of law. Both the Subordinate Judge and the 
High Court decided against him. 

In their Lordships' opinion the case is a very simple one. They 
think the unbroken usage for a period of nineteen years is as 
against the appellant conclusive evidence of a family arrange- 
ment to which the Court is bound to give effect. Twice during 



144 INDIAN APPEALS. [L.B. 

J. c. the period of nineteen years the appellant has, in his proper 

1906 turn, enjoyed the position of manager for a year. The arrange- 

BamTka- iiient seems to have been a perfectly proper arrangement con^ 

Cottti ducing to the due and orderly execution of theofiBce. It was one 

,, ^- which the Court would no doubt have sanctioned if its authority 

Chktti. had been invoked. It was one which, in their Lordships' opinion, 

the parties interested were competent to make without applying 

to the Court. If the appellant wishes to set it aside and to have 

a new scheme settled, he must take proper proceedings. If he 

has any ground for attacking the management of the temple or 

the administration of the property attached to it, the Courts are 

open. But it is not for him, at his will and pleasure, to disturb 

an arrangement of which he has on more than one occasion taken 

the benefit. It is plain that the arrangement was not intended 

to be merely temporary, nor can it be regarded as precarious. It 

must hold good until altered by the Court or superseded by a new 

scheme effected with the concurrence of all parties interested. 

The argument on behalf of the appellant seems to have been 
founded on a mistaken analogy. The manager of the temple 
is by virtue of his office the administrator of the property 
attached to it. As regards the property, the manager is in the 
position of a trustee. But as regards the service of the temple 
and the duties that appertain to it, he is rather in the position 
of the holder of an office or dignity which may have been^ 
originally conferred on a single individual, but which, in course 
of time, has become vested by descent in more than one person. 
In such a case, in order to avoid confusion or an unseemly 
scramble, it is not unusual, and it is certainly not improper, for 
the parties interested to arrange among themselves for the due 
execution of the functions belonging to the office in turn or in 
some settled order and sequence. There is no breach of trust 
in such an arrangement, nor any improper delegation of the 
duties of a trustee. 

The members of the junior branch are not before the Court. 
Their rights, if they have any, are not affected by this suit. 
The appellant cannot be allowed to put himself forward as their 
champion to disturb an arrangement with which they seem to be 
quite content. 



VOL. XXXin.] INDIAN APPEALS. 145 

Their Lordships will humbly advise His Majesty that the j. c. 
appeal must be dismissed. The appellant will pay the costs of 1906 
the appeal. ramIna- 

THAN 

Ohettt 

Solicitors for appellant : Sanderson, Adkin, Lee d Eddis. v. 

Solicitor for respondent : Douglas Grant. ^Chetti.^^ 



J. C* 

KANNEPALLI SUEYANAEAYANA and } ^ 1906 

^ I Plaintiffs; -v* 

Others ) ifoyi,2, 3; 



AND 

PUCHA VENKATA EAMANA and Others . Defendants. 

ON APPEAL FEOM THE HIGH COXJET AT MADRAS. 
Hindu Law — Power to adopt — Construction — Power to adopt Succesaive Sons, 

Where a Hindu has granted to his widow a power to adopt and has 
placed no specific limitation thereto, and it is clear that he desired to be 
represented by a son after death in order to secure spiritual benefit to 
himself and to continue his line : — 

Held, that the widow's authority to adopt is not exhausted by a first 
adoption, but that, on the death of the first adopted son, the adoption of 
a second is a valid exercise of the power. 

Appeal from a decree of the High Court at Madras (March 18, 
1903), aflBrming a decree of the District Court of Ganjam 
(September 22, 1900). 

The question decided in the appeal is whether the adoption of 
the first respondent by the second respondent as a son to her 
husband Kannepalli Yenkata Narasu, deceased, was a lawful and 
valid adoption. 

The adoption in suit was made on June 10, 1898, by Venkata 
Batnamma of Pucha Yenkata Bamana. On that date Yenkata 
Ratnamma executed a deed of adoption, and also a deed by which 
she transferred the major portion of her husband's estate to the 
adopted son, retaining the remainder in her own possession for 

* Present : LoBD Magnaghten, Sib i Ain>ssw Scoblb, Sis Abthus 
Wilson, and Sib Ai*fbbd Wills, 



lay 
Ju 



'uTie 21. 



146 



INDIAN APPEALS. 



[L. E. 



J. C. 

1906 

EAmfE- 

PALLI 

SUBYANA- 

KAYAKA 

V. 
PUOHA 

Vbnkata 
Bamana. 



life. The suit was instituted on October 7, 1899, under the 
circumstances stated in the judgment of their Lordships, by 
members of the family interested to obtain a declaration as to 
its invalidity. The defendants were Yenkata Ratnamma and 
the adopted son. The validity of the adoption was challenged 
on the grounds (inter aha) that it was made without the authority 
of Yenkata Narasu, the husband of the second respondent, and 
that the assent of two remote collaterals did not avail to supply 
that omission. 

' The respondents contended that the second respondent had 
full power and authority from her husband to adopt the first 
respondent, and relied thereon, and also on the said assent. 

The High Court had ''no hesitation in agreeing with the 
District Judge in finding that the second defendant's husband 
did authorize his wife to adopt to him." They continued : 
"The authority, as proved by the witnesses, was in general 
terms requiring her to adopt so as to continue his line and to 
provide for his spiritual benefit. He did not indicate any 
particular person for adoption either by name or otherwise, and 
placed no restrictions whatever on his wife's discretion. 

" Such being the case, the question is whether the authority 
so given was exhausted by the first adoption, or whether, on the 
death of the son then adopted, the authority of the husband survived 
so as to enable the widow to make the present — that is, a second 
adoption. We are not aware of any judicial decision which 
would bind us to hold that the husband's authority, in circum- 
stances like the present, is so completely worked out by the first 
adoption as to prevent the widow from acting upon it when 
necessity arises for a fresh adoption, the estate being still vested 
in h«r, and being liable to be divested by such adoption. We 
are of opinion that the husband's authority held good for the 
second adoption also. The object and purpose of the authority 
given by the husband was to perpetuate his family as well as to 
secure his spiritual benefit, and it would be unreasonable to 
hold that an accident such as the early death of the boy first 
adopted should be allowed to frustrate the fulfilment of his 
object and to preclude the widow from making another adoption in 
the absence of any legal impediment to her doing so. When the 



VOL. xxxm.] 



DSTDIAN APPEALS. 



147 



general intention of a Hindu to be represented by an adopted 
son is clear, as in this case, there seems no reason why effect 
should not be given to such intention, if it is possible to do so 
without contravening the law. Each case must be decided on its 
own merits, without applying too strict a rule of construction in 
regard to powers of this description. 

" We are supported in our view by the decision of Sir Thomas 
Strange in VeerapettncM PiUai v. Narrain PiKai(l), where a 
widow was heM entitled to adopt a boy in furtherance of her 
husband's general intention in lieu of another indicated by him, 
but who was not available : the same principle has been adopted 
by the Bombay High Court in Lakshmibai v. Rajaji{2)f where 
the boy who was indicated for adoption not being available, the 
adoption of another was upheld. 

'' It would appear from the note 8 at p. 14 of Morley's Digest 
that ' instances have occurred in which a widow has made a 
second adoption on the failure of the first by death in fulfilment 
of a single injunction or authority from her husband, the object 
of such injunction being unattained unless the child Uve.' 
Another instance of the husband's general intention being acted 
on by the widow without disapproval, even where the husband 
did not directly give authority for the adoption, is to be found 
in Bamasawmi Aiyan v. Vencataramaiyan from this Presidency 
reported in L. B. 6 Ind. Ap., p. 196. So that the practice of the 
community has been in accordance with our view of the law." 
In this view of the case it became unnecessary for the learned 
judges to decide whether the assent of the sapindas validated 
the adoption or not. They nevertheless thought that the assent 
was given in terms too general and at a time too remote to be 
of any use. 



J. C. 

1906 

Eanne- 

PALLI 

SUBYAKA- 

RATANA 

V. 

PUCHA 

VXNKATA 

BAMANA. 



De Gt-uyther, for the appellants, contended that on the 
evidence there was no sufficient proof of Venkata Narasu ever 
having given to his wife any authority to adopt. Assuming 
that an authority to adopt was given in the terms deposed to by 
the witnesses, it was not sufficient to authorize the adoption 
in suit. It was general in terms to adopt a son. That power 

(1) (1891) l.Str. 91. (2) (1897) I. L. E. 22 Bomb. 996. 



148 



INDIAN APPEALS. 



tL.B. 



J. 0. 

1906 

Eanke- 

PALLI 

SUBYANA- 

BATANA 

V, 
PUOHA 

Venkata- 
Bamana. 



was exhausted as soon as an adoption had been made under it. 
It did not extend to authorize a second adoption after the death 
of the adopted son. That was a contingency not contemplated 
by the grantor, and the power to make a second adoption could 
not arise by implication. A power to adopt must be strictly 
followed. A second adoption had no religious motive, fol: the 
salvation of the ancestor, which was the religious motive for 
adoption, was secured by the adoption of the first son, even if 
his death followed very soon afterwards, as in this case. Refer- 
ence was made to Collector of Madura v. Moottoo Ramalinga 
Sethupathy (1) ; Mutsaddi Lai v. Kundan Lai (2) ; Amrito LalDuU 
V. Surnomoye Dasi (8) ; Surendra Keshav Roy v. Doorgamndari 
Daaaee (4) ; Chowdhry Pudum Singh v. Koer Oodey Singh (5) ; 
Teeloke Chundwr Raee v. Gyanchunder Raee (6) ; Gowmath 
Chowdhree v. Amopooma Chowdhrain (7J ; Mohendrolall Moo- 
ketjee v. Rookiney Dabee (8) ; Purmanund Bhuttacharuj v. 
Oomakant Lahoree (9) ; Amirthayyan v. Ketharamayyan (10) ; Sri 
BaluBu Gurvlingaswami v. Ramalakshmamma (11) ; 1 Strangers 
Hindu Law, 78, 79 ; Mayne's Hindu Law, 6th ed. par. 114, 
p. 148 ; Lakshmibai v. Rajaji (12) ; Shamchunder v. l^arayni 
Dibeh (18) ; 1 Morley's Digest, p. 14, note 8 ; Narayanasami 
V. Kuppusami (14) ; Ramasawmi v. Venkataramaiyan (15) ; 
Sreemutty Dossee v. Tarrachum Koondoo (16) ; Paraaara Bhattar 
V. Rangaraja Bhattar. (17) 

It was next contended that the assent to the second adoption 
given by the two sapindas, who were remote collateral relations 
of the husband, did not validate the adoption in suit. It was not 
shewn that any discretion had been exercised in giving permis- 
sion to adopt. The terms of the assent were very general, and it 

(10) (1890) I. L. E. 14 Madr. 65. 



(1) (1868) 12 Moo. Ind. Ap. 397, 
433. 

(2) (1906) L. E. 33 Ind. Ap, 66. 

(3) (1900) L. E. 27 Ind. Ap. 128. 

(4) (1892) L. E. 19 Ind. Ap. 108. 
(6) (1869) 12 Moo. Ind. Ap. 360. 

(6) (1847) S. D. A Beng. 554. 

(7) (1852) S. D. A. Beng. 332. 

(8) (1864) Ooryton's Eep. 42. 

(9) (1828) 4 SeL Eep. 318. 



(11) (1899) L. E. 26 Ind. Ap. 113, 
142. 

(12) I. L. E. 22 Bomb. 996. 

(13) (1807) 1 S. D. A. Beng. 209. 

(14) (1887) I. L. E. 11 Madr. 43. 
(16) (1879) L. R 6 Ind. Ap. 196, 

202. 

(16) (1865) Bourke's Eep. A. 0. C. 
48, 55. 



(17) 1880) L L. E. 2 Madr. 202. 



VOL. xxxm.] 



INDIAN APPEALS. 



149 



was not shewn to have been acted on within a reasonable time 
after it had been given : see West and Buhler, H.L. p. 967 ; 
Collector of Madura v. Moottoo Ramalinga Seihupathy (1) ; Sri 
Raghunada v. Sri Brozo Kishoro (2) ; Ryah VeUanki Venkata 
Krishna Row v. Venkata Ramalakahmi Narsayya (8) ; Karunabdhi 
Oanesa Ratnamaiyar v. Gopala Ratnamaiyar. (4) 

W. C. Bonnerjee, for the respondents, contended that the 
power of adoption given in this case was effectual to validate the 
adoption in suit. It was a question of the nature and extent of 
the power given in this particular case. There was no necessity 
to refer to other cases. Each case must be decided on its own 
circumstances. There was nothing in the authority given by 
Venkata Narasu to confine the power of adoption within the 
limits of a single exercise, or to necessitate the construction that 
by one adoption the power was exhausted. As long as a 
previously adopted son was dead, the power existed to make a 
fresh adoption. In the case cited on the other side from (1852) 
S. D. A. the direction was confined to adopting one son, and the 
power BO given ifiust be restricted according to its terms. 
Here the terms were general, and there was no authority or 
reason for restricting them. Beference was made to the synopsis 
in Stokes' Hindu Law Books; Golapchandra Sarkar's Tagore 
Lectures, 284 ; Surendra Nandan v. Saiiaja Kant Das Maha- 
patra{S); Lakshmibai v. RajajUfi)^ which was a case governed 
by the Mitakshara, and not the Mayukha. The District Judge 
was right in deciding that the assent of. the three sapindas 
was sufficient to validate the adoption, even if it were not 
strictly or at all within the power given by the husband. 
There was no law that only the immediate reversioners could 
give the required assent of the sapindas. It was contended 
that the adoption in suit was in all respects legal, valid, and 
effectual. 

Be Oruyther replied. 



J. 0. 

1906 
Eaitne- 

PALLI 

SUBTANA- 

BATANA 

V. 
PUCHA 

Vbnkata 
Bamana. 



(1) 12 Moo. Ind. Ap. 397, 441. (4) (1880) L. E. 7 Ind. Ap. 173, 

(2) (1876) L. E. 3 lad. Ap. 164, 177. 

188, 193. (6) (1891) I. L. E. 18 Oalc. 385, 

(3) (1876) L. E. 4 Ind. Ap. 1. 392. 

(6) L L. E. 22 Bomb. 996. 
Vol. XXXni. M 



160 



INDIAN APPEALS. 



[L.R 



J. c. 

1906 
Eakne- 

PALLI 

SUBTANA- 

RAYANA 

V. 
PUCHA 

Vbnkata 
Bamana. 



1906 
June 21. 



The judgment of their Lordships was delivered by 

Sib Andbew Sgoble. In this case there is no dispute about 
the facts, but two questions of law arise, both of which are of 
considerable importance. 

Venkata Narasu, a Brahmin landowner in the district of 
Ganjam, in the Madras Presidency, died intestate and without 
issue on February 6, 1861, leaving the second respondent, 
Venkata Eatnamma, his widow and sole heiress, him surviving. 
Before his death he verbally authorized his wife to adopt to him, 
and it is found by the learned judges of the High Court that the 
authority was " in general terms, requiring her to adopt so as to 
continue his line, and to provide for his spiritual benefit. He 
did not indicate any particular person for adoption, either by 
name or otherwise, and placed no restrictions whatever on his 
wife's discretion." 

Twenty-four years after her husband's death, on May 1, 1885, 
the widow adopted a son of one of her sisters, but this child died 
in February, 1886, and twelve years later, on June 10, 1898, she 
adopted the first respondent. Prior to making this second 
adoption she obtained the consent of the elder representatives 
of two branches of her husband's family. The representatives of 
two other branches refused their consent, and on October 7, 1899, 
brought the present suit to set aside the second adoption, as 
having been neither authorized by her husband nor made with 
the consent of his sapindas. 

Upon these facts the first question which their Lordships have 
to determine is whether the authority to adopt given by the 
husband was exhausted by the first adoption ; or whether, on 
the death of the son first adopted, the authority of the husband 
survived so as to empower the widow to make a second adoption. 

So far as their Lordships have been informed, there is no 
decisive text of the ancient Hindu lawgivers upon this point. 
The earlier English authorities express conflicting views. Sir 
F. Macnaghten, writing in 1824, at p. 175 of his Considerations 
on the Hindu Law, says : — 

" If a woman be empowered by her husband to adopt a son, 
and if she does adopt one accordingly, it has never, I believe, 
been declared by any writer that this power can go beyond the 



VOL. XXXTHQ 



INDIAN APPEALS. 



151 



adoption of one, or, without special authority from the husband, 
be extended to the adoption of another if the first adopted 
should die." 

Sir William Macnaghten, writing in 1829, is* less positive: — 
"It is a disputed point," he says, " whether a widow having, 
with the sanction of her husband, adopted one son, and such son 
dying, she is at liberty to adopt another without having received 
conditional permission to that effect from her husband. Accord- 
ing to the doctrine of the Dattaka Mimansa, the act would clearly 
be illegal; but Jagannafha holds that the second adoption in 
such case would be valid, the object of the first having been 
defeated " : Hindu Law, i. 86. 

Sir Thomas Strange, writing in 1880 as to the law prevalent 
in Madras, says : — 

"There exists nothing to prevent two successive adoptions, 
the first having failed, whether effected by a man himself, or by 
his widow or widows after his death, duly authorized " : Hindu 
Law, i. 78. 

There are not many reported cases on the point. In Morley's 
Digest (i. 14), published in 1850, there is a note to the effect that 
" instances have occurred in which a widow has made a second 
adoption on the failure of the first by death, in fulfilment of a 
single injunction or authority from her husband, the object of 
such injunction being unattained unless the child live." 

The case of Ooumath Chowdhree v. Amopooma Chowdrain (1) 
is a distinct authority that where a widow is directed to adopt a 
son, she cannot adopt a second if the first adopted son dies. 
This case was decided by the Bengal Sudder Court in 1852, and 
is cited in modern text-books as establishing the proposition. 
The issue to be determined in the case is thus stated in the 
report : — 

" There being no permission in the unoomuttee puttur " (or 
deed of adoption) " to adopt (children) one after another, is it 
proper, according to the shaster, to adopt one (child) after the 
death of another ? " 

The bywusta of the pundit to whom this question was submitted 
by the Court was : — 

(1) (1862) S. D. A. 332. 

M 2 



J. a 

1906 
Eanne- 

PALLI 
SUBYANA- 
KAYANA 

V. 
PUCHA 

Vbnkata 
Bamaka. 



152 



INDIAN APPEALS. 



[L.E. 



J. C. 
1906 

Eanne- 

PALLI 

SlTBYANA- 

RAYANA 

V. 
PUCHA 

Vbnkata 
Bamaka. 



'' The deed put in does not restrict the adoption to one son 
only, and therefore, on the death of the previous adopted son, 
another may be adopted." 

In their judgment the learned judges first cite the passage 
from Sir William Macnaghten quoted above, omitting the last 
sentence relating to Jagannatha's opinion, and go on to say: — 

" As it is a principle of Hindoo law that, without permission, 
no son can be adopted, it is a fair legal inference that a second 
adoption on the death of the first child, when the husband is no 
longer alive to grant permission to ado'pt, cannot be valid." 

Their Lordships are unable to attach much weight to this 
decision. It discards the opinion of the pundit, refers to no 
previous decisions, does not attempt to discuss the conflicting 
views of the vernacular authorities cited by Macnaghten, and 
rests upon an inference which begs the whole question. Whether, 
and how far, this case is still followed in Bengal, it is not 
necessary now to inquire. For the purposes of this appeal it 
is enough to say that it is not a binding authority in Madras. 

The learned judges of the High Court, one of whom is a 
Hindu lawyer of great distinction, in their judgment say : — 

'' The cases in Calcutta to which our attention has been drawn 
adopt what appears to us to be too artificial a rule of construction 
in that they practically disregard the question of intention ; " 
and they hold that *^ when the general intention of a Hindu to 
be represented by an adopted son is clear, as in this case, there 
seems no reason why e£fect should not be given to such intention, 
if it is possible to do so without contravening the law." 

The practice of the community, they add, has been in accord- 
ance with this view. As regards this particular case, they 
say :— 

"The object and purpose of the authority given by the 
husband was to perpetuate his family as well as to secure his 
spiritual benefit, and it would be unreasonable to hold that an 
accident such as the early death of the boy first adopted should 
be allowed to frustrate the fulfilment of his object, and to preclude 
the widow from making another adoption in the absence of any 
legal impediment to her doing so." 

Their Lordships agree with the learned judges of the High 



voii. xxxnL] 



INDIAN APPEAI& 



158 



Court in the opinion that the main factor for consideration in 
these cases is the intention of the husband. Any special 
instructions which he may give for the guidance of his widow 
must be strictly followed ; where no such instructions have been 
given, but a general intention has been expressed to be repre- 
sented by a son, their Lordships are of opinion that effect 
should, if possible, be given to that intention. This more liberal 
rule has been followed by the High Court of Bombay, as well as 
in Madras, and is not without support in Bengal. In a compara- 
tively recent case reported, Surendra Nandan v. Sailaja Kant 
Das Mahapatra (1) the learned judges of the High Court at 
Calcutta say, at p. 392 : — 

'' Looking at the religious efficacy that ensues from the 
adoption of a son by a widow to her deceased husband, we think 
the Court should not be too astute to defeat an adoption, but 
should rather do its utmost to support it unless such adoption 
is clearly in excess or in breach of the power to make it." 

The limitations to the application of the rule are indicated in 
the judgment of this Committee in the Ramnad Case (2), in which 
their Lordships say : — 

" Inasmuch as the authorities in favour of the widow's power 
to adopt with the assent of her husband's kinsmen proceed in 
a great measure upon the assumption that his assent to this 
meritorious act is to be implied wherever he has not forbidden 
it, so the power cannot be inferred when a prohibition by the 
husband either has been directly expressed by him, or can be 
reasonably deduced from his disposition of his property, or the 
existence of a direct line competent to the full performance of 
religious duties, or from other circumstances of his family which 
afford no plea for a supersession of heirs on the ground of religious 
obligation to adopt a son in order to complete or fulfil defective 
religious rites." 

