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'J - -

,^'

'^^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

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

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

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

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

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 ....

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

I Ind. L. E. 22 Oalc. 680

PAGE

. 148
. 148

. 33

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

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

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

TABLE OP OASES OITED.

[Ind. Ap.

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

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

PAGE

. 121
. 16

^ 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

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

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.

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

161

100,

142
177
104

•

183,

194

• •

148

168,

160

121,

124

168

135

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

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

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

3 A. C. 889 . . .9

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

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.

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

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

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

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

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

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

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

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.

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

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^.

Officer,
Aden

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

iNtolAK APPEALS.

[L. fi.

Officer,
Aden

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.

Offiobb,
Aden

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

INDIAN APPEALS.

[L. fi.

J. C.
1905

Municipal

Opficeb,

Adbn

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

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.

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.

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

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%

INDIAN APPEALS.

[L. E.

J.O.
1905

EUNWAS

Sanwal
Singh

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

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

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

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.

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.

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.

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

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

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

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

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

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

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.

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

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

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

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.

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

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

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

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.

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

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

MOHAK-
SANGJI

Hamib-

SANOJI.

208

INDIAN APPEALS.

[L. B.

J. 0.

1906

Ohaitoba-

SANOJI

HlMAT-

SANGJI

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

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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