In the present case it is abundantly clear that the husband 
desired to be represented by a son after his death, and that he 
placed no specific limitation on the power to adopt, which he 
entrusted to his widow. His object was twofold — to secure 
spiritual benefit to himself, and to continue his line. Both 
(1) L L. E. 13 Oalo. 386. (2) 12 Moo, Ind. Ap. 397, ^t p. 443t 



J. C 

1906 

Kanke- 

PALLI 

SUBYAKA- 

RATA17A 

V. 
PUCHA 

Venkata 
Ram ANA. 



154 



JNDIAN APPEALS. 



[L. E. 



J. C, 

1906 

Kanne- 

PALLI 

8UBTAKA« 

BAYANA 

PUOHA 

Venkata 
Bamana. 



these objects are meritorious in the view of the Hindu law, 
and both are in consonance with the feelings known to prevail 
throughout the Hindu community. In the absence of a natural 
son, both can be obtained only by adoption. Funeral rites may 
be performed, and certain spiritual advantages secured, to the 
deceased by a near male relative ; but it is stated in the 
Dattaka Chandrika, a work of some authority in Southern 
India (s. 1, pi. 22), that— 

" Although by reason of the nephew's possessing the repre- 
sentation of the filial relation, he may be the means of procuring 
exemption from exclusion from heaven, and so forth ; still, as 
the celebration of name and the due perpetuation of lineage 
would not be attained, for the sake of the same, the constituting 
him (an adopted son) is indispensable." 

In his able argument on behalf of the appellants, Mr. De 
Gruyther contended that, by the adoption of the first adopted 
son, all the spiritual benefit to be derived from the Act was 
secured to the deceased, and that the adoption of a second boy 
was, therefore, supererogatory and could not be held to be justified 
by the husband's sanction. This contention is disposed of by 
the judgment of Bomesh Ghunder Hitter J. in the case of Ram 
Soondur Singh v. Surbanee DoBsee (1), in which a similar argument 
was put forward : — 

"Is there anything," says that learned judge, "in the general 
Hindu law in support of the contention . . . . ? No passage from 
any of the treatises on the Hindu law, and no texts of the Hindu 
shaster have been cited. As far as I am aware there is none in 
its support. On the other hand, the broad proposition for which 
the learned counsel contends will in a great many cases defeat 
the essential object for which every Hindu desires to adopt, viz., 
the continuance of the spiritual benefit to be conferred upon him 
after his death. An adopted son attaining an age of sufficient 
maturity and by performing the religious services enjoined by 
the shasters, cannot exhaust the whole of the spiritual benefit 
which a son is capable of conferring upon the soul of his deceased 
father ; because these services are enjoined to be repeated at 
certain stated intervals, and the performance of tbena on each 
(1) (187i) 22 Suth. W. R nin 



VOL, xxxm.] 



INDIAN APPEALS. 



155 



successive occasion secures fresh spiritual benefit to the soul of 

the deceased father I am, therefore, of opinion that the 

contention .... is opposed to the general principles of the 
Hindu law.** 

These observations apply with the greater force to the present 
case, as the boy first adopted died when little more than two 
years of age. 

For the reasons stated, their Lordships agree with the High 
Court that the adoption of a second boy in this case was valid, 
and that the widow's authority to adopt was not exhausted by 
the first adoption. In the view which they take of the case it is 
not necessary for their Lordships to consider the second question 
raised upon this appeal, viz., whether, if the widow's authority 
had been held to have been exhausted, there was sufficient con- 
sent on the part of the husband's sapindas to validate the second 
adoption. 

Their Lordships will humbly advise His Majesty that the 
decree of the High Court of Madras ought to be confirmed and 
the appeal dismissed. The appellants must pay the respondent's 
costs of the appeal. 



J. c. 

1906 
Kakne- 

PALLI 

SUBYAKA- 

BAYANA 

V, 
PUCHA 

Venkata 
Ramana. 



Solicitors for appellants : Sanderson, Adkin, Lee d Eddis. 
Solicitor for respondents : Douglas Grant 



166 * INDIAN APPEALS. [L. B. 



J.c* THAKUE TIEBHUWAN BAHADUR 8INGH . Dbpbndant 

1906 AKD 

Ma^io;] EAJA RAMESHAR BAKHSH SINGH . . . Plaintifp. 

Jvly 27. 

I— ON APPEAL FEOM THE COUET OF THE JUDICIAL 

OOMMISSIONEE OF OUDH. 

Law of Limitation — Suit for Posseuion — Defendant's apparent Adoption — 
Act XV. of 1877, s. 2, Sch. IL, Art. 144, 

Where the respondent, who attained majority in June, 1896, sued 
in May, 1899, to recover the taluqa in suit as next heir under Act I. of 
1869, 8. 22, clause 6, and the defendant defended his possession after the 
lapse of twelve years under an apparent adoption, which both Courts 
had held to be invalid : — 

Heldy that there was no acquisition of title by the defendant within 
the meaning of s. 2 of Act XY. of 1877 ; that the Limitation Act of 
1871 did not apply; and that the suit was barred by art. 144 of the 
second schedule to the Act of 1877. 

Jagadamha ChowdhraniY. DaJehina Mohun, (1886) L. E. 13 Ind. Ap. 84, 
distinguished. 

Appeal from a decree of the above Courts (April 11, 1902), 
aflSrming a decree of the Subordinate Judge of Lucknow 
(October 12, 1900) of ejectment against the appellant. 

The title to the Taluqa of Samarpaha in the district of Bae 
Bareli, in Oudh, was in dispute in this appeal. The rival 
claimants were the appellant, who based his title on an alleged 
adoption of his father, Thakur Sher Bahadur Singh, and the 
respondent, who claimed to succeed as next heir under Act L of 
1869, s. 22, clause 6. 

The last male owner was Thakur Basant Singh, who died in 
1857, and was succeeded by Thakurain Daryao Eunwar, his 
widow, not in right of her husband, but in her own right, at 
whose death on November 18, 1898, the disputed succession 
opened. 

To a suit by the respondent claiming as statutory heir as 
above stated, and alleging that the defendant Sher Bahadur Singh 
had been illegally placed in possession of the taluqa by the 

* Preamt: Lord Maonaghtbn, Sir Andrew Scoblb, Sir Arthub 
Wilson, and Sir Alfred Wills. 



VOL. XXXm.] INDIAN APMlALS. 167 

Bevenue authorities, the defendant pleaded in effect that the J. c. 
provisions of s. 22 of the Oadh Estates Act, 1869, did not apply 1906 
to the succession to taluqdars who were women, but if they did thaxub 
he, as the adopted son, and not the respondent, was the Thaku- ^g^^^Duif 
rain's heir, and that at all events the respondent was not entitled Sikoh 
to oust him from possession of the estate without having in the raja 
first instance obtained a declaration that his, the defendant's, bakhsh^ 
adoption was invalid, and that the right to obtain such declara- Singh. 
tion had long since been barred by limitation. He further 
averred that his adoption was valid under the Hindu law and 
the customs of the thakurs of the Bais clan. 

The respondent replied denying the adoption, and alleging that 
there was no necessity to sue to set it aside. The Subordinate 
Judge decided, amongst other things — (1.) that Sher Bahadur had 
been formally adopted as the son of Basant Singh on April 25, 
1858, but that the said adoption was invalid in law without the 
consent of the husband ; he found that the special custom set 
up was not proved, and that no permission to adopt had, in fact, 
been given by Basant Singh to his wife : (2.) that the suit was not 
barred by limitation : and (8.) that the succession was governed 
by Act I. of 1869, s. 22, under clause 6 of which the respondent 
was the next heir to the Thakurain. He accordingly decreed 
ejectment with mesne profits. 

Upon the question of limitation the ground of the decision was 
that as the plaintiff was suing for possession of the estate, and 
not for a declaration that the defendant's adoption was invalid, 
his right to sue was not barred, as his cause of action accrued on 
November 18, 1898, when the Thakurain died. 

The material passage of the judgment bearing on this point 
is as follows : — 

''It has been urged on behalf of the defendant that the 
present suit is barred by article 118, Schedule II., Act XV. of 
1877 as the adoption of the defendant became known to the 
plaintiff and his ancestors more than six years before the 
institution of this suit. Article 129 of Act IX. of 1871 provided 
a period of twelve years for suits ' to establish or set aside an 
adoption from the date of the adoption (or at the option of the 
plaintiff) from the date of the death of the adoptive father.' 



158 INDIAN APPEALS. [L. R. 

J. c. That article has been broken up into two articles 118 and 119 
1906 under the present Act XV. of 1877. Article 118 provides a 
ThIkub period of six years for suits to obtain a declaration that an 
^Ba^uwb^ alleged adoption is invalid or never in fact took place from the 
Singh time when the alleged adoption becomes known to the plaintiff 
Baja and article 119 provides the same period for 'suit to obtam 
BAKH8H ^ declaration that an adoption is valid/ from the time when the 
Singh, rights of the adopted son as such are interfered with. In inter- 
preting article 129 of Act IX. of 1871 their Lordships of the 
Privy Council held in Jagadamba v. Dakhina (1) that the words 
' to set aside adoption ' meant suits in which the validity or 
invalidity of an adoption was brought into question and applied 
to all suits in which the suitor could not succeed without 
displacing an apparent adoption in virtue of which the opposite 
party was in possession. The principle enunciated in the 
above case was re-affirmed by their Lordships in Mohesh Narain 
V. Taruck Nath. (2) The above decisions were given with 
reference to article 129 of the old Act of 1871. I have not been 
referred to any authoritative decision of their Lordships on the 
scope of article 118 of the present Act (XV. of 1877). It 
is contended on behalf of the defendant that the principle 
enunciated in the above rulings is applicable to cases governed 
by the existing law. On the other hand it is argued on behalf 
of the plaintiff that the words in article 118 denote exclusively a 
suit confined to a declaration, and exclude a suit for possession 
or other relief. In Parvathi Ammal v. Saminatha Ourukai (3) 
and in Shrivanaa v. Hanmant (4) it was held that the principle 
laid down by their Lordships of the Judicial Committee in 
Jagadamba's case (1) was applicable to article 118 of the present 
Act and that a plaintiff could only succeed in his suit for 
possession if he could prove that his suit was not barred under 
article 118. As against the above cases there has been a strong 
current of decisions the other way. It was held in the following 
cases that article 118 of the present Act did not apply to a suit 
for possession of immovable property though it might be neces- 
sary for the plaintiff to prove the invalidity of an adoption: 

(1) L. E. 13 Ind. Ap. 84. (3) (1896) L L. E. 20 Madr. 40. 

(2) (1892) L. E, 20 Ind. Ap. 30. (4) (1899) L L. E, 24 Bomb. 260. 



yoL. xxxm.] Indian appeaia 159 

Basdeo v. Oopal (1) ; Lola ParbhuUd v. Mylne (2) ; Ohandarap J. 0. 

V. Lachman Singh (8) ; Padajirav v. Ramrav (4) ; Natthu Singh 1906 

V. Gi^Zai Sin^/i (5) ; Fanyamma v. Manjaya (6) ; ffari iaZ v. thakub 

Bai Rewa (7) ; Jagannath v. Bwnjit iSin^rft (8) ; Ram Clmndra "^^^^^ 

Mukerjee v. Ranjit Singh (9) ; Mussamat BJmgana v. Barjore Singh 

v. 
Singh. (10) Raja 

H A H/TICflTT A R 

" . . . . There seems to be a consensus of opinion in most bakhbh 
of the High Courts that article 118 of the present Act does not si»oh. 
apply to suits for possession and I do not think we are justified 
in departing from it without the distinct authority of the Privy 
Council." 

The Court of the Judicial Commissioner concurred in holding 
that the suit was not barred by limitation, and that the succes- 
sion to the estate in litigation was governed by Act I. of 1869, 
s. 22. In regard to the adoption, the Court agreed that a 
Hindu widow could not validly adopt without the authority of 
her husband; and also a£Srmed the findings of fact that no 
authority had been given by Basant Singh, and that no custom 
had been proved altering the general law so as to dispense with 
such authority. On the other question of fact as to whether 
Thakurain Daryao Kunwar had formally adopted Sher Bahadur 
on April 25, 1868, the said Court reversed the finding of the 
Subordinate Judge, and found that there was no formal adoption, 
but only a revocable nomination of a successor to the estate on 
the death of Thakurain Daryao Kunwar. 

Cohen, K,C., and W. C, Bonnerjee, for the appellant, contended 
that the provisions of s. 22 of Act I. of 1869 do not apply to the 
succession of taluqdari estates granted to women, but only to 
male taluqdars. The respondent was not heir to the deceased 
Thakurain under the Hindu law, and could only come in, if at 
all, as statutory heir under clause 6 of that section. The Courts 
below relied on Bnj Indr a Bahadur Singh v. J anki Kunwar {11) 

(1) (1886) I. L. E. 8 Allah. 644. (7) (1895) I. L. E. 21 Bomb. 376. 

(2) (1887) I. L. E. 14 Calc. 401. (8) (1897) I. L. E. 25 Oalc. 354. . 

(3) (1888) I. L. E. 10 AUah. 485. (9) (1899) I. L. E. 27 Calc. 242. 

(4) (1888) I. L. E. 13 Bomb. 160. (10) (1898) Oudh Oases, vol. i. p. 

(5) (1895) I. L. E. 17 AUah. 167. 30. 

(6) (1896) I. L. B. 21 Bomb, 1$9, (11) (1877) L. B. 5 Ijid. Ap. 1, 13. 



160 INDIAN APPBAI5. [L.R 

i* CL as an anthority the other way. But in that case the qnestion 

1906 was neither raised nor discussed, and it was assumed on ail 

ThIxub sides that s. 22 applied. Sect. 22 was not in terms made 

^B^LDUB^ applicable to female taluqdars, whose case falls naturally under 

Singh g. 28: see also s. 22, clauses 7 and 11. The defendant, as 

Rajjl adopted son, was entitled under s. 22, clause 1, if that section 

Bakhsh apphed, to succeed in preference to the respondent, who only 

^^^- claimed under clause 6. The main ground of appeal was that of 

limitation. The defendant had been de facto adopted, and the 

suit was barred by limitation because it necessarily raised the 

question of the invalidity of that adoption, in reference to which 

a suit to declare it was barred before the present suit was filed. 

Act IX. of 1871 applied, aild as no suit had been brought within 

the time fixed by that Act — see art. 129 of its schedule — ^the 

validity of the adoption could not be questioned in this suit. 

The adoption was made in 1858, and the right to dispute its 

validity was barred and extinguished before the death of the 

Thakurain in 1898 ; and accordingly the title which accrued 

under it became complete under s. 2 of Act XV. of 1877. The 

principle laid down in Jagadamba's case (1), that where a suit to 

set aside an adoption was barred so also was any suit which in 

order to succeed must first get rid of the adoption, applies equally 

to Act XV. X)f 1877, Sched. II., art. 118 : see Jagadamba Chow- 

dhrani v. Dakhina Mohun Roy Choivdhi-y (!) ; Mohesh Narain 

Munshi v. Taruck Nath Moitra (2) ; Parvathi Ammal v. Saminaiha 

Ghiruka (3) ; Shrinivas v. Hanmant (4) ; Barot Naran v. Barot 

Jesang (5) ; Ramchandra Mukerjee v. Ranjit Singh (6) ; Bijoy 

Gopal Mukerji v. Nilratan MukeijL (7) 

De Gi*uyther, for the respondent, contended that he was 
entitled under s. 22, clause 6, of the Act, which section applied. 
The case in 5 Ind. Ap. 1 was exactly in point. A woman there 
was taluqdar in her own right, and her name was entered in lists 
1 and 2 under the Act. It was held that succession to her estate 

(1) L. E. 13 Ind. Ap. 110. (6) (1900) 1. L. E. 25 Bomb. 26. 

(2) L.K20 Ind.Ap. 30, 35. (6) (1899) I. L. E. 27 Calc. 242, 

(3) (1896) I. L. E. 20 Madr. 40. 263. 

(4) (1899) I. L. E. 24 Bomb. 260, (7) (1903) I. L. B. 30 Calc. 990, 
270. 996. 



yoL. xxxin.] 



INDIAN APPEALS. 



161 



Singh 

t). 

Raja 

Rambshab 

Bakhbh 

Singh. 



was governed by s. 22. The case of female taluqdars is not j. a. 
excepted from that section in express terms, and there was no 1906 
reason or authority for excluding them by implication. Sect. 23 thakub 
only applied to taluqdars whose names are entered in list 4. He ^^^^^^^ 
referred to Haidar AU v. Tassaduk Basul Khan (1) ; Maharajah 
Pertab Narain Singh v. Subhao Koer, (2) 

As to the validity of the adoption, which was made without the 
husband's assent, the cases since 1816 were uniform to the effect 
that it was invalid, and are to be found collated in Tulahi Ram v. 
Beliari LaL (3) 

The real question in reference to the adoption was the question 
of limitation. The suit was in 1899. The respondent was born 
in 1875, attained majority in 1896, and sued within three years 
of attaining it. There was no cause of action until the death of 
the Thakurain in 1898, for she was fully entitled in her own 
right, and the respondent had no title until her death. If, on 
the other hand, time ran from the date of the adoption, there was 
still no right to sue to set it aside until the respondent had some 
vested interest opposed to it : see Kathama Natchiar v. Dorasinga 
Tevar (4) ; Rani Anund Koer v. Cmirt of Wards. (5) It was 
contended that Act XV. of 1877, and not Act IX^of 1871, was the 
applicable law of limitation. The case was governed by art. 144 
of Sched. II. of the later Act. Article 118 differed in its terms 
from art. 129 of the earlier Act, and did not apply to a suit for 
possession. It only applied to declaratory suits under the 
Specific Belief Act (I. of 1877), s. 42 : see illustration (/). There 
had been no acquisition of title by the appellant in virtue of an 
apparent adoption within the meaning of s. 2 of Act XV. of 1877. 
Nor could it be laid down under Act XV. of 1877 that a plaintiff 
must sue for a declaratory decree before suing for possession, 
and that his suit for possession is barred if a declaratory action 
is barred : see Lali v. Murlidhar (6) ; Liichmun Lai Chowdhry 
V. Kanhya Led Mowar (7); Ram Chandra Mukerjee v. Ranjit 



(1) (1890) L. E. 17 Ind. Ap. 82. 

(2) (1877) L. R. 4 Ind. Ap. 228, 
233. 

(3) (1889) I. L. E. 12 Allah. 328, 
370, 381, 386. 



(4) (1875) L. E. 2 Ind. Ap. 169. 

(5) (1880) L. E. 8 Ind. Ap. 14, 21. 

(6) (1901) L L. E. 24 Allah. 196, 
197. 

(7) (1894) L. E. 22 Ind. Ap. 51. 



Bakhsh 

SiNOH. 



1906 
July 27. 



162 INDIAN APPEALS. [L. E- 

J. C, Singh (1) ; Jagannath Prasad Oupta v. Runjit Singh (2) ; 
1906 Shrinivas v. Hanmant{S); Ratnamasari v. AkilandammaL {^) 
ThIxub Cohen, K.C, replied, contending that the suit was barred by 
TiRBHuwAN Act IX. of 1871 and could not be revived by Act XV. of 1877, 
SiNOH and relying on the case in 24th Bombay Eeports. 

V, 

Baja 
^bakhsh^ The judgment of their Lordships was delivered by 

Lord Macnaghtbn. This is an appeal from a judgment and 
decree of the Court of the Judicial Commissioner of Oudh, 
affirming a decree of the Subordinate Judge of Lucknow. 

The matter in dispute is the title to the Taluqa of Samarpaha, 
in the district of Eae Bareli, in Oudh. The appellant's claim is 
based on an alleged adoption. The respondent claims as next 
heir under Act I. of 1869, s. 22, clause 6. 

The last male owner of the Taluqa was Thakur Basant Singh, 
He died on November 12, 1857. His next heir was his widow 
Thakurain Daryao Kunwar. After the confiscation of proprietary 
rights in Oudh by the proclamation of March, 1858, a summary 
settlement of the Taluqa was made with her on May 10, 1858, 
and a sanad was afterwards granted to her. On the preparation 
of the lists of faluqdars in accordance with the provisions of 
Act I. of 1869, her name was entered in lists 1 and 2. It is 
not disputed that the Thakurain became taluqdar, not in right 
of her husband Basant Singh, but in her own right. 

The Thakurain died intestate on November 18, 1893. Shortly 
after her death, the appellant's father, Thakur Sher Bahadur 
Singh, being found in possession and claiming under an adoption 
alleged to have been made in his favour by the Thakurain after 
her husband's death, had his name entered by the Deputy 
Commissioner in her place in the Eevenue register. 

On May 27, 1899, the respondent, who attained majority in 
June, 1896, instituted the present suit, claiming to succeed as 
next heir in right of his grandfather, who was the eldest brother 
of the Thakurain. 

Both Courts decided in favour of the plaintiff. The defendants 

(1) I. L. E. 27 Gale. 242, 254. (3) I. L. E. 24 Bomb. 260. 

(2) (1897) L L. E. 25 Calc 354, (4) (1902) 1. L. E. 26 Madr. 291, 
359. 297. 



VOK XXXm.] INDIAN APPEALS. 168 

appealed to His Majesty in Council, having obtained a certificate j. c. 
to the effect that the case fulfilled the requirements of s. 696 1906 
of the Code of Civil Procedure, and that the appeal involved thakije 
substantial questions of law. * Tirbhuwan 

Many questions were raised in the Courts below which have Singh 
now disappeared, or were argued so faintly before their Lordships raja 
that it is not worth while to discuss them. ^Bakhsh* 

The main contest throughout has been in regard to the alleged Sikgh. 
adoption of Thakur Sher Bahadur Singh. On this poiut there 
was a difference of opinion in the Courts below. The Subordinate 
Judge held that there was an adoption in fact, attended with the 
ordinary ceremonies of adoption, although it was invalid because 
the Thakurain had not the authority of her husband in the 
matter. The Court of the Judicial Commissioner held that there 
was no adoption in fact, but only a nomination of the defendant 
as the Thakurain' s heir, or, in other words, an adoption in a 
popular sense. 

On the appeal before their Lordships it was argued that there 
was at any rate an apparent adoption, and that, on that 
assumption, it mattered not whether the adoption was valid or 
invalid, because there was enough to satisfy the provisions of the 
Limitation Act of 1871, as interpreted by this Board in the case 
of Jagadamba Chowdhrani v. Dakhina Mohun. (1) Mr. Cohen, 
who argued the case with great ability, reUed entirely on the 
Act of 1871. He contended that the Limitation Act of 1877 did 
not apply because the appellant relied on title acquired before the 
passing of the Act of 1877, and his rights were therefore saved 
by s. 2 of that Act. He admitted that if the Act of 1877 applied, 
his client was out of Court. 

Their Lordships are unable to accede to Mr. Cohen's argument. 
Giving full effect to the Jagadamba Case (1) and the other cases 
which followed it, they do not think that the immunity, such as 
it is, gained by the lapse of twelve years after the date of an 
apparent adoption amounts to acquisition of title within the 
meaning of s. 2 of the Act of 1877. 

Their Lordships think that the appeal may be disposed of on 
this short ground, whether the alleged adoption was or was not 
(1) L. K 13 Ind. Ap. 84. 



164 MDtAlf APPEALS. [ti. S. 

J. c. an apparent adoption to which the ruling in the Jagadamha 
190« Ccue (1) would apply if the Act of 1871 were now in force. 
ThIkub Their Lordships do not think it necessary to enter upon a 
^B^iSuB^ consideration of the other diflSculties in the way of the appellant. 
Singh But they may observe in passing that if they had to choose 
Raja between the opposite views of the Courts below as to the so-called 
^baxhsh^ adoption their Lordships would be disposed to prefer the view of 
SnroH. the Judicial Commissioner. They may add that they are not 
satisfied that the finding of the Commissioner of Eae Bareli in 
1878 in the suit between the Thakurain and the appellant 
(reported at an earlier stage before the Privy Council, 3 1. L. E., 
Calcutta, 645) on the issue of adoption or no adoption would not 
be fatal to the appellant's case. Whatever objections there may 
have been to that issue being raised before the Commissioner 
on remand, both parties accepted it. It was treated as the main 
question in the suit. The issue was decided adversely to the 
appellant. The appellant abandoned an appeal to the Privy Council 
which he had begun, and so the decision became final. Having 
regard to the language of the Code of Civil Procedure, s. 13, 
which deals with issues as well as suits, it would seem that the 
finding on the issue as to adoption must be treated as res judicata. 
This point, however, was only touched upon in the argument, 
and their Lordships therefore abstain from expressing a final 
opinion on the question. 

Their Lordships will humbly advise His Majesty that this 
appeal should be dismissed. 

The appellant will pay the costs of the appeal. 

Solicitor for appellant : Solicitor, India office. 
Solicitors for respondent : T. L. Wilson d Co. 

(1) L. E. 13 Ind. Ap. 84. 



VOL. XXXm.] INDIAN APPEALS. 166 



MANIRAM Plaintiff; j.c.« 



AND 



1906 



SETH RUPCHAND Defendant. May 11,25. 

ON APPEAL FROM THE COURT OF THE JUDICIAL 
COMMISSIONER, CENTRAL PROVINCES. 

Law of Limitation— Act XV, of 1877, «. 19 — Acknowledgment of Liahility^r- 
Admiaaion of open and current Accounts — Conatruction, 

Objections having been filed to a debtor's application as an executor 
for probate of the will of his deceased creditor, the debtor replied in a 
written statement signed by himself before the statutory period had run 
out and containing these words : '' For the last five years he had open 
and current accounts with the deceased. The alleged indebtedness does 
not affect his right to apply for probate " : — 

Held, in a suit to recover an admitted balance of account from the 
debtor, that this was a sufficient acknowledgment of his liability within 
the meaning of s. 19 of Act XV. of 1877. It was a dear admission of 
open and current accounts, that either party had a right to an account, 
and that whoever turned out to be debtor was bound to pay. 

In re River Steamer Co,, MUchelVa Claim, (1871) L. R. 6 Ch. 822, to 
the effect that a conditional proiyiise to pay, the condition being 
performed, is a binding acknowledgment of debt, approved and held 
applicable to the construction of the Indian Act. 

Appeal from a decree of the Court of the Judicial Com- 
missioner (October 23, 1903), afl&rming a decree of the Divisional 
Judge of the Nerbudda Division (October 22, 1902), which 
affirmed a decree of the Civil Judge of Ehandwa (June 16, 1902). 

Two questions were involved in the appeal — (1.) whether a 
statement contained in a written statement filed by the 
respondent amounts to an acknowledgment of his liability in 
respect of the sum sued for within the meaning of s. 19 of the 
Indian Limitation Act, 1877 ; and (2.) whether the respondent 
intermeddled with the estate of his deceased creditor as executor, 
and if he did, whether his intermeddling with such estate saved 
the appellant's right of suit from being barred by limitation. 

The suit was brought on September 5, 1901, under the circum- 
stances stated in their Lordships' judgment, by the appellant to 

• Present: LoED Maonaghtbn, Sik Andrew Sooble, Sir Arthur 
W1L801T, and Sir Alfred Wills. 
Vol. XXXm. N 



166 



INDIAN APPEALS. 



[LB. 



J. c 

1906 

Makibam 

V. 

Sbth 

BUPOHAKD. 



recover principal and interest due by the respondent as shewn 
by the accounts of Motiram, the deceased creditor, who carried on 
business as a banker. The transactions between them ter- 
minated on May 12, 1898. The respondent pleaded the Statute 
of Limitations, relying on art. 67 of the Second Schedule, which 
prescribes a three years' period. The appellant replied that 
" the accounts between the parties are open and current accounts, 
and there has been also during the dealings reciprocal demands 
between them, who were both big bankers " ; that '* the defen- 
dant has also acknowledged his liability on September 28, 1899, 
and has again admitted his liability on July 4, 1901, and 
thereby has given fresh starting point for limitation if it is 
held that the dealings were not mutual, open and current 
account within the meaning of article 85 of the Limitation Act " ; 
and that the respondent having acted as executor of the will 
of Motiram Seth from the time of his death till the final 
rejection of the application for probate by the Judicial Com- 
missioner, i.e., till November 80, 1900, stood in a fiduciary 
relation to the appellant, and could not claim to take advantage 
of his position, and the suit was saved by the provisions of s. 10 
of the Limitation Act. 

Article 85 is as follows : '* For the balance due on a mutual, 
open and current account where there have been reciprocal 
demands between the parties — three years — the close of the 
year in which the last item admitted or proved is entered into 
the account ; such year to be computed as in the account." 

Sect. 10 is as follows : '* Notwithstanding anything herein- 
before contained no suit against a person in whom property has 
become vested in trust for any specific purpose, or against 
his legal representatives or assigns (not being assigns for 
valuable consideration) for the purpose of following in his 
or their hands such property shall be barred by any length of 
time." 

The Civil Judge was of jopinion that the cause of action in 
regard to each payment arose at the time the money was paid, 
and that the suit having been brought on September 5, 1901, 
i.e., more than three years after the date of the last payment, was 
barred bv limitation under Act XV. of 1877, Sched. 11., art. 67. 



VOL. XXXTHQ INDIAN APPEALS. 167 

He was also of opinion that the suit was not governed by art. 86 J. c. 
of the said schedule as being a suit ** for the balance due on a 1906 
mutual, open and current account where there have been maniram 
reciprocal demands between the parties." He decided that the g^^^ 
period of limitation could not be extended on any of the grounds Rupchand. 
on which the extension was claimed, finding that the statement 
in the petition dated September 28, 1899, was not an acknow- 
ledgment of liability; that the acknowledgment of liability 
contained in the deposition of Bupchand made on July 4, 1901, 
was not signed by him, and ** that the defendant did not 
administer Motiram's estate so as to enable the plaintiff to get 
an extension of the period of limitation for this suit." 

The first appellate Court affirmed this judgment, and the Court 
of the Judicial Commissioner concurred in the findings of the two 
Courts that the suit was barred by limitation. It further held 
that the respondent was not liable as a trustee under either s. 87 
or s. 88 of the Indian Trusts Act (II. of 1882). 

De Gruyther, for the appellant, contended that the Courts in 
India had erred in holding that the suit was governed by art. 57 
instead of art. 85 in the Second Schedule to the Limitation Act. 
The suit was for the balance of a mutual and current account 
between the parties, and the cause of action arose on the last day 
of the year which contained the last item proved or admitted. 
The absence of a shifting balance was not conclusive as to the 
absence of mutuality in the account. Eeference was made to 
Hajee Syud Mahomed v. Ashrufoonnissa (1) ; Velu Pillai v. Ghose 
Mahomed (2) ; Ganesh v. Gyapu. (3) Even if s. 85 appHed, the 
period of limitation was extended by a valid acknowledgment of 
liability within the meaning of s. 19. The petition of 
September 28, 1899, was signed by the respondent, and contains 
a clear admission of open and concurrent accounts with the 
deceased. That is a sufficient acknowledgment of liability 
involving a promise to pay on settlement of the account, and 
satisfies s. 19 : see the English authorities as to the effect of 
admitting a creditor's right to have accounts taken — Prance v. 

(1) (1880) L L. E. 5 Calo. 759. (2) (1893) I. L. E. 17 Madr. 293. 

(3) (1897) I. L. E. 22 Bomb. 606. 

N 2 



168 



INDIAN APPEALS. 



[L.E. 



J. C. Sympson (!) ; Banner v. Berridge (2) ; In re River Steamer Co., 

1906 Mitchell's Case. (3) 
M^^oBAM These cases have been followed in India and held applicable to 

Sbth ^^^ Indian Act : see Sittaya v. Rangareddi (4) ; Fink v. BuUeo 
EupcHAND. Bass (5) ; Vasudeo Anant v. Ram Krishna Rao Narayan: (6) 

Besides, the respondent could not set up the bar of limita- 
tion, since he was trustee under his creditor's will, and had acted 
in the administration of his estate either by virtue of a valid 
appointment or as executor de son tort : see ss. 87 and 88 of 
the Trusts Act (II. of 1882). His petition contained an admis- 
sion that he meddled in the management of the estate, and there 
are concurrent findings of fact to that effect, which, however, 
are not conclusive, for on examination they appear to be on mixed 
questions of law and fact. Reference was made to Ingle v. 
Richards (7) ; Moosahhai Mahmned Sajan v. Yacoobbhai Mahomed 
Sajan (8) ; Narayanasami Pillai v. Abhayi Bait. (9) 

C. W. Arathoon, for the respondent, contended that the findings 
of three Courts to the effect that the respondent did not inter- 
meddle with Motiram's estate were conclusive and binding : see 
Mussamat Durga Chovdhrain v. Jiwahir Singh Choudhri. (10) 
Sect. 87 of the Trusts Act did not apply, for probate had been 
refused, the Court holding that the respondent and others had not 
been legally appointed executors. Even if he had intermeddled, 
he did not do so to the extent of becoming an executor de son tort 
within the meaning of the Indian Succession Act, ss. 265-266, 
if those sections are applicable to the case of a Hindu : see the 
exceptions there given. He referred to s. 9 of the Limitation 
Act, and contended that limitation had begun to run in 
Motiram's lifetime, and was not at any time suspended by any 
act or omission of the respondent. The acknowledgment relied 
upon as being contained in the petition of September 28, 1899, 
was not within the meaning of s. 19 : see Jogeshwar Roy v. Raj 



(1) (1864) 1 Kay, 678. 

(2) (1881) 18 Ch. D. 254, 274. 

(3) L.E.6 0h.Ap.822,828. 

(4) (1887) I. L. E. 10 Madr. 259. 

(5) (1899) I. L. E. 26 Calc. 715. 

(6) (1900) I. L. E; 24 Bomb. 394, 



(7) (1860) 28 Beav. 366. 

(8) (1904) L L. E. 29 Bomb. 267, 
283. 

(9) (1905) I. L. E. 28 Madr. 351. 

(10) (1890) L, E. 17 Ind. Ap, 122, 
X27, 128, 



VOL. XXXm.] INDIAN APPEALS. 169 

Naram Mitter (1) ; Hajee Syud Mahomed v. Ashrufoonnissa (2) ; j. c. 
Velu Pillai v. Ohose Mahomed (8) ; Oanesh v. Gyamu. (4) 1906 
There was no agreement express or implied that any accounts maniram 
should be settled between the parties. In fact there were no ^• 
mutual and current accoimts in the ordinary mercantile sense. Rtjpchand. 
They consisted of items of advance by the deceased and of part 
payments by the respondent, who was always in debt on the 
account. There were no reciprocal demands between the 
parties, and accordingly art. 85 of the Limitation Act did not 
apply. He referred to art. 57. 

De Gruyther replied, citing Sukhamoni Chowdhrani v. Ishan 
Chunder Roy. (5) 

The judgment of their Lordships was delivered by 1906 

Sib Alfred Wills. One Motiram, of whom the apj)ellant May 25, 
(the plaintiff in the action) is the adopted son, and one Eupchand, 
the respondent and the defendant in the action, were mahajans 
or money-dealers, both residents of Burhanpur, in the Central 
Provinces. They had regular dealings with one another from 
July 21, 1895, to May 12, 1898, and at the close of these dealings 
the respondent owed Motiram Es.5841. 9. 1 on account of 
principal and Es.2801. 2. on account of interest. No question 
has been raised as to the correctness of these amounts if the 
action be maintainable. 

The present suit was brought on September 5, 1901, to 
recover these amounts. There is no question that they were 
due. The respondent admitted in his pleading that they were 
BO, and the only defence is that the action was barred by the 
lapse of time. 

Motiram died on October 6, 1898, leaving a will by which the 
respondent and four other persons were appointed trustees to 
administer the estate. Three of them, of whom the respondent 
was one, applied for probate. The application was opposed by 
the other two and by Kisandas, the natural father of the appel- 
lant. Their petition of objections is not in the record, but the 

(1) (1903) I. L. E. 31 Oalc. 195. (3) I. L. E. 17 Madr. 293. 

(2) L L, R. $ Calc. 769. (4) (1897) I. L. R. 22 ?omb. 60q. 

(6) (1898) L. B. 25 Ind, Ap. 95, 



170 



INDIAN APPEALS 



[L. fi. 



J. c. reply, signed by the respondent and others, is set out, and from 

1906 it there can be no doubt that amongst the objections was one on 

Manibam tJi© ground that the respondent owed money to the estate. 

Seth Paragraph 3 is as follows : " The applicant Eupchand Nanabhai 

RuPGHAKD. is a big Mahajan of Burhanpur paying Bs.l06 as income tax. 

For the last five years he had open and current accounts with 

the deceased. The alleged indebtedness does not affect his right 

to apply for probate." This document is dated September 20, 

1899. 

The application for probate failed on the ground that the 
applicants were not legally appointed executors. 

There was no application for letters of administration, bat in 
1901 Kisandas applied for a certificate of guardianship, an 
application which was opposed by the widow, and in the result 
Eanchordas, one of Motiram's head agents, was appointed 
interim receiver of the estate until the question of a certificate 
of guardianship was disposed of. 

Eanchordas, as next friend of the infant plaintiff, instituted 
the present suit, and on December 4, 1901, Eisandas, having 
obtained the certificate of guardianship, was substituted for him. 

A question has been raised as to whether the dealings between 
the respondent and Motiram were mutual as well as open and 
current, and involved reciprocal demands between the parties so 
as to make art. 85 of the Indian Limitation Act (No. XY. of 
1877), Sched. II., applicable. The dealings were certainly not 
the ordinary ones of banker and customer, but rather in the 
nature of mutual accommodation, but the view which their 
Lordships take makes it unnecessary to consider this question, 
and for the purposes of this case the controversy may be treated 
as if the sum due to Motiram was a simple debt or series of 
debts none of which were incurred before September 28, 1896, 
since as late as January 24, 1897, Motiram, as appears by the 
summary of accounts appended to the judgment of the Civil 
Judge (the Court of First Instance), had drawn against the 
respondent for more than the respondent had drawn against 
him. 

The last item against the respondent in account between them 
is dated May 12, 1898, and th^ indebtedness for principal must 



VOL. XXXm.] INDIAN APPEALS. 171 

therefore have been incurred between January 24, 1897, and j. c. 
May 12, 1898, and the periods of limitation applicable to the i906 
several components of the total demand for principal would ma^ibam 
expire at various dates between January 24, 1900, and May 12, ^^ 
1901. And in the absence of a sufficient acknowledgment Bupohand. 
before such periods had arrived the debt or debts would be 
barred. 

An acknowledgment according to the Indian Act must be 
signed by the party to be afifected by it, and the only document 
which can be relied upon as an acknowledgment signed by the 
respondent is the statement filed by the respondent in the pro- 
ceedings touching the application for probate, the material part 
of which has been already set out, but which it is convenient 
here to repeat. " For the last five years he " (the respondent) 
'* had open and current accounts with the deceased." There 
can be no doubt that the five years spoken of are the five years 
before the death of Motiram, i.e., before October 6, 1898. On 
that date the whole of the indebtedness other than interest had 
been incurred, there having been no dealings since May 12, 1898. 
There is, therefore, a clear admission that there were open and 
current accounts between the parties at the death of Motiram. 
The legal consequence would be that at that date either of them 
had a right as against the other to an account. It follows equally 
that whoever on the account should be shewn to be the debtor to 
the other was bound to pay his debt to the other, and it appears 
to their Lordships that the inevitable deduction from this admis- 
sion is that the respondent acknowledged his liability to pay his 
debt to Motiram or his representative if the balance should be 
ascertained to be against him. 

The question is whether this is sufficient by the Indian law to 
take the case out of the statute. 

It has been already pointed out that the acknowledgment was 
made before the statutory period had run out. Thus one requisite 
of s. 19 is complied with. The necessity of signature by the party 
to be charged is also complied with. The acknowledgment is not 
addressed to the person entitled, but according to the '* explana- 
tion " given in s. 19 this is not necessary. We have, therefore, 
the bare question of whether an acknowledgment of liability, if 



172 INDIAN APPEALS. [L. B. 

J. c. the balance on investigation should turn out to be against the 

1906 person making the acknowledgment, is sufficient. 

Manieam Their Lordships can see no reason for drawing any distinction 

Seth ^^ *^^^ respect between the English and the Indian law. The 

EupoHAND. question is whether a given state of circumstances falls within 

the natural meaning of a word which is not a word of art, but 

an ordinary word of the English language, and this question is 

clear of any extraneous complications imposed by the statute law 

of either England or India. 

In a case of very great weight, the authority of which has 
never been called in question, Mellish L.J. laid it down that an 
acknowledgment to take the case out of the Statute of Limita- 
tions must be either one from which an absolute promise to pay 
can be inferred or, secondly, an unconditional promise to pay the 
specific debt, or, thirdly, there must be a conditional promise to 
pay the debt and evidence that the condition has been performed: 
In re River Steamer Co., MitchelVs Claim. (1) An uncondi- 
tional acknowledgment has always been held to imply a pro- 
mise to pay, because that is the natural inference if nothing is 
said to the contrary. It is what every honest man would mean 
to do. There can be no reason for giving a different meaning to 
an acknowledgment that there is a right to have the accounts 
settled, and no qualification of the natural inference that who- 
ever is the creditor shall be paid when the condition is performed 
by the ascertainment of a balance in favour of the claimant. It 
is a case of the third proposition of Mellish L.J., a conditional 
promise to pay and the condition performed. 

.There was therefore on September 28, 1899, a sufficient 
acknowledgment to give a new period of limitation from the 
date of the acknowledgment, viz., September 28, 1899, and the 
present suit having been commenced on September 5, 1901, is 
within any period of limitation that can be applicable. 

The acknowledgment to which attention has been directed is 
followed in the same paragraph by the following sentence : " The 
alleged indebtedness does not affect his" (the respondent's) 
** right to apply for probate." Stress was laid by the Civil Judge 
upon the word " alleged." He was of opinion that the word 

(1) L. E. 6 Ch. Ap. 822, 828 



VOL. XXXTHQ INDIAN APPEALS. 178 

" had " in the sentence " for the last five years he had open and J. c. 
current accounts with the deceased" and the word "alleged" 1906 
were fatal to the validity of the acknowledgment. Their Lord- maniram 
ships cannot share this opinion. The first sentence shews that g^^^ 
there were open accounts at the death of Motiram. If nothing Rupchand. 
further is alleged the natural presumption is that they continued 
unsettled at the time the statement was made. The sentence 
which follows is perfectly consistent with this admission. The 
meaning is " even if there is a balance against the respondent 
that does not disqualify him from fulfilling the duties of an 
executor/' and it has been pointed out that what is relied upon 
here is an acknowledgment subject to the condition that an 
adverse balance really exists, and the condition is fulfilled in fact* 

The judgment in the Divisional Judge's Court is also against 
the acknowledgment. The only reason given is that it would 
require a considerable stretch of the imagination to place upon 
it the meaning that there was a right to have the account taken, 
thereby implying a promise to pay. It has not, however, been 
argued that there was a promise to pay in any event, and the 
learned judge does not seem to have considered the meaning, 
which appears to their Lordships to be the natural one, that the 
words import an admission of liability if the balance should 
prove to be against the respondent coupled with the fulfilment 
of that condition — a state of things which in all reason and 
sound sense places the acknowledgment upon the same footing 
as an acknowledgment unconditional in the first instance, from 
which, in English law, a promise to pay has always been inferred. 
The Indian Limitation Act, s. 19, however, says nothing about 
a promise to pay, and requires only a definite admission of 
liability, as to which there can be no reason for departing from 
the English principle that an unqualified admission and an 
admission qualified by a condition which is fulfilled stand upon 
precisely the same footing. 

The view taken by the Judicial Commissioner is again one 
with which their Lordships are unable to agree. 

He refers to a case of Sitayya v. Ilangareddi and Others (1), 
in which it was held that an acknowledgment of the plaintiff's 
(1) L L. E. 10 Madr. 259. 



174 INDIAN APPEALS. [L. E. 

J. c. right to have accounts taken and of the defendants' liability to 
1906 pay any balance (if such there should be) against him was held 

Makieam *^ satisfy s. 19 of the Limitation Act. But this decision appeared 
^- to him to be either erroneous or inapplicable, because it is based 

RxTFCHAND. upou two EngHsh cases, Prance v. Sympson (1) and Banner v. 
Berridge (2), in which similar acknowledgments were held to 
satisfy the English law upon the subject, the acknowledgment 
in Prance v. Sympson (1) being undistinguishable from that relied 
upon in the present case. He goes on to give as his reason for 
considering that the English cases do not apply in the present 
case the fact that the English law requires words from which a 
promise to pay may be inferred, whereas the Indian Act requires 
words from which an admission of liability may be inferred. 
But in English law it is the acknowledgment of liability which 
is the ground upon which a promise to pay is inferred, so that 
the requirements of English law are, if anything, more, and not 
less, stringent than those of Indian law, which seems to be a bad 
reason for holding that the English cases have no application 
to the present inquiry. The learned Judicial Commissioner 
further agrees with the Civil Judge in holding that the expres- 
sion ** alleged indebtedness " is a stumbling block in the way of 
the appellant, a view upon which their Lordships have already 
expressed their opinion. 

In the opinion of their Lordships, therefore, the acknowledg- 
ment of September 28, 1899, is sufficient to prevent the 
claim of the appellant from being barred by the Limitation Act. 
It is, therefore, unnecessary to discuss the other grounds upon 
which the appellant has relied. Their Lordships would notice 
only one point in connection with them. The appellant con- 
tended that the respondent, whether appointed executor by the 
will or not, had intermeddled with the property of the deceased, 
and was at all events executor de son tort, and therefore not 
entitled to the benefit of the Limitation Act. The respondent 
has in this suit admitted in the most definite manner that he did 
so. In spite of this admission each of the three Courts below 
has held that .he did not, and the respondent's counsel claimed 
that this was a decision of a matter of fact, and that however 
(1) 1 Kay, 678. (2) 18 Oh. D. 264. 



VOL. XXXm] INDIAN APPEALS. 175 

erroneous it might be, it would be contrary to the practice of the J. c. 
Judicial Committee to entertain the question of its reversal. 1906 
A careful perusal of the judgments, however, makes it perfectly Mii^iEAM 
clear that the only reason for the view taken by the Courts g^^^ 
below was that they thought the respondent had not been duly Bupchand. 
appointed executor, and therefore could not have intermeddled 
with the estate so as to make himself responsible as executor. 
Their decision was therefore really one of law, and not of fact, 
and is open to reconsideration. 

Their Lordships will humbly advise His Majesty that the 
judgments appealed against be reversed and judgment entered 
for the appellant for the principal claimed, with interest at the 
rate of 7 annas 9 pie per cent, per mensem to date of suit, and 
thereafter at the rate of 6 per cent, per annum till payment, 
and that the respondent be ordered to pay the costs of the 
appellant in each of the Courts below. The respondent will 
also pay the costs of this appeal. 

Solicitors for appellant : Riibimtein d Co. 
Solicitors for respondent : T. L. Wilson d Co. 



176 INDIAN APPEALS. [L. B. 



J.c* BAI KESSERBAI Plaintiff; 

^ AND 

m23,27, HUNSEAJ MOEARJI and Another . . . Defendants. 

^^' ON APPEAL FEOM THE HIGH COUET AT BOMBAY. 

Hindu Law of Inheritance in Bombay — Stridhan — Mitakshara, c. li., $, 11, 
verses 8, 9 and 11— Mayukha, c. iv., s, 10, verses 28 and SO— Hindu Widow 
dying tuitJiout Issue — Preferential Bights of Co-widow — Claims of Bus- 
hand^s Brother or his Son, 

Questions on the Hindu law of inheritfince to property in the island 
of Bombay are to be determined in accordance with the Mitakshara, 
subject to any varying doctrine contained in the Mayukha, ascertained 
after construing both treatises so as to harmonize with one another 
wherever and so far as that is reasonably possible. 

By the Mitakshara, c. ii., s. 11, verses 8, 9 and 11, a Hindu co- widow is 
entitled to succeed to the stridhan of a widow dying without issue in 
preference to her husband's brother or brother's son. 

The Mayukha, c. iv., s. 10, verses 28 and 30, does not on its true construc- 
tion alter or supersede the doctrine of the Mitakshara. By the former 
verse her heirs are described as her nearest sapindas in her husband's or 
her father's family according to the form of her marriage. The oo- 
widow is not excluded, nor is any new order of succession prescribed. 
She takes, therefore, in the order prescribed by the Mitakshara. That 
unambiguous direction cannot be controlled by the uncertain language 
of verse 30. The true construction of that verse, bringing it into harmony 
with verse 28 and the Mitakshara, is that the relations of the husband or 
the father succeed according to the form of marriage ; but the list of heirs 
is given promiscuously and is not exhaustive, nor is there any indication 
of an intention to alter or supersede the order or succession previously 
prescribed. 

Appeal from a decree of the High Court (February 10, 1904), 
reversing a decree of Batty J. (February 21, 1903) and dismiss- 
ing the appellant's suit. The question between the parties was 
one of law, whether the appellant is the preferential heir 
according to the Hindu law of the Bombay school of a Hindu 
widow named Bachubai, who died childless and intestate on 
May 9, 1899. 

The property in dispute is a house in Bombay which was 

* Present: LoKP Davey, Sir Anpkbw Soobu;, and Sir Arthur 

WiLSOlT, 



VOL. XXXin.] INDIAN APPEALS. 177 

Bachubai's stridhan, and of which she died possessed. The J. C 
claimants thereto were the appellant, the surviving co-widow of 1906 
Bachubai's husband Koreji Haridass, who had conveyed abso- bai 
lately the property to Bachubai on November 24, 1892, Kesskrbai 
in contemplation of marriage ; the first respondent Hunsraj Hunsraj 

Morarji, who was the separated nephew of Koreji, being the son 

of his eldest brother, who predeceased Bachubai ; the second 
respondent Bai Monghibai, who was the widow of a younger 
brother of Koreji named Eanchordas Haridass, who survived the 
widow. 

The issues fixed were (1.) — whether, on the death of Bachubai, 
Eanchordas Haridass was not the heir of Bachubai and succeeded 
to the property mentioned in the plaint ; (2.) whether the first 
defendant, as widow and heir of Eanchordas, is not entitled to the 
property the subject-matter of this suit (as the heir of Eanchordas 
Haridass) ; (8.) whether the plaintiff is entitled to succeed. 

Batty J. decided that the deed of gift dated November 24, 
1892, conferred on Bachubai an absolute estate in the property 
as stridhan ; and that by the Hindu law of the Bombay school 
the plaintiff was next heir to Bachubai and entitled to succeed. 
He accordingly made a decree granting the appellant (plaintiff) 
possession of the property in dispute and directing account to 
be taken of the rents and profits. 

His judgment, after referring to Manilal Rewadat v. Bai 
Rewa (1), relied on by the plaintiff as shewing that the heir 
to succeed is the nearest to the woman herself though in her 
husband's family, and to Vijiarangum v. Lakshan (2), relied 
upon by the defendant No. 2, proceeded as follows : — 

" The decision in Vijiarangum* 8 Case (2) is undoubtedly binding 
on this Court. It is cited by Banerjee (Hindu Law of Marriage and 
Stridhan, Tagore Lectures, 1878, 2nd ed. p. 364) as in accordance 
with Kamalakar's interpretation of Vijnyanesvara's rule that the 
successive heirs after the husband would be the step-son, the 
step-grandson, the rival wife, the step-daughter, her son, the 
husband's mother, his father, his brothers, their sons, and the 
husband's other gotraja sapindas and bandhus in the order in 

(1) (1892) L L, B, 17 Bomb. (2) (1871) 8 Bomb. H. 0, R. 244; 

768. 260 0. 0. J, 



Ebsssbbai 

V. 



178 INDIAN APPEALS. [L. E. 

J. c. which they inherit his property. And this rule is as stated, 
1906 p. 362, that given in the Mitakshara for the devolution of the 
bIi property of a male owner dying without issue. 

'' The Mayukha treating of parabhashika stridhan or stridhan 
HuNSEAj proper of a widow when the marriage is in the Brahma, or other 

' unblamed form, recognizes the husband and his kinsmen as the 

heirs, basing its rule on the same text of Tajnavalkya that is 
followed in the Mitakshara on the subject, and if there be no 
husband, then the nearest to her in his own family takes it ; 
the heirs being necessarily the sister's son, the husband's sister's 
son, the husband's brother's son, the brother's son, the son-in- 
law, and the husband's younger brother in succession. Bat 
the point of bifurcation where the Mitakshara and Mayukha 
separate appears to be a point (below the widow in the series 
of successive heirs) at which the question arises as to the order 
of succession among the husband's kinsmen. 

" In Oqjabai v. Shrimant Shahajirao Malqji Raje Bhosle (1) the 
wife is spoken of as having been born again in the husband's 
family, so that, she having become half the body of her husband, 
the son of a man by one of his wives is the son of all his wives, and 
it is for this reason (2) that the step-son is treated, not as the hus- 
band's sapinda, but as an actual son of a widow whose stridhan is 
in question. It is not as a sapinda but as her own offspring that 
he takes precedence, and is the sapinda of his step-mother, who 
is therefore not to be regarded as childless. It is thus that he 
is regarded as coming in before the husband himself, owing to 
the absolute identity of the widow with her husband. This 
identity of the widow with her husband appears to have been the 
ground of decision in the case of Gojabai, and is the reason why 
the step-son in that case was held to come in even before the 
CO- widow who opposed his claims as he would apparently have 
done even before the husband. But when there are no children 
and the husband is next entitled the widow of the husband, 
being identified with him as half of his body, seems equally 
entitled to precedence before the question can arise as to who 
are the nearest heirs in default of the husband. The husband's 
kin are, I think, in view of this decision, by which I am bound, 
(1) (1892) I. L. B. 17 Bomb. 114. (2) Ibid. 120, 121. 



Eesssbbai 



VOL. XXXni.] INDIAN APPEALS. 179 

excluded by the husband himself as represented by the eo- widow J. c. 
who survived him. This seems to be in accordance with the 1906 
passage in Telang J.'s judgment, in which he observes that bIi 
according to the view of some writers the step-son or step 
grandson comes in next after the offspring of the woman herself, Hunsraj 

and before her husband ; and that according to the view of others 

he would come in after the husband, but before his other wives 
and such other wives' daughters, and, of course, before other 
more distant heirs, including the brother's son. 

'* The remarks that follow this passage indicate that it is the 
recognized identity of the wife with her husband that entitle a 
co-widow's children, and a co-widow herself, to take precedence 
respectively as sapindas of the wife herself, or as representing 
the husband himself, before resort is had to the husband's 
sapindas at all. For the above reasons I think the plaintiff is 
entitled to the relief sought." 

Hunsraj Morarji appealed, making Bai Eesserbai and Bai 
Monghibai respondents. The latter also filed objections to the 
decree under s. 561, Act XTV. of 1882 (Civil Procedure Code). 
In the High Court it was conceded that under the deed of gift 
Bachubai took a limited interest and that her legal heirs took as 
purchasers. The High Court decided that whatever class of 
stridhan the property may have been in the hands of Bachubai, 
by the terms of the deed of gift the persons entitled to succeed as 
heirs to Bachubai were the persons entitled to succeed to her 
ordinary stridhan. It held that Bai Eesserbai was not imder 
the Hindu law of the Bombay school the next heir to Bachubai's 
ordinary stridhan, and dismissed the suit with costs. 

The material portion of the Chief Justice's judgment was as 
follows : — 

" Before us for the first time it has been argued that the legal 
heir of Bachubai must be determined by reference to the peculiar 
course of descent of the type of stridhan called sulka : and this 
view has been supported before us by a very able argument 
advanced by Mr. Setlur. But there are many difi&culties in the 
way of accepting this contention. In the first place the devolu- 
tion of sulka does not correspond with the course of succession 
delineated in the deed of November 24, 1892. In the next place 



180 INDIAN APPEALS. [L. E. 

J. c. the interest of Bachubai was not (as sulka is) hereditable ; she 
1906 took merely a limited interest, and her legal heirs do not take as 
bXi such, but because they fall A?ithin the description of the donees 
Kbsskbbai m2(Jer the terms of the deed. Then, again, even if it could be 
HuNBSAj said that the limited interest taken by Bachubai under the deed 
— ' was a modernized form of sulka, it still would be a question 
whether the heirs to take under the gift should be ascertained 
by reference to that form of stridhan. The quality of the 
subject-matter does not necessarily affect the meaning of the 
word ' heirs,' and in illustration of this I may refer to Garland 
V. Beverley (1), where it was held that in a gift of gavelkind land 
to the right heir of a person, it was the right heir according to 
common law and not in reference to the descent of gavelkind 
that took under the gift. So here it is at least an arguable 
point, even if Bachubai's limited interest could be regarded as 
sulka, whether the effect of the gift to her heirs is or is not to 
be determined by reference to the exceptional course of descent 
peculiar to that particular class of stridhan. It would be unde- 
sirable to dispose of this appeal, on a point involving so much of 
doubt, which might have been cleared by evidence had it been 
raised at an earlier stage. 

"The possibilities in this direction are exemplified by Sir 
Charles Sargent's decision in the P. J. for 1893 : Chunilal v. 
Itchachand (2). Therefore I prefer to rest my opinion on the 
hypothesis (which I will assume for the purpose of this case) that 
the legal heirs indicated are those who would be entitled to 
Bachubai's ordinary stridhan. Now let me test ihe case in the 
first instance with reference to the descent of technical stridhan. 
Admittedly this case is governed by the Mayukha, which differs 
from the Mitakshara in its treatment of the descent of stridhan 
in that it imports the rule of devolution derived from the text of 
Brihaspati. This rule is not introduced absolutely, but with the 
qualification that it comes into effect on failure of the husband. 

" In the course of his judgment Batty J. refers to this rule, and 

in reference to it says 'the point of bifurcation where the 

Mitakshara and Mayukha separate appears to be a point (below 

the widow in the series of successive heirs) at which question 

(1) (1878) 9 Oh. D. 213. (2) (1893) P. J. 88. 



VOL. XXXTnO INDIAN APPEALS. 181 

arises as to the order of succession among the husband's kins- J. c. 
men.' From the succeeding passage of the judgment it would i906 
appear that the position there ascribed to the widow depends ^^ 
upon her identification with her husband in the sense there ^"ssbbbai 
indicated. But I am aware of no passage in the Mayukha that Huirs&Aj 

can be taken as a warrant for this identification, or for the con- 

elusion that when Nilakantha uses the word ' husband/ as he 
does in reference to the passage of Brihaspati, he includes in it 
the wife. Batty J., in support of this view and as authority for 
it, relies on the judgment of Telang J. in the case of Oqjabai v. 
Shahajirao (1) ; but that case turned upon the Mitakshara, and at 
pp. 122 and 128 Telang J. points this out. He there deals 
specifically with Brihaspati's text, and no doubt subjects it to 
a certain amount of criticism ; he suggests a want of harmony 
between the rule deduced by Nilakantha from Yajnavalkya and 
the enumeration of heirs in Brihaspati's text, and contends that 
some of those named in the text would not answer the descrip- 
tion of being nearest in the husband's family. But this criticism 
appears to me to lose sight of the fiction on which the text is 
based ; this is how the passage runs in the Mayukha : see 
Mandlik, p. 98, * on failure of the husband,* to ' the daughter's 
son.* This involves the consequence that the sister's son, the 
husband's sister's son, the husband's brother's son, the brother's 
son, the son-in-law, and the husband's younger brother are 
equal to sons. 

" They obviously are not sons in fact, but a fiction is here 
created whereby they stand in the position of sons, and were the 
facts in accordance with the fiction (as must be assumed), then 
there would be no inconsistency and no want of harmony. 

" It will be noticed that the fiction only arises on failure of issue 

and of the husband, but in that I can find nothing that saves 

the right (if any) of the rival widow against these fictional heirs. 

At first sight the fiction no doubt appears capricious and 

unreasonable, but it would appear to be not without foundation. 

An interesting light is thrown on this subject by Mr. Golapchundar 

Sarkar in his work on Hindu Law, pp. 328, 329. As far as I can 

learn, what he there depicts presents a substantially accurate 

(1) L L. R. 17 Bomb. 114. 
Vol. yyXTTT . 



182 INDIAN APPEALS. [L. B 

J. c. representation of relations in Bombay. The conclusion, then, to 

1906 which I come is that, as at Bachubai's death she left surviving 

^^ her a younger brother and a nephew of her husband, her rival 

Ebssbbbai ^idow cannot claim to have been her heir." 

V. 
HUKSBAJ 

MoRABJi. Cohen, K.C., and De Oruyther, for the appellant, contended 
that by the Hindu law of the Bombay school she was entitled, on 
the death of Bachubai, to succeed to the stridhan in suit as the 
deceased's co-widow. The applicable law was that which prevailed 
generally in Western India, that is, the Mitakshara controlled 
by the Yyavahara Mayukha on all points upon which those 
treatises differed. Beference was made to Collector of Madura 
V. Moottoo JRamalinga Sathupathy (1) ; Lallvhhai Bapubhai v. 
Mankuvarbai (2) ; Kriahnaji Vyanktesh v. Pandurang. (3) By 
the true construction of the deed of gift in this case Bachubai 
took an absolute estate in the property in suit as her stridhan. 
The rule of succession thereto was prescribed by the Mitakshara, 
c. ii, s. 1, verses 5 and 6, Stokes' Hindu Law Book, p. 428; c.ii.,s.ll, 
verse 1, Stokes, p. 458 ; Golapchundar Sarkar's Hindu Law 
Lectures, 1888, pp. 84, 288. The interpretation put upon these 
texts is to be found in Mussumat Thakoor Dehee v. Rai Baluk 
Ram (4), Oojabai v. Shahajirao Malqji Raje Bhosle (5), and 
Krishnai v. Shripati. (6) According to these texts the appellant 
is the preferential heir to Bachubai, who left neither husband 
nor issue of her husband, whether by herself or any co-wife, 
her surviving. The ground of her preference to her husband's 
collaterals is that she was married by one of the approved 
forms and is the nearest sapinda of her husband, therefore, by 
reason of her absolute identity with her husband as half of his 
body, the nearest sapinda of her co-widow. She represents her 
husband for the purposes of this succession. Then does the 
Mayukha control the Mitakshara on this point by laying down a 
different rule ? Beference was made to the Mayukha, c. iv., 
s. 8, verse 19 ; Stokes, p. 89, c. iv., s. 10, verses 27, 28, 30 ; Stokes, 

(1) (1868) 12 Moo. Ind. Ap. 435. (4) (1866) 11 Moo. Ind. Ap. 139. 

(2) (1876) I. L. E. 2 Bomb. 388, (5) I. L. E. 17 Bomb. 114, 117. 
417. (6) (1905) I. L. R 30 Bomb. 333; 

(3) (1875) 12 Bomb. H. 0. 66. 8 Bombay L. Eeporter 12. 



VOL. XXXm.] INDIAN APPEALS. 188 

p. 105. It was contended that the Mitakshara and Mayukha must j. c. 
be construed so as to harmonize with one another so far as that 1906 
is possible. The 28th verse did not prescribe any different "J^i 
order of succession from the Mitakshara. In that verse the heirs Kessebbai 
of the wife are described as the nearest sapindas of the wife in Hunsbaj 

the husband's family, or the nearest to her in her father's family, 

as the case may be. The list given is not exhaustive, it does 
not exclude the co-widow or any other sapinda of the husband, 
and it does not proceed on any new order of succession from that 
prescribed by the Mitakshara. So far, therefore, the Mayukha 
does not control the leading treatise. Then as regards verse 80, 
it is too uncertain in its language and meaning to be capable by 
itself of introducing a new order of succession not shewn to have 
been contemplated by verse 28. The difficulty arises with this verse 
which refers to a text of Brihaspati. But if that verse is 
construed distributively according as the woman who is the root 
of descent was married according to one of the approved forms 
or in one of the lower forms its inconsistency with verse 28 and 
with the Mitakshara can be obviated. The result will be that in 
the one case her husband's relations will succeed, in the other her 
father's relations will succeed. The text gives the two classes of 
heirs promiscuously and partially, and enumerates them in an 
order which is at variance with recognized principles of Hindu 
inheritance. By recognizing that no order of succession is 
prescribed and that two classes of heirs are mixed up together it 
is possible to construe verse 30 in a way which will not conflict with 
the earlier verse or with the Mitakshara ; and that construction 
ought, therefore, to be adopted. Beference was made to Bachha 
Jha V. Jugman Jha (1) ; Lallubhai Bapubhai v. Mankuvarbai, (2) 
See also the Dayabhaga, c. iv., s. 3 ; Stokes, p. 251 ; Mayne'sHindu 
Law, 6th ed. p. 88, ss. 600, 669 ; Shamachurn Sarkar's Vyavastha 
Chandrika, vol. ii., pp. 538, 539 ; Mitakshara, c. ii., s. 8, verse 5 ; 
Stokes, p. 448. Mohandas v. Krishnabai (3) ; Daya Krama 
Sangraha, c. ii., s. 6 ; Stokes, p. 498; Banerjee on Marriage and 
Stridhan (Tagore Lectures, 1878, p. 875 ; 2nd ed., p. 864) ; West 

(1) (1885) I. L. E. 12 Oalo. 348, in appeal (1880) L. E. 7 Ind. 212, 
351. ' 231. 

(2) L L. E. 2 Bomb. 388; S. 0. (3) (1881) I. L. E. 5 Bomb. 597. 

02 



184 , INDIAN APPEALS. [L. R 

J. C. and Btihler's Digest of Hindu Law, p. 517 ; Oojahai v. Shnkajirao 

1906 Maloji Raje Bhosle (1) ; Rahi v. Oovind Valad Teja. (2) The 

Bai result is that the Mayukha interprets the Mitakshara as meanmg, 

Kbssbbbai jjqj. j.jjg^j. jj^j, husband's sapindas inherit her stridhan, but that 

HuNSRAj her nearest sapindas in her husband's family inherit. This 

MOEABJI. . ^ 1 . J. J 

points to the co-widow by a different process from that mdicated 

in the Mitakshara, and accordingly there is no sufi&cient ground 
for saying that the order of succession prescribed by the Mitak- 
shara has been in any efficient and operative manner controlled 
by the Mayukha. Accordingly by both authorities the co-widow 
succeeds to a childless widow's stridhan in preference to her 
husband's collateral relatives, including the brother's son or 
other representative. 

Jardine, KG., and W. C. Bonnerjee^ for the first respondent, 
Hunsraj Morarji, son to the brother of Bachubai's husband, con- 
tended that, according to the Bombay school of Hindu law as 
expounded in the Vyavahara Mayukha, a co- widow cannot succeed 
to a woman's stridhan in preference to either her husband's 
younger brother or nephew. They agreed that Bachubai took 
an absolute estate in the property in suit. They referred 
to verses 28 and 30 of c. iv., s. 10, of the Mayukha, and con- 
tended that the latter controlled the former. Verse 28 was general 
in its meaning and terms, while verse 30 was more definite, 
and prescribed an enumeration of heirs and nearest kinsmen 
(after the failure of the husband) founded on the rule of devolu- 
tion which it derived from the text of Brihaspati. The widow 
comes in as sapinda to the husband under verse 28, but her pre- 
ferential claim depends upon her identification with her husband. 
That identity is the ground of a dictum in Ocjabaiv. Shiimant (3), 
to the effect that her step-son succeeds as her son before the 
husband himself, inasmuch as, on account of the step-son, she is 
not herself childless. That case, however, merely relates to the 
preferential claim of a step-son over a co- widow, and was decided 
under the Mitakshara. It is merely an obiter dictum as regards 
an issue between the co-widow and the husband or his collateral 

(1) I. L. E. 17 Bomb. 114, 121, (2) (1875) I. L. R. 1 Bomb. 97, 
123. 106. 

(3) I. L, E. 17 Bomb. U4. 



VOL. xxxin.] 



INDIAN APPEALS. 



185 



heirs. They are not excluded by the co- widow, whose identifica- 
tion with the husband is nowhere recognized in the Mayukha, or, 
indeed, by the other schools of Hindu law, except as regards 
inheritance to property belonging to him at the time of his 
death. Beference was made to Venkata Subramaniam Chetti v. 
Thayaramma (1), and to Golabchundar Sarkar's Tagore Lectures, 
pp. 828, 829 ; Daya Erama Sangraha, c. ii., s. 6 ; Stokes, p. 498; 
Dayabhaga, c. iv., s. 8, verse 82; Stokes, p. 257, and Mitak- 
shara, c. ii., s. 1 ; Stokes, p. 427 ; Mayne's Hindu Law, 6th ed., 
par. 529, p. 693 ; Rachava v. Kalingapa (2) ; LvUoobhoy v. Bap- 
poobhoy V. Cassibai (8); Nahalchand Harakchand v. Hemchand{^); 
Bachha Jha v. Jtigmon Jha (5) ; Dasharathi Kundu v. Bipin Behari 
Kundu (6) ; Hunsraj v. Bai Monghibai. (7) It was contended 
that by the true construction of verse 80 above referred to, and 
by the effect of the authorities cited, the husband's sapindas — 
those at least who ranked, like the brother's son, as fictional or 
secondary sons — were entitled to succeed to his widow's stridhan 
in preference to the co- widow. 

RoBSy for the respondent Bai Monghibai, the widow of 
another brother of Bachubai's husband, who survived Bachu- 
bai, contended that the High Court was right in holding that the 
appellant was not entitled in preference to the respondents. He 
relied specially on the cases cited from the 21st vol. of the 
Madras series and the 7th Bombay Law Eeporter ; and also 
referred to Banerjee's Tagore Law Lectures, 1878 (2nd ed.), 
pp. 387 and 388, where the text of Brihaspati is paraphrased. 
He submitted that Nilakantha must be taken to have meant by 
verse 30, that the secondary sons mentioned in that text came in 
between the husband and his nearest sapindas, and also before 
the widow's sapindas in her husband's family. According to him 
that text stated the true order of succession as between the heirs 
there enumerated, and gave precedence to all of them over those 
heirs who were ** nearest to her in her husband's family." 

Cohen, K.C, replied. 



• (1) (1898) L L. E. 21 Madr. 263, 
267. 

(2) (1892) L L. E. 16 Bomb. 716. 

(3) (1880) L. E. 7 Ind. Ap. 212. 

(4) (1884) L L. E. 9 Bomb. 31. 



(5) I. L. E. 12 Calo. 348. 

(6) (1904) I. L. E. 32 Gale. 261. 

(7) (1904) 7 Bombay L. Eeporter 
622, 627. 



J. 0. 
1906 

Bai 
Eessbbbai 

V, 

HmrsBAj 

MOBABJI. 



186 INDIAN APPEALS. [L. B- 

J. c. The judgment of their Lordships was delivered by 

1906 Lord Davey. The question in this appeal relates to the sue- 

Bai cession to immovable property in the island of Bombay, of 

kbsserbai ^Y^^Yi a Hindu lady named Kumari Bachubai died possessed. 

M^BAM ^^^ ^*® ^^^ widow of one Koreji Haridass, who died in February, 

1898. On November 24, 1892, Koreji Dass executed an ante- 

-^^y^' nuptial settlement of the property now in dispute, whereby he 
conveyed it to Eumari Bachubai, her heirs, executors, adminis- 
trators, and assigns, for ever, subject to the following 
conditions : — 

'^ 1. If the said Eumari Bachubai shall die before the said 
intended marriage has been celebrated and completed then the 
said house, land, and premises shall revert to and again become 
the absolute property of the said Eoreji Haridass, his heirs, 
executors, administrators, and assigns. 

*' 2. If the said Eumari Bachubai shall die after the said 
intended marriage has been celebrated and completed without 
leaving issue of the said intended marriage who shall succeed to 
a vested interest. in the said house, land, and premises, then the 
said house, land, and premises shall be dealt with as she may 
direct or declare by will or deed, or failing any will or deed, then 
the same shall vest in her legal heirs according to Hindu law of 
the Bombay school." 

The marriage was celebrated in February, 1898. Eumari 
Bachubai died on May 9, 1899, without leaving any issue and 
without having made any appointment by deed or will. It is 
not disputed that the persons entitled to succeed to the property 
as heirs of Eumari Bachubai were the persons entitled to her 
ordinary stridhan. The rival claimants are the appellant 
Bai Eesserbai, who was the surviving co-widow of Eoreji 
Haridass, the respondent Bai Monghibai, who is the widow of 
Banchordas Haridass, a brother of Eoreji Haridass, who survived 
Eumari Bachubai and died on June 17, 1902 (it is presumed child- 
less), and the respondent Hunsraj Morarji, who was the son of 
another brother of Eoreji Haridass, who predeceased Eumari 
Bachubai. The appellant was the plaintiff in the suit, which 
was commenced on August 4, 1902, in the High Court of 
Bombay. Batty J. decided that by the Hindu law of the 



VOL. XXXm] INDIAN APPEALS. 187 

Bombay School the appellant was the next heir to Eumari J. 0. 

Bachubai, and entitled to succeed. This decision was reversed 1906 

on appeal by the Chief Justice and Bussell J., and by their bai 

decree, dated December 11, 1908, the suit was dismissed with Kbssbbbai 

costs. HUNSRAJ 

It is stated in the judgment on the appeal that both sides — 
abandoned the view taken by Batty J. that Kumari Bachubai, 
under the deed of gift, took an absolute interest in the property, 
and that it was conceded that she took a limited interest only, 
and her heirs took as purchasers. Both the learned judges were 
also of that opinion, and their judgments are, to a certain 
extent, based on it. Their Lordships are at a loss to understand 
on what grounds this opinion was arrived at. They have no 
doubt whatever that, whether the deed is to be construed accord- 
ing to English law, as Bussell J. thought, or by Lidian law, 
Eumari Bachubai took under it an absolute estate of inheritance. 

Questions on the Hindu law of inheritance to property in the 
island of Bombay are to be determined in accordance with the 
Mitakshara, subject to the doctrine to be found in the Mayukha, 
where the latter differs from it. But, as laid down by Telang J. 
in Gqjabai v. Shrimant Shahajirao Malqji Raje Bhoale (1), " Our 
general principle should be to construe the Mitakshara and the 
Mayukha so as to harmonize with one another wherever and so 
far as that is reasonably possible." The point now imder dis- 
cussion is whether a co-widow is entitled to succeed to the 
property of a widow dying without issue in preference to her 
husband's brother or brother's son. There has been no judicial 
decision on this question, and their Lordships must decide it on 
the construction of the texts of Mitakshara and the Mayukha read 
together, with such assistance as may be afforded by other 
commentaries (though not recognized as authorities in Bombay) 
and by modern text books. 

If the case rested on the Mitakshara alone their Lordships are 
of opinion that the appellant would be entitled to succeed. 
The material texts of the Mitakshara are c. ii., s. 11, placita 8, 
9 and 11 ; Stokes, Hindu Law Books, pp. 460, 461. 

"8. A woman's property has been thus described. The 
(1) L L. E. 17 Bomb. 114, at p. 118. 



188 INDIAN APPEALS [L. E. 

J. c. author next propounds the distribution of it: *Her kinsmen 

1906 take it if she died without issue.' 

bXi "9. If a woman die * without issue/ that is, leaving no progeny 

Kbsskbbai .... the woman's property, as above described, shall be taken 
HuNSRAj by her kinsmen ; namely, her husband and the rest as will be 

* [forthwith] explained. 

** 11. Of a woman dying without issue as before stated, and 
who had become a wife by any of the four modes of marriage 

denominated Brahma, &c , the [whole] property, as 

before described, belongs in the first place to her husband. On 
failure of him it goes to his nearest kinsmen [sapindas] allied 
by funeral oblations. But in the other forms of marriage, 

called asura, &c , the property of a childless woman 

goes to her parents, that is, to her father and mother." 

There can be no reasonable doubt that according to the 
Mitakshara definition of sapinda husband and wife are sapindas 
to each other. In the case of Lalluhhai Bapubhai v. Manku- 
varbai (1) Sir Michael Westropp, after quoting a long passage 
from the Achara Kanda of the Mitakshara, said (2) : — 

" This shews that Vijnyanesvara abandoned the doctrine that 
the right to oflfer funeral oblations alone constituted sapinda- 
ship, and adopted in lieu of it the theory that sapinda-ship is 
based upon community of corporal particles, or, in other 
words, upon consanguinity, and that he maintained that there 
is such a community between the wives of collaterals." 

The learned Chief Justice then shewed that the same theory 
had been adopted by Nikalantha, the author of the Mayukha, 
and that the doctrine applied to sapinda relationship, not only 
in its ceremonial aspect, but for the purposes of inheritance 
also. It was accordingly held in that case, which arose in the 
island of Bombay, that under the law of the Mitakshara and 
Mayukha the widow of a deceased first cousin succeeded in her 
husband's place in preference to a male of a remoter degree. 
In West and Biihler (Digest of the Hindu Law of Inheritance, 
p. 518) it is stated that whether '* nearness " in the rule given 
by the Mitakshara for succession to childless widows' pro- 
perty should be determined in accordance with the succession 
(1) L L, R. 2 Bomb. 388. (2) Ibid., p. 423. 



VOL. XXXHL] INDIAN APPEALS. 189 

to the property of a male, or whether it means nearest by j. a 
relationship, the co-widow has the first right of succession, 1906 
but in the latter case concurrently with other kinsmen in the ^^ 
same degree. But, they say : " The identity of the wife with her Kbssbebai 
husband being accepted as a leading principle of the Mitakshara, hunsraj 

the rule seems, on the whole, most consonant to it whereby 

precedence in heritable relation to him gives a like precedence 
and order of succession in relation to his widow." 

And they add : " Sach appears to be the rule, too, which custom 
has preferred in this part of India." 

In accordance with these views it has been recently decided in 
a case from the Satara district, where the Mitakshara is the 
governing authority, that a co-widow succeeds to a childless 
widow's stridhan in preference to her husband's brother's son : 
Krishnabai Martand v. Shripati Pandu. (1) 

The grounds upon which it is said that the rule thus deducible 
from the Mitakshara is altered or superseded by the Mayukha 
are to be found in c. iv., s. 10, of that treatise, placita 28 and 80 
(Stokes, p. 105), which are as follows : — 

" * 28. The property of a childless woman married in the form 
denominated Brahma, or in any of the other four [unblamed 
modes of marriage] goes to her husband; but if she leave 
progeny, it will go to her daughters; and in other forms 
of marriage [as the asura, &c.] it goes to her father and mother 
on failure of her own issue.' [In the one case] if there be no 
husband, then the nearest to her, in his [tat] own family takes 
it ; and [in the other case], if her father do not exist, the nearest 
to her in [her] father's family succeeds, [for the law that :] * To 
the nearest sapinda, the inheritance next belongs,' as declared 
by Manu, denotes that the right of inheriting her wealth is 
derived even from nearness of kin to the deceased [female] under 
discussion — and, though the Mitakshara holds, * that on failure 
of the husband, it goes to his [tat] nearest kinsmen [sapinda] 
allied by funeral oblations ' ; and ' on failure of the father then 
to his [tat] nearest sapindas ' ; yet, from the context it may be 
demonstrated that her nearest relations are his nearest relations ; 
and [the pronoun tat being used in the common gender] it allows 
(1) 8 Bomb. Law Eeporter 12. 



190 INDIAN APPEALS. [L. R 

J. c. of our expounding the passage ' those nearest to him, through 

1906 her in his own family': for the expressions are of similar 

5^ import." 
Kbssbbbai "80. On failure of the husband of a deceased woman, if 
HuNSRAj married according to the Brahma or other [four] forms ; or of 

oRABJi. j^^^ parents, if married according to the asura or other two 
forms, the heirs to the woman's property, as expounded above, 
are thus pointed out by Brihaspati : ' The mother's sister ; the 
maternal uncle's wife ; the paternal uncle's wife ; the father's 
sister ; the mother-in-law, and the wife of an elder brother, are 
pronounced similar to mothers. If they leave no son born in 
lawful wedlock, nor daughter's son, nor his son, then the sister's 
son, and the rest shall take their property.' Here must be 
understood, ' on failure both of the daughter, and also of her 
daughter,' because only on failure of them does the right of 
inheritance pertain to the son bom in wedlock, or to the daughter's 
son." 

The text of Brihaspati, quoted above, is thus paraphrased by 
Banerjee J. in his Tagore Lectures (1878, 2nd ed. pp. 887 
and 888) : '' To a male the females related as the sister of his mother, 
the wife of his maternal or of his paternal uncle, the sister of his 
father, the mother of his wife, and the wife of his elder brother 
are like his mother ; and so to a female the males related in the 
reciprocal way as her sister's son, her husband's sister's son, 
her husband's brother's son, her brother's son, her daughter's 
husband, and her husband's younger brother are like her son. 
And these last-mentioned relations of a female being like her 
sons inherit her stridhana if she leave no male issue, nor son of 
a daughter, nor a daughter." 

You have, therefore, the following list of relations to the 
childless widow and deceased proprietress of the stridhan who 
are said to be like her sons, and have been called by some text 
writers secondary sons : (1.) Sister's son ; (2.) Husband's sister's 
son ; (8.) Husband's brother's son ; (4.) Brother's son ; (5.) Son- 
in-law, or daughter's husband ; (6.) Husband's younger brother. 
The chief difficulty about the text of Brihaspati is that we do 
not know the context in which it occurs. It appears to give 
promiscuously the sapindas of the husband and those of the 



VOL. XXXm.] INDIAN APPEALS. 191 

father without noticing the distinction in the devolution of the J. o. 
property depending upon the form of marriage of the deceased 1906 
widow. No intelligible principle has been discovered for the bai 
order in which they are enumerated. It is at variance with the k=»sbbbai 
settled and universally recognised principles of the Hindu law Hunsbaj 
of inheritance, and the enumeration is obviously not exhaustive. — 
Moreover, it is so expressed as to bring in the secondary sons 
immediately after the issue of the widow, for the words " if they 
leave no son," &c., are construed to refer to childless widows, 
and the description of the issue, upon failure of whom Brihaspati's 
secondary sons are to take, is neither exhaustive nor accurately 
descriptive of the order in which such issue would be entitled to 
succeed. The important question, however, is, how the author 
of the Mayukha understood the quotation. In his comment at 
the end of pi. 80 he partially supplies the gaps left in the 
enumeration of issue, but not fully. If the " son born in lawful 
wedlock" means or includes a son of a rival wife (as is said in the 
Day a Bhaga), he would take only after the husband and (if the 
order of succession be based on propinquity) concurrently with 
the rival wife : see West and Biihler, Digest, p. 518, already 
quoted. 

Nikalantha, however, clearly intends to bring in Brihaspati's 
series of secondary sons on failure of the husband or father, but 
whether immediately on that event or in what order is another 
question. Three constructions have been offered on these points. 
First, it was argued before their Lordships that the words '' on 
failure of the husband of a deceased woman " should be read as 
meaning '' on failure of the husband and his line of sapindas," 
succeeding in accordance with pi. 28. Secondly, that Brihaspati's 
series of secondary sons comes in between the husband and his 
nearest sapindas and in the order in which they are mentioned. 
Thirdly, that a distributive construction should be given to 
Brihaspati's text applying the husband's relatives named to the 
case of a woman married in one of the approved forms, and the 
father's relatives to the other case only, and the text should be 
read as illustrative only, and neither exhaustive nor intended to 
prescribe the order in which the enumerated heirs take. 

It does not appear to their Lordships possible to adopt the first 



Eebssbbai 

V. 



192 INDIAN APPEALS. [L. E. 

J. c. of ihese constructions without doing unnecessary violence to the 

1906 language and context. The words in pi. 80 are : " On failure of 

b][7 tl^® husband .... the heirs to the woman's property as 

expounded above are thus pointed out by Brihaspati." The 

HuNSBAj quotation from Brihaspati, therefore, was intended to be used in 

MOBABJI. 

— the Mayukha as explanatory or expository of the class of heirs 
already pointed out in pi. 28, and not as substitutive for them or 
as superseding them. Again, some of the husband's sapindas 
are included in Brihaspati's series, which seems decisive against 
this construction. 

What may be described as a modified form of this construction 
is that adopted by Batty J. That learned judge held that the 
point of bifurcation where the Mitakshara and Mayukha separate 
appears to be a point below the widow in the series of successive 
heirs, and that it is the recognized identity of the wife with her 
husband that entitles a co- widow's children and a co-widow her- 
self to take precedence as sapindas to the wife herself or as 
representing the husband himself before resort is had to the 
husband's sapindas at all. The Chief Justice says that he is 
aware of no passage in the Mayukha that can be taken as a 
warrant for the identification of the wife with her husband. It 
seems, however, difficult to maintain this position in face of the 
learned judgments of Sir Michael Westropp and West J. in the 
case of Lallubhai Bapubhai v. Mankuurbaiv, and the judgment of 
Telang J. in Gqjabai v. Shrimant Shahajirao Maloji Raje Bhosle. (1) 
According to the second construction the text of Brihaspati is 
read in what is no doubt its more obvious and literal sense apart 
from the context. It is that adopted by the Chief Justice and 
supported by the respondents in the present appeal, and it has 
considerable authority in its favour, including the Daya Bhaga, 
the Viramitrodaya, and Vyavastha Chandrika, and, amongst 
modern text writers, West and Biihler, Banerjee J., and 
Mr. G. Sarkar. In the Daya Bhaga, however, it is said that 
if the order of succession were according to Brihaspati's text it 
would be contrary to the opinion and practice of venerable 
persons, and that the text is propounded " not as declaratory of 
the order of inheritance but of the strength of the fact," whatever 
(1) I. L. B. 2 Bomb. 388 ; S. 0. in appeal L. E. 7 Ind. Ap. 212, 231. 



VOL. XXXm.] INDIAN APPEALS. 193 

those words may mean. Notwithstanding the weight of the J. o. 
authority in its favour, their Lordships cannot bring themselves 1906 
to think that the construction contended for by the respondents 3^ 
is the one wTiich they ought to adopt. So far from construing Kbssbbbai 
the Mitakshara and the Mayukha so as to harmonize with one hunsbaj 

another so far as that is reasonably possible, the respondents 

place them in direct conflict, and not only so, but the Mayukha 
is also divided against itself. Flacitum 80 deals as well with the 
case of a widow married in one of the approved forms as with 
that of a widow married in one of the lower forms, and is 
expressed to be expository of the rule laid down in pi. 28. But 
some of the enumerated heirs are not blood relations of the 
husband at all, or members of his family, and others of them 
are not blood relations of the widow's father, or members of his 
family. Again, those who are nearest (both as regards degree of 
propinquity and in order of inheritance) are postponed in favour 
of those who are more remote in contradiction alike of the 
Mitakshara and pi. 28 of the Mayukha. 

The case of Oqjabai v. ShrimantShahajirao MalqjiRajeBhosle (1) 
related to the succession to the stridhan of a childless Hindu 
widow married in one of the approved forms, who left her 
surviving (1.) a co- widow, (2.) the grandson of another co-widow, 
(3.) a son of her husband's brother. The case fell to be decided 
in accordance with the Mitakshara, and the decision was in favour 
of the step-grandson, whether he was to be described as the 
husband's nearest sapinda or the wife's nearest sapinda in his 
family. But the texts of the Mayukha now under consideration 
had been relied on in argument, and the judgment of Telang J. 
contains a valuable disquisition on that commentary. '' Con- 
struing the Mitakshara in the sense which Nilakantha places 
upon its language " (pi. 28), the learned judge says : " The wife 
having by her marriage been * born again in the husband's family,' 
and having become ' half the body of the husband ' the sapindas 
of the husband necessarily become her sapindas, and their degrees 
of propinquity to the husband and wife must be held to be 
identical unless some specific reason to the contrary is shewn." 

The judgment of the learned judge also contains the following 
(1) L L. B. IT.Bomb. 1X4. 



194 INDIAN APPEALS. [L. R. 

J. c. passages : " In truth even the rule which Nilakantha himself 

1906 deduces from Yajnavalkya's general text is not in harmony with 

bZ[ ^^6 enumeration of heirs contained in the text of Brihaspati now 

Kbsskbbai micler consideration. And yet the Mayukha does not say how 

HuNSRAj the two are to be made to stand together. The learned authors 

MOBABJI. 

— of the Digest have placed the heirs enumerated by Brihaspati 
after the husband and before the woman's sapindas in her 
husband's family. This certainly appears to be warranted by 
the express words of the Mayukha contained in placitum 80. 
Yet it is not quite reconcileable with the previous declaration in 
placitum 28 that ' if there be no husband then the nearest to 
her in his family takes * the woman's property. It is quite plain 
that some of the persons referred to in Brihaspati's text do not 
answer to this description at all, while of those that do the 
husband's brother's son is not obviously nearer than the 
husband's younger brother, and yet according to Brihaspati's 
text the former would stand before the latter. It cannot there- 
fore be assumed to be quite clear according to the view of the 
Mayukha that Brihaspati's list states the true order of succession 
as between the heirs enumerated or that all those heirs take 
precedence over the ones included under the designation ' nearest 
to her in her husband's family.' " 

And again : '^ But Mr. Bhandarkar argued that the heirs specifi- 
cally named in Brihaspati's text ought to be given precedence over 
those who come in under the general designation, each group of them 
taking precedence in the class (viz., that of husband's kinsmen 
or parent's kinsmen) to which it belonged. There is, however, 
no authority for this view. In West and Biihler's Digest the 
precedence is given to the whole of the enumerated heirs, and 
the ground for such precedence has already been stated. If they 
are not treated as one class there is apparently no other ground 
for the preference than is indicated by the principle mentioned 
in the Vyavahara Mayukha, c. iv., s. 8, pi. 18. But that 
principle, as there expressed, appears to be intended to apply 
only where there is a * compact series.' This Court in Mohandas 
V. Krishnabai (1) declined to apply it in the case of bandhus so 
as to give to the bandhus expressly named a preference over 
(1) LL. B. 3Bomb.597, 



VOL. XXXnL] INDIAN APPEALS. 195 

those who come in under the general definition. I think this is j. c. 
the authority which would be more applicable in the matter 1906 
before us, and no such preference of the designated persons can ^^ 
therefore be allowed in this case." Kbssbbbai 

The case of Baehha Jha v. Jugmon Jha (1), on the other hand, hunsbaj 

was a judicial decision on the text of Brihaspati now under 

consideration. It was there held that the stridhan property of 
a widow governed by the Mithila law and married in one of the 
approved forms, goes to her husband's brother's son in preference to 
her sister'sson. It appears from the judgment of the Court that the 
vakil for the appellant had relied on that portion of Batnakava 
which treats of stridhan. The learned judges observe that that 
book is DO doubt one of considerable authority in the Mithila 
school, and if the matter were clear upon what Batnakara says 
on the subject, they should, perhaps, have no dij£culty in 
deciding the matter. The author of Batnakara (it appears) in 
the passage relied on cited the text of Brihaspati now under 
consideration, with the following commentary, viz., " The 
meaning is that in default of the son and the rest, the sister's 
son, &c., shall take the property of their mother's sister and 
others." The learned judges refer to other commentaries in 
which the same text of Brihaspati is cited, and they quote an 
opinion attributed to Mr. Golebrooke, in which it is stated that 
by some commentators a distributive construction of the text is 
adopted, the three relations in Brihaspati's enumerated heirs 
who are so through the husband taking the property in the one 
case, and the three who are so through the father taking the 
property in the other case. And after discussing the placita in 
the Mayukha dealing with the subject they say they are inclined 
to think that what the author meant to lay down was that the 
succession of the heirs mentioned in Brihaspati's text is to be 
taken to be subject to the rule of law laid down by him in accord- 
ance with the Mitakshara, as suggested in *' Shama Churn's 
Vyavastha Chandrika," vol. ii., p. 539. Ultimately, the case was 
decided in accordance with the Mitakshara, on the ground that the 
meaning and effect of the text of Brihaspati quoted by Batnakara 
was too ambiguous to control the plain meaning of that work. 
(1) I. L. E. 12 Oalc. 348. 



196 INDIAN APPEALS. [L.E. 

J. c. The Chief Justice answers the argument that some of the 

1906 persons enumerated in Brihaspati's text as heirs do not answer 
bXT ^^^ description of being the nearest in the husband's family by 
Kbssebbai saying that this criticism loses sight of the fiction on which the text 
HuNSRAj is based, which, he says, involves the consequence that the persons 
-^— ' enumerated are equal to sons. With great respect, this is not 
what is said, or apparently intended, by the text. They do not 
take concurrently with sons, and no text-writer has even sug- 
gested that they take concurrently with each other, as they 
would do if they were all equal to sons, or to be treated as sons. 
The analogy appears to their Lordships to be purely fanciful and 
not based on any discoverable principle. Nor is it in accordance 
with the fact. The kinship of the husband's brother's son is 
not derived through the wife of the husband's brother, but 
through the husband's brother himself. 

It is apparent from the judgments above quoted that the 
learned judges did not treat the application of Brihaspati's text, 
or the meaning of the author of the Mayukha in quoting it, as 
settled by authority, either as regards the place in the succession 
of the enumerated heirs or the order in which they are to take. 
It would perhaps be suflScient for their Lordships to say, in 
accordance with a well settled principle of construction, that the 
unambiguous direction in pi. 28 of the Mayukha is not con- 
trolled by a subsequent text, the language of which is of such 
uncertain meaning as that contained in pi. 80 of the same work. 
But following out the line of thought suggested in the judg- 
ments quoted above,, their Lordships think that a construction 
may be put on the language of pi. 30 of the Mayukha, which 
will bring it into harmony with the Mitakshara, and also recon- 
cile it with the previous placitum of the Mayukha itself. They 
are of opinion that the text of Brihaspati should be read dis- 
tributively as regards the property of women married according 
to one of the approved forms, and the property of those married 
in one of the lower forms. In the one case, those of the heirs 
enumerated by Brihaspati who are blood relations of the hus- 
band, viz., the husband's sister's son, and the husband's brothers' 
son, and the husband's brother, will succeed to the woman's 
property, and in the other case the relations of the father will 



VOL. XXXm.] INDIAN APPEALS. 197 

succeed. In the diversity of opinion amongst the text- writers j. c. 
whether Brihaspati's series of heirs take in the order in which 1906 
they are enumerated, their Lordships think that the better ^ 
opinion is that the order of succession is not indicated. There ^^ssbrbai 
is no apparent reason for preferring the husband's sister's son Hunsraj 

to the husband's brother's son, or both, to the husband's brother. 

And their Lordships agree with the learned editor of the 
Vyavastha Chandrika that the solution is to be found by 
reference to pi. 28, in which the heirs are described as the 
nearest sapindas of the wife in the husband's family, or the 
nearest to her in her father's family, as the case^may be. The 
hst is not exhaustive, and neither a co- widow, nor any other 
sapinda of the husband, is excluded. The words " and the regt " 
therefore must mean, or include, the other relations of the hus- 
band or father. But if the text does not prescribe any new 
order of succession, and the co- widow is not excluded, it follows 
that she must take in her right place, or (in other words) the 
appellajit is entitled in preference to the respondents. Their 
Lordships thus arrive at the same conclusion as Batty J., though 
by a somewhat different road. 

If there were any construction of the text laid down by 
authority binding on the Courts of Bombay, or if there were any 
established practice or usage in the application of the text, their 
Lordships would follow it without hesitation, though it might 
not commend itself to their judgment. But no such authority 
has been referred to, and there is no evidence of any such 
practice or usage. Their Lordships therefore are at liberty, and 
are bound, to act on the opinion which they have formed, and 
will humbly advise His Majesty that the appeal be allowed, and 
that the order of the High Court of Bombay (appeal side), 
dated December 11, 1903, be discharged, and the decree of 
Batty J., dated February 21, 1903, be restored, and that the 
respondents do pay to the appellant the costs of their appeal 
in the High Court. They will also pay the costs of this appeal. 

Solicitors for appellant : Ashurst, Morris, Crisp dt Co. 
Solicitors for Hunsraj Morarji : Payne d Latt ey. 
Solicitors for Bai Monghibai : Rawle, Johnstone d Co, 
Vol. XXXm. P 



198 INDIAN APPEALS. [L. E. 



J.c.» CHANDRASANGJI HIMATSANGJI .... Defendant. 

^6 AND 

^7u^ 22^' MOHANSANGJI HAMIRSANGJI Plaintiff. 

ON APPEAL FBOM THE HIGH COURT AT BOMBAY. 

Action in Ejectment — lasue as to alleged Personation by Plaintiff — Admissibility 
and effect of ex parte Official Inquiries. 

In an action brought in 1894 by tlie presumptive collateral heir to a 
deceased Hindu to recover his estate from the appellant as having been 
substituted for the real heir, who was admittedly bom in 1881, but was 
alleged by the plaintiff to have died in 1883, it appeared that a former 
suit had been brought in 1885 by the then collateral heir against the 
appellant and others for a similar purpose after his pleader had, in 
furtherance of a criminal charge of personation against the appellant's 
mother, instituted with the assistance of the authorities two secret and 
official inquiries with the object of either preventing or proving the 
crime charged. 

The First Court dismissed the suit, the alleged substitution not having 
been proved ; but the High Court considered that the plaintiffs case 
was supported by ** overwhelming circumstantial evidence," meaning 
the proceedings at and the results of the said inquiries : — 

Held, allowing the appeal, that having regard to the purpose, the 
nature and the circumstances of the said inquiries, which were not in 
any sense judicial, but were made ex parte in order to obtain support 
to a foregone conclusion, the said proceedings and results were not, even 
if admissible, entitled to any weight. 

Appeal from a decree of the High Court (March 7, 1899), 
reversing a decree of the Assistant Judge at Broach (November 
10, 1897). 

The question decided was one of fact, about which the two 
Courts below differed. It was whether the Chandrasangji, who 
was the admittedly legitimate son of Himatsangji, the Thakor of 
Matar, and Bai Jitba his wife, born at Jadsal, in the native State 
of Eajpipla on October 31, 1881, died at Majrol, in theGaikwar's 
territories, on May 14, 1888 ; and, if he did so die, whether the 
above-named appellant Chandrasangji Himatsangji was really 
Jiku, a son of Bai Jitba's brother Farbhat Bapu, and was 
substituted by Bai Jitba for her dead son. 

* Present: Loud Macnaghten, Snt Andrew Sooblb, Sir Arthxj* 
Wilson, and Sir Alfred Wills. 



VOL. xxxm.] 



INDIAN APPEALS. 



199 



Parikh and Doherty^ for the appellant, contended that there 
was no sufficient evidence to prove the death, as alleged, of the 
admitted heir, or of his being personated by the appellant. The 
High Court had overruled the decision of the First Court entirely 
on the ground of statements contained in certain documents, and 
resulting from certain official inquiries made some years pre- 
viously which were ex parte and in no sense judicial. These 
were improperly admitted in evidence : see s. 86 of the Indian 
Evidence Act. Beference was made to Rajah Leelanund Singh 
V. Lakhputtee Thakorain (1) ; Samar Dasadh v. Juggulkishore 
Singh (2) ; Satischunder Mukhopadhya v. Mohendrolal Pathuk (8) ; 
Ponnammal v. Sundaram Pillai (4) ; Zemindar of Ramnad v. 
Perianayagum (6) ; Rani Lekraj Kuar v. Mahpal Singh. (6) 

The respondent did not appear. 



J. c. 

1906 

SANGJI 
HlMAT- 
BANOJI 

V, 

Mohan- 

SANGJI 

Hamib- 

SANGJI. 



The judgment of their Lordships was delivered by 

Sib Arthur Wilson. This is an appeal from a judgment 
and decree of the High Court of Bombay, dated March 7, 
1899, which reversed a decree of the Assistant Judge of 
Broach of November 10, 1897. The question raised is one 
of fact, whether the appellant Chandrasang, the principal 
defendant in the suit, is entitled to the name he bears, and 
to the estates which prior to the suit he had long enjoyed, 
as the son and heir of Himatsang, or whether, a^ maintained 
by the plaintiff in the suit, now the respondent, the real 
Chandrasang died in infancy and the appellant was fraudulently 
substituted in his place. The First Court held the appellant to be 
the genuine Chandrasang ; the High Court thought otherwise. 

Himatsang, who died on January 20, 1882, was the Thakor of 
Matar, and as such was possessed of estates in the district of 
Broach and in Baroda territory, which by custom descended to a 
single male heir in accordance with the rule of primogeniture. 
He left surviving him four widows, of whom the first three were 
childless, while the fourth, Jitba, had an infant son, Chandrasang, 
bom on October 81, 1881, a few months before his father's death ; 



1906 
June 22 



(1) (1874) 22 Suth. W. E. 231. 

(2) (1895) L L. E. 23 Calc. 866. 

(3) (1890) I. L. B. 17 Oalc. 849. 



(4) (1900) I. L. E. 23 Madr. 499. 

(5) (1874) L. E. 1 Ind. Ap. 209. 

(6) (1879) L. E. 7 Ind. Ap. 63. 

P2 



200 



INDIAN APPEALS. 



[L. B. 



J.O. 

1906 

Ghakdba- 

SANGJI 
HiMAT- 

8ANGJI 

V. 
MOHAK- 

SANOJI 

Hamib- 

8ANGJI. 



and there is no question that this son was his father's lawful heir. 
Himatsang also left surviving him collateral agnates in two lines. 
The elder line was represented by Parbhatsang, who would have 
been the nearest heir of Himatsang if the infant had been out of 
the way. He died in July, 1888, and his rights, if any, passed 
to his grandson Ghhatrasang, who in turn died in 1885 ; and 
with him the elder line of collaterals became extinct, and its 
rights, if any, passed to the second line. The second collateral 
line was represented at first by Hamirsang, and after his death 
in 1894 by his son Mohansang, the plaintiff in this suit and 
respondent in the present appeal. 

Upon the death of Himatsang the title of his infant son 
Ghandrasang was at first not disputed ; the conflict was as to the 
administration of his estate. But as soon as that controversy 
was settled, Parbhatsang claimed the estates as his own, on the 
allegation that Himatsang had really died childless, and that 
Ghandrasang was a child, of other parentage, fraudulently put 
forward as the child of Jitba and as the heir of her husband. 

From that time — that is to say, from March, 1882, down to June, 
1884 — this story was the only basis of the claims put forward. It 
is now clear, indeed it is the case of both sides, that that story 
was untrue. Its only present importance is in its bearing upon 
the good faith or bad faith, the probability or improbability, and 
thus upon the truth or falsehood of another case, based upon 
events said to have happened at a later period. It is therefore 
unnecessary to examine the earlier proceedings in detail; but 
three points may be usefully noted : First, the early claim was 
by the elder collateral branch ; the four widows supported the 
rights of the infant, and the then representative of the junior 
collateral branch sided with them. Secondly, the Gollector of 
Broach was in possession of the estates as guardian of the pro- 
perty of the infant, duly appointed by an order of Court. 
Thirdly, though in July, 1882, criminal proceedings were insti- 
tuted before the Political Agent Bewakantha, they were with- 
drawn ; and no suit was ever brought to enforce the claim on the 
ground now referred to adversely to the infant. That state of 
things continued down to May, 1884, two years and a quarter 
after the death of Himatsang. 



VOL. xxxrn.] 



INDIAN APPEALS. 



201 



The second ground of claim to the property, which is the 
ground now in question, arises out of events alleged to have 
occurred on and immediately after May 14, 1888, on 
which day, it had been alleged, on behalf of the successive 
claimants, that the boy Ghandrasang died, and that another boy, 
by name Jiku, a son of Jitba's brother, and a boy considerably 
older than Chandrasang, was fraudulently substituted in place 
of the deceased. This story was not told in place of the former 
complaint that Ghandrasang himself was a spurious child, for 
that story was still maintained for some time by the successive 
claimants, though it is now abandoned. The story of the 
alleged death and substitution on May 14, 1888, was in addition 
to this story. 

In 1884 Parbhatsang, the original head of the senior collateral 
line, was dead, and his grandson Ghhatrasang had succeeded to 
his place. In the middle of May, 1884, he entered into an 
arrangement with one Eurnaram, a pleader of the District Gourt 
of Broach, in pursuance of which the latter at once took active 
steps to further the interests of his employer. 

On May 80, 1884, Eurnaram made an application for 
assistance to the GoUector of Broach. He asserted the death of 
Chandrasang, and alleged the intention to substitute another boy 
in his place. In accordance with that application the GoUector 
took steps which led to certain investigations and inquiries, the 
result of which has had an important bearing upon the decision of 
the case by the High Gourt. But as these matters will have to 
be considered in some detail at a later stage it is unnecessary to 
examine them at this point. 

On September 8, 1884, Ghhatrasang made a complaint 
to the first-class magistrate at Broach against Jitba on a charge 
of cheating by personation, the charge being based upon the 
alleged death of Ghandrasang and substitution of Jiku. The 
magistrate took depositions on oath, and considered the matter 
once and again. His conclusion was that the story was untrue, 
and that there was no reasonable ground for a criminal prose- 
cution, and accordingly on June 10, 1885 he finally dis- 
missed the complaint under s. 208 of the Griminal Procedure Gode. 
That order was confirmed by the District Magistrate, and the 



J. 0. 

1906 
Chakdba- 

SANQJI 
HiMAT- 
SA^GJI 

r. 
Mohan- 

SANGJI 

Hamib- 

SAKSJI. 



202 



INDIAN APPEALS. 



[L.B. 



J. C. 

1906 
Chandra- 

SAKGJI 
HlMAT- 
SAKOJI 

V. 
MOHAK- 
SAKGJI 

Hamir. 

SANGJI. 



High Court on November 25, 1885, refused to interfere by way 
of revision. 

While the criminal proceedings just mentioned were pending, 
on April 16, 1885, Chhatrasang brought a civil suit against 
Ghandrasang and others, in which he alleged the death of the 
real Ghandrasang and the substitution of Jiku into his place 
and name, and asked for declarations of the spuriousness of the 
so-called Ghandrasang, and of the validity of his own title as 
heir. Various delays occurred. Ghhatrasang died leaving no 
male issue, and his rights, if any, passed to Hamirsang, the 
head of the junior collateral line, and the latter was substituted 
as plaintiff. The Collector of Broach had to be added as a 
party, and the plaint had to be returned in order that it might 
be presented in another Gourt. That suit was never tried on the 
merits. It came on before the Assistant Judge of Broach on 
March 26, 1888, for the disposal of certain issues of 
law, and was dismissed for want of a proper stamp. The 
Assistant Judge said: "As the plaintiff still persists in 
declaring that his suit is one for a mere declaration, and that 
it is properly stamped with a stamp of Rs.lO, the only course 
open to me is to dismiss the suit with costs.'' Against this 
decision there seems to have been no appeal. 

From August, 1898, till near the end of 1894, negotiations 
were in progress for a compromise between the parties interested, 
but nothing came of them. It may be noted, however, that 
during the progress of those negotiations the appellant was 
married, and the principal ceremony on the occasion was per- 
formed by Hamirsang, whose son the respondent is, and through 
whom he claims. 

On December 12, 1894, the present suit was instituted 
by the respondent against Jitba, the alleged mother, and the 
appellant her reputed son, and others, including the Collector of 
Broach as administrator of the Matar estates. Its material 
allegations were that Jitba gave birth to Ghandrasang on 
October 81, 1881, that Ghandrasang died in his infancy in 
June, 1888, in the village of Majrol, in Baroda territory, and 
that Jitba, with the aid of others, concealed the death of 
Ghandrasang, and in his place kept with her her brother's 



VOL. XXXTlt.] 



INDIAN APPEALS. 



son, whose real name was Jiku, giving him the false name of 
Ghandrasang. The plainti£f asked for a declaration that the 
appellant was not the son and heir of Himatsang, and a 
declaration that the plaintiff, now respondent, was entitled to 
the properties in Broach, and that the Collector should deliver 
him possession. The allegations just quoted were denied, and 
thus was raised the sole issue now of any importance. 

At the trial before the Assistant Judge the story told was 
that, on May 14, 1888, Ghandrasang was removed by his 
mother, accompanied or followed by certain persons named, 
in a cart from Matar to Majrol in Baroda. (That mother and 
child left Matar is admitted, but it is said for' Ghhaliar.) It is 
asserted that on the road the child became dangerously ill, 
that he died at Majrol the same evening, that his body was 
at once sent for burial, and that the now appellant, said to be 
Jiku, was sent for and arrived on May 16, and from thence- 
forth was held out as the genuine Ghandrasang. The genuine 
child was at that time aged two and a half ; Jiku, it was said, 
was at the same time some six or seven years old. 

The direct evidence in support of the case so stated was that 
of three witnesses, as to each of whom the judge at trial recorded 
that his evidence was unsatisfactory and untrustworthy, and he 
totally disbelieved them. He also disbelieved the subsidiary 
story of an alleged attempt made almost at the same time to 
obtain another child, presumably less unsuitable in age. 

The Assistant Judge dismissed the suit with costs. The High 
Gourt, upon appeal, reversed that decision and gave a decree in 
favour of the plaintiff, the now respondent, but without costs, 
and against that decision the present appeal has been brought. 

The story told is in itself one dij£cult to accept. The attempt 
to substitute a boy of Jiku's age for a child of two and a half years 
would be an extraordinarily daring one, the more so because 
no attempt appears to have been made to keep the boy in 
seclusion, or screen him from general observation. 

The fact that the judge, who heard and saw the witnesses, and 
whose very full judgment shews the great care and attention 
which he devoted to the case, disbelieved the witnesses is 
entitled to the utmost weight. 



J. a 

1906 
Chakdea- 

8ANGJI 
HiMAT- 
SANGJI 

V. 
MOHAir- 
SANGJI 

Hamib- 

SAN6JI. 



204 



INDIAN APPEALS. 



[L. E. 



J.G. 

1906 

Ghandra- 

SANGJI 

HlMAT- 

SANGJI 

V. 

Mohan- 

SAITGJI 

Hamib- 

8A17GJI. 



Again, it is impossible to approach the story now told without 
a certain suspicion, arising from the attack so long maintained 
upon the real parentage of the Chandrasang now admitted to be 
the genuine child of Himatsang. And this suspicion is neces- 
sarily increased by the inconsistent and shifty conduct of the 
now respondent and his immediate predecessor in title. 

The extraordinary length of time which was allowed to elapse 
after May 14, 1883, the date upon which everything turns, and 
December 12, 1894, wnen the present suit was filed, is also a 
circumstance very adverse to the respondent. During all that 
interval, with the exception of a part of 1893 and 1894, when 
negotiations for a compromise were in progress, there was never 
a time at which proper steps might not, and ought not, to have 
been taken to secure a full trial of the question in issue ; and 
that question is one which from its nature specially required to 
be disposed of while the facts were fresh. When a suit was 
brought in 1885 it was never pressed to a trial, but allowed to 
terminate for want of proper stamp duty. The whole course of 
proceedings from 1883 to 1894 seems to their Lordships difficult 
to reconcile with a reasonable desire, on the part of the claimants, 
to have the question of fact investigated before the proper tribunal, 
and with proper promptitude. 

In his judgment upon the appeal to the High Court Candy J. 
said : " The question is whether the Majrol story is proved. It 
stood the test of the cross-examination of the witnesses in the 
witness-box, but after this lapse of time much more than that is 
necessary before the Court can eject the second defendant from 
the estate. The story must be supported by overwhelming cir- 
cumstantial evidence." That support, the learned judges thought, 
was supplied by the result of the inquiries made in June, 1884, 
by two officials, the Thanedar of Panpu in Eewakantha and the 
Mamlatdar of Amod in Broach. Those inquiries have been 
briefly referred to in an earlier part of this judgment, but, inas- 
much as they formed the substantial ground upon which the 
High Court overruled the judgment of the First Court, they call 
for further consideration. 

On May 30, 1884, Kurnaram, the pleader acting on behalf of 
Ghhatrasang, applied to the District Magistrate of Broach for 



VOL. XXXIII.] 



INDIAN APPEALS. 



205 



assistance, and accordingly the magistrate wrote a letter to the 
Political Agent Eewakantha, which he entrusted to Kurnaram. 
The terms of that letter explain the circumstances. It ran : 

" Mr. Kurnaram Durgaram Vakil, the bearer, has just informed 
me that the heir of the Matar Thakore died about nine months 
ago, and that there is now at Chhaliyar, in the Darbar, a boy 
whom they intend to substitute for the dead boy. 

" Mr. Kurnaram acts for the presumptive heir of the Thakore. 
He says that if inquiries are at once made at Chhaliyar the fraud 
will be detected, because the deceased Ghandrasang was born at 
Kartik Sud, 9th of 1938, that is about two and a half years ago, 
whilst the young pretender is about eight years old. Also that 
the latter's parents are living in Nandod. 

" For the present I do not wish to make the matter public by 
searching for details in my oflSce. But I shall be much obliged 
if you will have the goodness to make inquiries at your earliest 
convenience, so that it may be fixed what boy is asserted to be 
heir and what is his age, otherwise a boy of the proper age might 
be found. Mr. Kurnaram is furnished with full particulars. I 
request that you will favour me with the result of your inquiries.'* 

This letter was taken by Kurnaram to the Political Agent, who 
on its receipt gave instruction to the Thanedar of Pandu, Par- 
bhuram by name, to take with him Kurnaram and make the 
desired inquiries in his presence, and to report. 

Parbhuram and Kurnaram went together to Chhaliar. There 
they are said to have taken a statement from the boy himself, 
statements from three other persons, a schoolmaster, a chobdar, 
and a kharbhari, and to have, with the assistance of others, 
formed the opinion that the boy was about seven years old, and 
to have caused him to be measured, with the result that his 
height was found to be three feet six inches. 

Parbhuram made his report to the Political Agent, enclosing 
the statements said to have been made in his presence, and a 
punchnama said to have been signed on behalf of the mem- 
bers of what was called a punch, which was composed in 
fact of two sowars in attendance on Parbhuram. Kurnaram 
was dead before the trial. The evidence of Parbhuram was taken 
on commission. The schoolmaster was a witness at the trial. 



J. 0. 

1906 
Chandra- 

SANOJI 

HlMAT- 

. SAVOJI 

V. 
MOBAN- 
SANGJI 

Hamib- 

SANOJI. 



206 



INDIAN APPEALS. 



[L. n. 



J. C. 

1906 

Chandba- 

SANOJI 
HlMAT- 
SANOJI 

V. 
MOHAN- 
8ANOJI 

Hamib- 

SANOJI. 



The chobdar and the kharbhari were not called, nor were the 
two sowars. 

The inquiries at Chhaliar went no further, the boy being 
removed by his mother to Matar. Thereupon the District Magis- 
trate gave another letter to Kurnaram addressed to the Mamlatdar 
of Amod, in the district of Broach, in which he appears to have 
instructed the Mamlatdar " to make the inquiries Mr. Kurnaram 
may suggest as secretly and rapidly as possible and allow the 
Darbar people no time to commit a fraud in regard to a 
boy whom the vakil asserts the Darbar have attempted to 
substitute for the real Thakore, who it is alleged died some 
months ago." 

In accordance with that order the Mamlatdar, accompanied by 
Kurnaram, proceeded to make inquiries. He is said to have 
taken a statement from Jitba, the boy's alleged mother, and at 
Kurnaram's suggestion to have caused a measurement to be 
taken with a tape measure of the boy's height while he was lying 
on a cot, and that height was said to be found to be three 
feet five and a half inches. 

When the case was before the High Court, and again on the 
argument of the appeal before their Lordships, objection was 
taken to the admissibility in evidence of much of the materials 
relating to the two inquiries just mentioned, and as to some of 
them at least it would apparently be very difficult to support 
their admissibility if it were necessary to decide the point. But 
the whole evidence seems to have been admitted without objection 
in the First Court, and their Lordships would have ^regretted if 
they had been obliged to dispose of the present appeal upon a 
question of legal admissibility, and the more so as the appeal 
has been heard ex parte. Their Lordships are not under any 
such necessity, because they think that, assuming the evidence to 
be admissible, it is of little, if any, value. This appears to them 
to follow from the purpose, the nature, and the circumstances 
of the inquiries. 

The District Magistrate received information from Kurnaram 
which he apparently believed, and which, if true, shewed that a 
grave crime was being, or was about to be, committed, which, if 
successful, would result in a great wrong with respect to 



VOL. xxxni.] 



INDIAN APPEALS. 



207 



properties in his district ; and their Lordships do not doubt that 
that officer acted rightly in taking such steps as seemed to him 
necessary, in the emergency, for the prevention of the crime. 
But it must be observed that those inquiries, if they can be called 
official in any sense, were certainly not judicial. The effect of 
the orders was to place the services of the officials employed at 
the disposal of Eumaram, the pleader of the complainant, in 
order to enable that gentleman to obtain material in support of 
a foregone conclusion. The inquiries were secret ; no notice was 
given to anybody on behalf of the boy. Nobody was present 
throughout the inquiries to represent the boy or protect his 
interests. There was nobody to check the mode in which 
the alleged statements were elicited, whether by leading 
questions or otherwise, nobody to test the statements by 
cross-examination, nobody to watch the accuracy with which 
they were recorded. 

Upon these broad considerations, and without examining in 
detail the various inconsistencies and defects in the records and 
in the evidence relating to the inquiries, their Lordships are of 
opinion that practically no weight can properly be given to the 
proceedings at, or the results of, those inquiries. 

As to the alleged statement by the boy himself, assuming it to 
be correctly reported, there is nothing to shew whether, the 
language is in any part his own, or whether it was put in his 
mouth by the person conducting the examination ; and nothing 
could be easier than to extract by the latter process almost 
any statement from a frightened child, who suddenly finds 
himself alone in the custody of strangers, and some of them 
officials. 

The alleged deposition of Jitba, so far as it was relied upon, 
refers to matters of which she could have no personal knowledge. 

The evidence as to the apparent age of the boy, and as to the 
alleged measurement of his height, appears to their Lordships, 
on the grounds already stated, to be wholly untrustworthy. And 
in this they find themselves in agreement with both the magis- 
trates who dealt with the criminal charge in 1884 and 1885 and 
with the judge who tried this case. 

Their Lordships will humbly advise His Majesty that the 



J. 0. 

1906 

Chandba- 

SANOJI 
HlMAT- 
SANGJI 

r. 

MOHAK- 
SANGJI 

Hamib- 

SANOJI. 



208 



INDIAN APPEALS. 



[L. B. 



J. 0. 

1906 

Ohaitoba- 

SANOJI 

HlMAT- 

SANGJI 

V, 

Mohan- 

SANGJI 

Hamib- 

SAKGJI. 



decree of the High Court should be discharged and the suit 
dismissed with costs in both the Courts in India. The respondent 
must pay the costs of this appeal. 

Solicitor for appellant : E. Pagden. 



INDEX. 



ACKNOWLEDGMENT OF LIABILITY: See 

Limitation. 2. 

ACT II. OF 1884 : See Jubisdiction op High 

COUBT. 

ACT I. OF 1889, b. 22 (4) : See Pbactice. 1. 

ACT VI. OF 1889, n, 2: See Oudh Land 
Revenue Act, 1876. 

ACT XV. OF 1877, b. 2, Sch. II., Art. 144 : See 
Limitation. 1. 

ACT XV. OF 1877, b. 19 : See Limitation. 2. 

ACTION IN EJECTMENT— 7««t^ as to alleged 
Personation, by Plaintiff— Admissibility and 
effect of ex parte Official Inquiries. 

In an action brought in 1894 by the pre- 
sumptive collateral heir to a deceased Hindu to 
recover his estate from the appellant as having 
been substituted for the real heir, who was 
admittedly born in 1881, but was alleged by the 
plaintiff to have died in 1883, it appeared that a 
former suit had been brought in 1885 by the 
then collateral heir against the appellant and 
others for a similar purpose after his pleader 
had, in furtherance of a criminal charge of per- 
sonation against the appellant's mother, insti- 
tuted with the assistance of the authorities two 
secret and official inquiries with the object of 
either preventing or proving the crime charged. 

The First Court dismissed the suit, the alleged 
substitution not having been proved ; but the 
High Court considered that the plaintiff's case 
was supported by " overwhelming circumstantial 
evidence," meaning the proceedings at and the 
results of the said inquiries : — 

Held^ allowing the appeal, that having regard 
to the purpose, the nature and the circumstances 
of the said inquiries, which were not in any 
sense judicial, but were made ex parte in order 
to obtain support to a foregone conclusion, the 
said proceedings and results were not, even if 
admissible, entitled to any weight. Chandba- 

SANGJI HIMATSANGJI V. MOHANSANGJI 

Hamibsangji 198 

ADMI88ISILITT AND EFFECT OF EX PASTE 
OFFICDU. INQTTIEIES : See Action 
IN Ejectment. 

ADMISSION OF OPEN AND GTTBBENT 
ACCOUNTS : See Limitation. 2. 

APPEALABLE AMOUNT : See Pbactice. 4. 



APPELLATE 0BDEB8 OF THE OOVEBNOB 
OF BOMBAY IN COUNCIL: See 

Bight of Appeal to the King in 
Council. 

APPLICATION TO STAY EXECUTION PEND. 
INO APPEAL : See Pbactice. 5. 



BENAMI : See Pbactice. 3. 

BENGAL BEOULATION VUI. OF 1819, B. 8, 

Clause 3 : See Govebnment Revenue 

PAYABLE by PUTNIDAB. 

BOND SET ASIDE : See OuDH Land Revenue 
Act, 1876. 

BRITISH POLITICAL TRIBUNALS IN A 
FOREieN STATE : See Right of 
Appeal to the King in Council. 

BENGAL ACT Vn. OF 1880, w, 12, 16, 17, 2Ar^ 

Bengal Act IX. of 1880, s. \^—Sale in Execu- 
tion of a Certificate — Certificate and Sale set 
aside by the Bevemte Authorities — Suit by Pur* 
chooser — Jurisdiction — Limitation. 

Where a sale was made under Bengal Act 
VII. of 1880 of the respondent's estate in execu- 
tion of a certificate granted by a deputy collector 
in respect of a fine imposed on the respondent 
for non-compliance with a notice under s. 16 of 
the Cess Act (Bengal Act IX. of 1880), and the 
appellant was put in possession as purchaser, it 
appeared that the Board of Revenue subse- 
quently to the sale decided that the fine was 
unjust and set aside the certificate, and that 
thereafter the Commissioner annulled the sale. 

In a suit by the respondent against the 
appellant to set aside the sale and recover 
possession : — 

Held — (1.) the Revenue authorities had juris- 
diction to make the orders setting aside the 
certificate and annulling the sale, their power of 
supervision in that respect under Act VII. of 
1880 (see ss. 17 and 24) being of the widest 
possible character ; 

(2.) The period of limitation prescribed by 
ss. 12 and 16 is inapplicable to the exercise of 
revisional jurisdiction ; 

(3.) The proper remedy for the purchaser, if 
aggrieved by the orders of the Revenue authori- 
ties having been made in his absence, was to 
apply for rehearing, and it was too late to apply 
for a remand on that ground. Laliteswab 
Singh v, Mohunt Ganesh Das - - 184 



210 



INDEX. 



[IND. App. Vol. XXXIII. 



BEKeAL ACT IX. OF 1880, b. 16: Sea Bengal 
Act VII. OF 1880, 68. 12, 16, 17, 24. 



GHABGE ON THE UTTEBESTB OF GO-MOBT. 
GAeOBS: See Tbanspek op Pbopektt 
Act. 

CEBTIFIGATE AND SALE SET ASIDE BY THE 
BEYENTTE ATTTHOBITIES : See Ben- 
gal Act VII. OP 1880, 88. 12, 16, 17, 24. 

GIYIL PBOGEDUBE GODE, b. 4S2.—Q)mpromi8e 
on behalf of a Minor in a Suit — Practice, 

Civil Procedure Code, 8. 462, which prohibits 
a compromise on behalf of a minor by his 
guardian in a suit without the leave of the 
Court, is not complied with unless it is shewn 
that leave was formally given after the attention 
of the Court had been directly called by petition 
or otherwise to the fact that the minor was a 
party thereto. In the absence of evidence to 
• that effect the compromise must be declared not 
binding on the minor, who should be remitted 
to his original rights. Manohab Lal v. Jadu 
Nath Singh - 128 

GIYIL PBOGEDUBE GODE, B. 696: See Pbac- 
tice. 3. 

GOMPBOMISE ON BEHALF OF A MINOB IN A 

SUIT: See Civil Pbocedubb Code, 
8. 462. 

GONGUBBENT FINDINGS OF FAGT : See Prac- 
tice. 1. 

GONSIDEBATION : See Mahomedan Law. 

GONSTBUGTION: 

See Government Revenue Payable 
by putnidab. 
Hindu Law. 
Limitation. 2. 
Mortgage. 

Mortgage by Conditional Sale. 
OuDH Land Revenue Act, 1876, 

c. 8. 
Transfer op Property Act, s. 95, 

GONTBIBUTION : See Transfer of Property 
Act. 

GOUBTS ESTABLISHED BY THE EXEGUTIVE 
FOB POLITICAL PUBPOSES: 

See Right of Appeal to the King 
IN Council. 



DEGBEE FOB LOAN AND BEABONABLE 
INTEBEBT: See Oudh Land Revenue 
Act, 1876. 

DEGBEES OF GOUBTS OF POLITIGAL AeENTS 
IN KATHIAWAB: See Right of 
Appeal to the King in Council. 



EJEGTMENT BY MOBTGAOOB: ^^ Mortgage 
BY Conditional Sale. 

EYIDENGE OF eiFT : See Practice. 3. 



FAKILY ABBANOEMENT: See Management 
of Hindu Temple. 

eiFT DEPENDENT ON YALIDITY OF ABOP- 
TION: See Hindu Will in favour 
OP Adopted Son. 

eOYEBNMENT BEYENUE PAYABLE BY 

YJHHBUDKBL.— Bengal Regulation VIII. of 1819, 
«. 3, clause 3 — Bent payable to the' Landlord — 
Conttruction of Xabulyats, 

Where payment by the putnidar of the Govern- 
ment revenue is on the trae construction of the 
kabulyats part of the consideration rendered by 
the putnidar for the enjoyment of the tenure, ana 
there is no stipulation that it is to be dealt with 
in the same manner as rent :— 

Heldy that the Government revenue so payable 
by the putnidar was not rent payable to the 
landlord within the meaning of Putni Regula- 
tion VIII. of 1819, s. 3, clause 3, and was not 
recoverable as such by sale under the Regula- 
tion. Maharajah Bahadar Sir Jotindra 
MOHUN Tagore V, Srimati Bibi Jarao 
KUMARI 80 

eBANTEES WnXINe TO PEBFOBM 8EBYI0E 
TENUBE8 : See Service Tenures. 



DEED OF GIFT : See Mahomedan Law. 

DEFENDANTS' APPABENT ADOPTION : 

Limitation, l. 



See 



HINDU ULW— Power to Adopts Congtruotion^ 
Power to adopt Successive Sons, 

Where a Hindu has granted to his widow a 
power to adopt and has placed no specific limi- 
tation thereto, and it is clear that he desired to 
be represented by a son after death in order to 
secure 'Spiritual benefit to himself and to con- 
tinue his line : — 

Held^ that the widow's authority to adopt is 
not exhausted by a first adoption, but that, on 
the death of the first adopted son, the adoption 
of a second is a valid exercise of the power. 

KANNEPALLI SURYANARATANA V, PUCHA Vbn- 
EATA KAMANA 146 

HINDU LAW OF ADOTTlOlX-^Brusband's Autho- 
rity to his Widow to Adept — Bights and Duties 
of Widow, 

All the schools of Hindu law recognise the 
right of the widow to adopt with her husband's 
authority, which may be given either orally or in 
writing, and when given must be strictly pur- 
sued. She cannot, however, be compelled to act 
upon it unless and until she chooses to do so, and 
in the absence of express direction to the con- 
trary, there is no limit to the time within which 
she may exercise the power conferred upon her. 

Case in which upon oral evidence, in refer- 
ence to which the Courts below differed, their 
Lordships found that the authority to adopt was 
given and strictly pursued. MUTSADDI LAL v. 
KuNPAN Lal M 

HINDU LAW OF INHEBITANCE IN BOXBAY 

— Stridhan — Mitakshara^ c, ii., «. 11, verses 8, 9, 
aTid II— Mayukha^ c, iv., *. 10, verses 28 and 30 



Ind. App. Vol. XXxill.] 



IIJDBX. 



fill 



HlirOV LAW OF IVHSEITAirCSUr BOKBAY 

— continued. 
— Hindu Widow dying without Issue — Prefer- 
ential Rights of Co-widow — Claims of Husband's 
Brotlier or his Son, 

Qaestions on the Hindu law of inheritance to 
propeltj in the island of Bombay are to be 
determined in accordance with the Mitakshara, 
subject to any varying doctrine contained in the 
Mayukha, ascertained after construing both 
treatises so as to harmonise with one another 
wherever and so far as that is reasonably pos- 
sible. 

By the Mitakshara, c. ii., s. 11, yerses 8, 9« 
and 11, a Hindu co- widow is entitleid to succeed 
to the stridhan of a widow dying without issue 
in preference to her husband's brother or brother's 
son. 

The Maykuha, c. iv., s. 10, yerses 28 and BO, 
does not on its true construction alter or super- 
sede the doctrine of the Mitakshara. By the 
former verse her heirs are described as her 
nearest sapindas in her husband's or her father's 
family according to the form of her marridge. 
The CO- widow is not excluded, nor is any new 
order of succession prescribed. She takes, there- 
fore, in the order prescribed by the Mitakshara. 
That unambiguous direction cannot be controlled 
by the uncertain language of verse 30. The 
true construction of that verse, bringing it into 
harmony with verse 28 and the Mitakshara, is 
that the relations of the husband or the father 
succeed according to the form of marriage ; but 
the list of heirs is given promiscuously, and is 
not exhaustive, nor is there any indication of an 
intention to alter or supersede the order or suc- 
cession previously prescribed. Bai Kessebbai 

V, HUNSBAJ MOBABJI - - - - 176 

HUTDU WIDOW DTIHe WITHOUT ISSTTE : 

See Hindu Law op Inhbbitancei in 
Bombay. 

Enron will in fayottb of adopted son 

— Entry in Wajih-ul-arz — Persona designata — 
6Hfi dependent on validity of Adoption. 

Assuming that a clause in the wajib-ul-arz 
in suit recoMed under Act XIX. of 1878 can be 
treated as a will by the Hindu who signed it in 
favour of his adopted son : — 

Held, that from a consideration of the de- 
scriptive words used after the ceremony of adop- 
tion had been effected, it was not the intention 
to give to him as a persona designata, but as an 
adopted son capable of inheriting by virtue of 
his adoption, and that the gift was dependent on 
the validity of the adoption. 

Whether an entry in a wajib-ul-arz can be 
treated as a will depends in every case on the 
circumstances in which the entry was made and 
the construction it receives from extrinsic evi- 
dence. MUSAMMAT LALI V. MUBLI DHAB 97 

HUSBAND'S ATTTHOBITT TO HIS WIDOW TO 
ADOPT : See Hindu Law op Adop- 
tion. 

ILLEGAL POSSESSION BY MOBTeAeEE : See 

MOBTGAGE BY CONDITIONAL SALE. 

INDIAN CONTEAGT ACT, b. 16 : See Oudh 
Land Bvebnue Act, 1876. 



ISSUE AS TO ALLEGED PEBSONATION BY 

PLAINTI7F: See AoTioN IN Eject- 
ment. 

JUBISDICTXON OF HIGH QOM'S.T— Clause 13 of 

Cfiarter of 1865 — Superintendence over Residents 
Court at Aden — Order removing Suit — Act II. of 
1864. 

Held, that under Act II. of 1864 (India) the 
Court of the Resident at Aden is subject to the 
superintendence of the High Court of Bombay, 
which, under clause 13 of its charter of 1865, 
has power to remove and try and determine as a 
Court of extraordinary original jurisdiction a 
suit concerning land in Aden brought in the 
Court of the Political Resident in that place. 
Municipal Offices, Aden v. Hajee Ismail 
Hajee Allana 88 

JUBISDIGTION : See Bengal Act, Yll. of 
1880, ss. 12, 16, 17, 24. 

LANDS NOT LIABLE TO BE8UMPTI0N: See 
Sebyice Tenubes. 

LIMITATION— /9ui^>r Possession—DefendaiU^s 
apparent Adoption — Act XV. of 1877, *. 2, 
Sch. II., AH. 144. 

Where the respondent, who attained majority 
in June, 1906, sued in May, 1899, to recover the 
taluqa in suit as next heir under Act I. of 1869, 
s. 22, clause 6, and the defendant defended his 
position after the lapse of twelve years under an 
apparent adoption, which both Courts had held 
to be invalid : — 

Held, that there was no acquisition of title 
by the defendant within the meaning of s. 2 of 
Act XV. of 1877 ; that the Limitation Act of 
1871 did not apply ; and that the suit was barred 
by art. 144 of the second schedule to the Act of 
1877. 

Jagadamba Chowdhrani v. Dakhina Mohv/n 
(1886) L. R. 13 Ind. Ap. 84, distinguished. 
Thakub Tibbhuwan B ahadub Singh v. Raja 
Rameshab Bakhsh Singh - - - 166 

2. Act XV. of 1877, s. 19— Acknowledg- 
ment of lAaMlity — Admission of open and current 
Accounts — Construction. 

Objections having been filed to a debtor's 
application as an executor for probate of the 
will of his deceased creditor, the debtor replied 
in a written statement signed by himself before 
the statutory period had run out and containing 
these words : ** For the last five years he had 
open and current accounts with the deceased. 
Tbe alleged indebtedness does not affect his right 
to apply for probate " : — 

Held, in a suit to recover an admitted balance 
of account from the debtor, that this was a 
suflBcient acknowledgment of his liability within 
the meaning of s. 19 of Act XV. of 1877. It was 
a clear admission of open and current accounts, 
that either party had a right to an account, and 
that whoever turned out to be debtor was bound 
to pay. 

In re River Steamer Co., MitchelVs Claim 
(1871) L. R. 6 Ch. 822, to the effect that a con- 
ditional promise to pay, the condition being 
performed, is a binding acknowledgment of 



212 



INDEX. 



[IND. App. Vol. XXXIII 



LlMlTATlOlf—caTUinued. 

debt, approved and held applicable to the con- 



struction of the Indian Act. 

BUPCHAND 



Manieam V, Seth 



And see Bengal Act VII. pf 1880, 88.12, 
16, 17, 24. 

MAHOMEDAN LAW— Deed of CHft— Possession 
— Ckmsideration. 

By Mahomedan law the holder of property 
may aliene it by deed of gift, accompanied by 
delivery of the thing given, so far as it is 
capable of delivery ; or by deed of gift coupled 
vnth consideration, in which case, although 
delivery of possession is unnecessary, yet actual 
payment of the consideration must be proved, 
and also a bona fide intention on the part of the 
donor to divest himself in praesenti of the pro- 
perty and to confer it on the donee. 

In a suit to set aside a registered deed of gift 
purporting to be for consideration : — 

Held^ that on the evidence, it was proved 
that no consideration passed or was intended to 
pass ; that the plaintifE did not intend to give 
the property to the defendant (except subject to 
a reservation expressed in the deed) ; that the 
deed was not followed by delivery of possession ; 
and, conse(j[uently, that the deed was fictitious 
and void. Chandhei Mehdi Hasan v. 

MuHAMMED Hasan 68 

MAKAeSMENT 07 HINDU TEMPLE— ^r^i^ 
of Management — Family ArrangeTuent — Scheme 
proved by tmbroken Usage for Nineteen Years* 

The office of manager of a Hindu temple was 
vested by inheritance in eight male descendants 
of the last holder by his two wives, four by each. 
One member of each branch held office for one 
year in alternate succession till 1881 — 2, when the 
four members of the junior branch, including 
the appellant, relinquished their claim in favour 
of the respondent, a member of the senior 
branch. 

In a suit by the respondent against the 
appellant in effect to assert his term of office 
under this family arrangement : — 

Held^ that an unbroken usage for nineteen 
years was, as against the appellant, conclusive 
evidence thereof. The parties were competent to 
make it, for it involved no breach of trust ; and 
it must hold good until altered by the Court or 
superseded by a new arrangement. Bamanathan 
Chetti t?. MuEUGAPPA Chetti - - 139 

MATTJKHA, c. IV., 8. 10, verses 28 and 30 : See 
Hindu Law of Inhebitancb in 
Bombay. 

KITAKSHABA, c. ii., b. 11, verses 8, 9 and 11 : 
Se^ Hindu Law op Inhebitancb, 
Bombay. 

KOBTQA0E — Construction — TJsvfr%ctuary 
Clause controlled hy the Context, 

Where the prima facie meaning of one clause 
in a mortgage deed was that the mortgagee 
entering into possession accepts the profits in 
lieu of interest : — 

Held, in a suit for redemption, that by the 
true construction of this clause it was qualified 
by other clauses which should be read in con- 



MOBTQAGE— ^(;»)^ Inved. 

junction therewith and not rejected for incon- 
sistency, and that the mortgagor was liable to 
make good the deficiency of profits, with com- 
pound interest on the amount thereof. Jawahik 
Singh v. Someshae Datt - - - 42 
MOBTGAOE BT CONDITIOKAL SALE— Om- 
struction— Regulation XVII. of 1806 — J^ect- 
ment by Mortgagor — Illegal Possession by 
Mortgagee — Effect of entry in Wajib-uUarz as 
to Custom, 

On September 28, 1866, a Mahomedan, since 
deceased, executed a deed of mortgage for 
B8.2000, repayable without interest in five 
years, hypothecating the two villages in suit as 
security. 

On May 11, 1871, he executed a second deed 
in favour of the mortgagee, reciting the former 
one, the approaching expiration of the period of 
five years without repayment, and an agreement 
to extend the period by a further thirty years 
upon terms that if the mortgagor should die 
within the fixed period then " after me the 
whole share of zamindari, . . . hypothecated as 
above shall be considered as a complete sale " to 
the mortgagee, who, on becoming entitled to and 
possessed of the property, should be bound to 
make provision thereout for the maintenance of 
certain male members of the mortgagor's family. 

In a suit by the plaintiffs, as widow and 
daughter of the mortgagor, to eject the appellant 
claiming under the mortgagee, who had on the 
death of the mortgagor obtained possession and 
mutation of names as absolute purchaser : — 

Held — (1.) That on the evidence the plain- 
tiffs were widow and daughter as alleged : 

(2.) That an entry in a wajib-ul-arz was 
insufficient by itself to establish a custom to 
exclude them from inheritance ; 

(3.) That, on the true construction of the 
mortgage and Begulation XVII. of 1806, the 
property did not on the death of the mortgagor 
vest in the mortgagee as absolute purchaser ; 

(4.) That he took possession as a trespasser 
and could be sued by the mortgagor in ejectment 
without offering to redeepa. Sheikh Hub Ali v. 

Wazie-un-nissa 107 

ONUS FBOBAKDI AS TO IBBEaVLABITY : 
See Registeation op Will. 

OTTDH LAND BEVENXTE ACT, 1876, e. viii.- 

Construction — Rights of Disqnalijied Proprietor ; 
— Right to Cimtract Debts — Indiaii Contract Ad^ 
s. 16— Act VI. of 1899, s. 2— Bond set aside- 
Decree for Loan and Reason/ible Interest. 

According to the true construction of c. viii. 
of the Oudh Land Revenue Act, 1876, there is 
no prohibition, either express or necessarily 
implied, of a disqualified proprietor contracting 
debts or borrowing money. But he may not, 
without the sanction of the Court, create any 
charge upon his property. 

In an action upon a bond executed by a dis- 
qualified proprietor, without the sanction of the 
Court : — 

Held, that he was not incompetent to execute 
it, but that the position of the parties was such 
that the lender was ** in a position to dominate 
the wdl " of the borrower within the meaning 
of s. 16 of the Indian Contract Act as amended 



tub. afp. tol« xxxm.] 



XNDS2. 



1^13 



OXTDH LAVD EBVUUJi ACT, IVtB—eontinued, 
by B. 2 of Act VI. of 1899 ; and that he used 
that poeition so as to obtain an unfair advantage. 

Tnere haying been conoarrent findings of fiMct 
that the compoand interest stipulated was 
unoonscionable, and also that simple interest at 
18 per cent, per annum would not hare been 
high:— 

Held, that the bond sned on must be set 
aside, but that there should be a decree for the 
principal sums actually lent, with simple interest 
at that rate. Dhanipal Das v. Raja Manb- 
BHAB Baksh Singh IIB 

PSBSOHA DESIGKATA : See Hindit Will ik 
Favoub of Adopted Son. 

PXTinOK FOB BPXCIAL LEAVE: See 

PSAOTIOB. 2. 

P0S8E8BI0H : See Mahomedan Law. 

P0W2B TO ADOPT : See Hindu Law. 

POWER TO ADOPT BTTCCEBSiyE B0K8. See 
Hindu Law. 

TUACTLCH—Cancurrent Findings of Fact^ 
Act 1 of 1869, *. 22 (iy— Treated in all respects 
as a Son, 

Concurrent findings of fact that the appellant 
had not been treated in all respects by his 
maternal grandfather as his own son, within the 
meaning of s. 22 (4) of Act 1 of 1869 ; and that, 
according to the custom of the family, a 
daughter's son does not succeed to the property 
of his maternal grandfather, will not be dis- 
turbed. 

Umrao Begam t. Irshad Husain, (1894) L. B. 
21 Ind. Ap. 163, followed. KuNWAL Sanwal 
SiNQH r. Rani Satbupa Kunwar • - 68 

8. Petition for Special Leave-^Beasons 

of High Court for refusing Certificate. 

Where a certificate for leave to appeal is 
refused by the High Court it is desirable that 
the reasons should be stated. Yenoanat 

SWABOOPATHIL VALIA KAMBIDI AYBBGAL V, 

Chbbakxtnnath 67 

8. Suit to set aside TransaotUm on the 

ground of Dementia — Undue Influence— Benami 
— Evidence of Oift, 

A Mahomedan mother transferred nearly the 
whole of her estate or its proceeds to her 
daughter, partly by actual transfer and partly 
by purchases with the sale proceeds in the 
daughter's name. 

In a suit by her son after her death to set 
aside these transactions on the ground of 
dementia : — 

Held that, dementia not being proved, the 
plaintiff could not succeed on the ground of 
undue influence which had been neither alleged, 
nor investigated, nor proved ; 

Held^ farther, with regard to purchases in 
her daughter's name with the sale proceeds, and 
to transfers for consideration which was never 
paid, that the resulting inference that they were 
benami transactions was rebutted by the evidence 
of gift, and by the proved intention to exclude 
the son from inheriting. Ismail Mussajes 
Mookebdum V, Hafiz Boo - . - 86 
Vol. xxxttt. 



nLLCnfftt-^eewtinued. 

4. Appealable Amount — Scot, 696, 

C a P.. 

Where a plaintiff by his plaint claimed 
damages above the appealable^ amount, and the 
suit was dismissed without any determination as 
to the amount recoverable, and leave to appeal 
was refused by the High Court under s. 696, 
Civil Procedure Code, their Lordships granted 
special leave in that behalf. MouLYl Mahomed 

IKBAMUL HUQ V, WiLKIB - - - 106 

See Civil Pbokjadube Code, s. 462. 

8. Application to Stay Fxeeution pending 

Appeal, 

Where on an application for stay of execution 
the High Court had indicated an opinion that 
the same ought to be granted, an Order in 
Council to that effect was made on an under- 
taking by the petitioners to file their petition 
and case within a fortnight from the arrival of 
the record, with leave to the respondent to apply 
to the High Court for the appointment of a 
receiver, or for payment into Court, or other 
relief. Y abudbya Modeliab v. Shadaoopa 

MODELIAB 188 

And see CiYlL Pboobdubb Code, s. 462. 

PEEFEBEHTIAL BIOHTB OF 00-WIDOWSB. 

See Hindu Law op Inhebitanoe 

IN BOMBAT. 

BEA80N8 OF HIGH COUBT FOE EEFir8IV0 
CEBTIFIOATE. See Pbactiob. 2. 



See Tbanspeb op Pbopbbtt 



BEDEMPTION. 

Act. 

EEOISTEATION OF WILL— Presumption tJuU 
it is duly effected — Onus prohandi as to irregu' 
larity — Evidence as to Character of identifying 
Witnesses, 

Under the Registration Act the registration 
of a will is performed in the presence of a com- 
petent official appointed to act as Registrar, 
whose duty it is to attend the parties during the 
registration and see that the proper persons are 
present and are competent to act and are 
identified to his satisfaction : — 

Held^ that it will be presumed that all things 
done befoi'e him in his official capacity and 
verified by his signature have been done duly 
and in order ; and that the evidence in this case 
was insufficient to prove that a deliberate fraud 
upon him had been successfully committed. 
Evidence as to the general reputation and 
character of the two identifiers of the testator 
before the Registrar, whose signatures were 
proved, is inadmissible to throw doubt upon the 
bona fides of the transaction. GANaAMOYi 
Debi v. Tboiluokhya Nath Chowdhby - 60 

EEOTTLATIOir XVII. OF 1806. See Mobtoagb 
by Conditional Sale. 

BEKT PAYABLE TO THE LAITDLOBD : See 

Goyebnment Revenue Payable by 
putnidab. 

EIGHT OF APPEAL TO THE KUTO IH 
COVKCIL — Appellate Orders of the Oovernor of 
Bombay in Council — Decrees of Courts of 
Political Agents in Kathiawar — British Politi- 
cal Tribunals in a Foreign State — Courts 

a 



S14 



IKDBX. 



[Inh. App. Vol. TCXXITI. 



BIOET OF APPEAL TO THE KlVe IV 

COVSCIL-— continued, 
established by the UxectUive far Political Pur- 
poses — Suits to enforce and Redeem a Mortgage, 
The intention of the British Goyemment is 
and always has been that the jurisdiction 
exercised in connection with the province of 
Eatkiawar should be political and not judicial 
in its character ; the ultimate appeal lieing to 
the Secretary of State for India in Council. 
Eathiawar is not as a whole within the King's 
dominions. It has been controlled by the 
British Indian Government for a very long 
period in different degrees in its various com- 
ponent States, but has never been treated as 
British territory or as subject to the laws in 
force in the Bombay Presidency or enacted by 
the British Indian Legislature. Nor has there 
been any authoritative assertion of territorial 
sovereignty therein. A system of judicial 
administration has been established therein, not 
by legislation, but by orders of the Executive 
Government, the judicial officers being Assistant 
Political Agents, with an appeal to Political 
Agents to deal with cases both political and civil. 
In the former cases their functions are ** diplo- 
matic and controlling," deciding as they "think 
proper"; in both the intention of the Govern- 
ment is and has been that the jurisdiction 
exercised should be guided by policy rather than 
by strict law : — 

Held accordingly in two suits, one classed as 
civil to enforce a mortgage, and the other classed 
as political to redeem a mortgage, brought in the 
Courts of Assistant Political Agents in Kathia- 
war, that an appeal does not lie from appellate 
orders therein passed by the Governor of Bom- 
bay in Council to His Majesty in Council. 
Hemchand Deyohand V, AZAM Sakarlal 
Chhotamlal. 

BIGHT TO GONTBACT DEBTS: See OuDH 
Lajstd Be venue Act, 1876. 

BIGHTS AND DUTIES OF WIDOWS: See 

Hindu Law of Adoption. 

BIGHTS OF DISQUALIFIED PBOFBIETOB : 

See OuDH Land Revenue Act, 1876. 

BALE IN EXECUTION OF A CEBTIFIGATE : 

See Bengal Act VII. of 1880, ss. 12, 
16, 17, 24. 

BEBVICE TESnSVEA—QraTitees willing to per- 
ffyrm them — Lands not liable to Resumption, 

A zemindar has no right to resume grants of 
land which have been made subject to a burden 
of service, so long as the grantees or holders are 
willing and able to perform the services incident 
to their tenure, whether they are required or not. 

Rajah Leelawimd Singh v. Thahoor Mtmoortm- 
jun Singh, (1873) L. R. Ind. Ap. Supp. Vol. 181, 
followed. 

Upon an 'issue of fact whether a grant was 
on a service tenure or in lieu of wages, it ap- 
peared that no designated office was conferred, 
but an obligation of a feudal character was 
imposed, that when services were exacted they 



BEBYIOE TBNUBBS— <NmMiMe{. 

were paid for in money, that a nniform rent had 
been paid for 120 years without alteration, that 
the lands had descended by inheritance, in either 
case without any claim of interference, and that 
there had been no instance of an attempt to 
resume :^ 

Held^ that it was established that the lands 
were held on a fixed tenure, and were not 
resmnable. Sbi Raja Venkata Nababimha 
Appa Rao Bahadub Zbmindab Gabu v. Sbi 
Raja Sobhanadbi Appa Rao Bahadub 

Zbmindab 46 

BTBIDHAN : See Hindu Law of Inhbbitanob 

IN Bombay. 
SUIT FOB FOSSES ION: iS^« Limitation. 1. 
SUIT TO SET ASIDE TBANSACTION ON THE 

GROUND OF DEMENTIA: See Peac- 

TIOB. 3. 

SUITS TO ENFOBGE AND BEDEEH A MOBT- 

OAOE: See Right of Appeal to 

THE Kino in Council. 
SUPEBINTENDENGE OVEB BESIDENTS' 

GOUBTS AT ADEN : See Jubisdiction 

op High Coubt. 

TBANSFEB OF FBOPEBTT ACT, s. W^Con- 
struction — Charge on the Interests of Go-mort- 
gagors — Redemption — Contribution, 

Sect. 95 of the Transfer of Property Act says 
that '' where one of several mortgagors redeems 
the mortgaged property and obtains possession 
thereof," he has a charge on the shares of his 
co-mortgagors for contribution to his expenses 
'^ in so redeeming and obtaining possession " : — 

Heldy that the section must be construed 
distributively, and that the charge follows on 
redemption ; the condition of obtaining pos- 
session applies only to cases in which its fulfil- 
ment is from the nature of the mortgage 
possible. 

Where one of three mortgagors paid off the 
mortgage debt in full and then sued the other 
two to recover the whole amount paid with 
interest alleging that he was a surety only : — 

Held^ that on failure to prove an agreement 
of suretyship he was nevertheless entitled to 
recover two-thirds, and that although neither he 
nor the original mortgagee had obtained pos- 
session of the mortgaged property the decree 
ought to give him a charge on the respondents' 
interests therein. Malik Ahmad Wali Khan 
V. Musammat Shamsi Jahan Begam - 81 
TBEATED IN ALL BESFECTS AS A SON: See 

Pbaotice. 1. 
TUBES OF MANAGEMENT: See Manage- 
ment OF Hindu Temple. 

UNDUE INFLUENCE : See Pbaotice. 3. 
USUFBUGTUABT CLAUSE CONTBOLLED BY 
THE CONTEXT : See Mobtgagb. 

WAJIB-UL-ABZ : See Hindu Will in pavoub 
OF Adopted Son and Mobtgagb by 
Conditional Sale. 



BRADBUBT, AOHBW, A GO. LD., PRINTKRS, LONDON AMD TONBBIOOB. 



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