This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world's books discoverable online.
It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.
Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the
publisher to a library and finally to you.
Usage guidelines
Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:
+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.
+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.
+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.
+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.
About Google Book Search
Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web
at |http : //books . google . com/
7 z 5
Vol. 1X.^Ikd. A a
THIS
INCORPORATED COUNCIL OF LAW REPORTING
WOBL
ENGLAND AND WALES.
iHaembers of tt)e (BounciL
Chairman — Joseph Bbown, Esq., Q.0#
EX'OFFICIO MEMBERS.
SiE Henbt Jambs, Knt, M.P. . . Attoenby-Geneeal.
SiE Fareeb Herschbll, Knt., M.P» . Solioitob-Gboteal,
ELECTED MEMBEBS.
Me. Seejbant Simon, M J>. | g . ^^^^ j^
Mb. Seejbant Pulling )
W. B. Glassb, Esq., aO. j Lincoln's Inn.
HoEACB Davet, Esq., Q.O., M.P. )
Sib John Blossett Maulb, Knt., Q.O. | mi
^ ^ r\r\ Inner Temple.
Aethub Chaeles, Esq., (ci.0. J
Joseph Beown, Esq., Q.O.
Alfeed Wills, Esq., Q.C.
John A Russell, Esq., Q.O.
William Obaoeopt Fooks, Esq., Q.O.
Middle Temple.
Gray's Inn.
WILLL&.M Williams, Esq. (Firm— Messrs. Ourrie, \
Williams, & Williams), Lincoln's Inn Fields ( Incorporated
John Hollams, Esq. (Firm-Messrs. HoUams, Son, I Law Society.
& Coward), Mincing Lane, E.O. /
Secretary— A hMXA Thomas Hopwood, Esq., 10, Old Square,
Lincoln's Inn.
THE
LAW REPORTS.
irnder fha Sapezintendaaoe and Control of tbo
niOOBPOSATID GOUKCIL OF LAW BEPOBTIHG FOB SVGLAirD AHD WAL18.
Sntitan appeals:
BEDIO
CASES
Df
THE PRIVY COUNCIL
ON APPXAL FBOM
THE EAST INDIES.
Reported by HERBERT OOWELI., Esq.,
Of the Middle Temple, Babbibteb-at-Law.
VOL. IX.— 1881-82.
LONDON:
^tinteb mb $ttblt0hjeb fox tkt Cmtnol ot |Pato Importing
BY WILLIAM CLOWES AND SONS, LnfEnro,
DUXX 8TBEBT, 8TAMP0BD 8TBBBT; AND, 14, OHABINa 0B06S.
PUBLISHING OFFICE, 27, FLEET STREET, E.a
1882.
LianAHY Ot inc
lEIJW SnNFORD JR. UNIVERSITY,
JUL 12 1901
ifBffAfiy OF THE
A TABLE
or THK
NAMES OF THE CASES REPORTED
IN THIS VOLUME.
PAGE
Anant Bahadur Singh «. Thaku-
rain Baghunath Koer •
Chooramnn Singh v, Shaik Ma-
homed Ali ....
Doorga Persad r.
Singh .
Eesho Persad
41
21
27
Hiia Lall v. Ganesh Pershad . 64
Hurro Doorga Chowdhrani v.
Maharani Surut Soondari Debi 1
Hurro Pershad Boy Chowdhry v,
Gopal Chunder Dutt . . 82
Misir Baghohardial r. Eajah Sheo
Baksh Singh . . .197
Musfioorie Bank ». Baynor . 70
MussTimat Bilasmoni Dasi v.
Bajah Sheo Pershad Singh . 33
Muttayan Chettiar v. Sangili
Yi^a Pandia Chinnatambiar . 128
PAOK
Nawab Muhammed Azmat Ali
Khan v. Mussamat Lalli Begum 8
Poreshnath Mookerjee v. Anath-
nathDeb . . . .147
Purmanundass Jeevundass r.
Venayekrao Wassoodeo and
The Advocate - General for
Bombay . . . .86
Bai Balkrishna v. Mussumat Ma-
suma Bibi, Mussumat Said-un-
Nissa Bibi, Nawab Mahomed
Hosein Ehan» and the Collector
of Ghazipur on behalf of the
Court of Wards . . .182
Bajah Nilmoni Singh v. Bakra-
nath Singh, and Secretary of
State for India . . .104
Bajah Nilmoni Singh v. Tara-
nath Mookerjee . . .174
TABLE OF CASES EEPOBTED.
[Ind. Ap. Vol. IX.
PAGE
Bajah Yenkata Kannakamma
Eow V, Eajah Bajagopala Appa
Kow Bahadur, The Court of
Wards, and Others . .125
Bao Karan Singh v. Bajah Bakar
AH Khan . . , . 99
Stnolair v. Broughton (Adminis-
PAGB
trator General of Bengal, and
Administrator to the Estate of
Sir Henry Tombs, deceased),
and the Government of India 162
Sirdar Sujan Singh v. Ganja Bam 58
Thakurain Bamanund Koer v.
Thakurain Baghunath Koer .
41
TABLE OF AUTHORITIES CITED.
Addison on Torts (3id ed.), p. H
Colebrooke'B Digest, bk. 1, a 6, pL 169, 170, 173 ..
(Higg. ed.), pp. 186, 202
Co. Litt. 352a
Comyns' Digest, Estoppel
Fifth Beport of Select Committee, p. 395
Harrington's Analysis, vol. iii. pp. 237, 239, 241 . .
p. 413
— p. 509
Macnaghten's Hindu Law, c. x. of Debt, Case 3
Mayne's Hindu Law, §§ 264 , 265, 269
Mitakshara, c. i. s. 1, w. 1, 27, 33, and s. 5, yv. 9, 10
, c. i. 8. 6, V. 9
Strange's Hindu Law, c. viii. para. 1 ; c. 9, par. 3 ..
Yyayahara Mayukha, c. y. 8. 4
.. 164
.. 130
.. 139
.. 148
.. 148
.. Ill
.. Ill
.. 113
107, 113, 120
.. 130
.. 28
.. 129
.. 140
.. 130
.. 130
TABLE OF OASES CITED.
PAQB
AdumioniDeyiv.aowdhry&ibNai.inJj^^j^^^p3<^^^ . 130
X-SSrr^^"^^*!h Madras. H.C.R. 469 . 200
Aradhun Dey v. Golam Hossein . 2 Snth. W. R. 487 . . 200
Archard v. Norman . . . L C. C Chron. 38 . .199
B.
Baboo Dhmnput Singh v. Gooman Singh { ^'^^^'^ ^""^ ^^' ^' ^^^'\ 84, 40
^B^^ten'nZin'"^ " .'*°"'"!} ^^ ^- ^' «• '^' ^'^ ' • 1^9
Barrs v, Jackson , . .1 Phillips Ch. 582 , . 201
Bebee Sowlutoonisea v, Robert Savi . S. D. A. (1859) p. 1575 . 34
^Sb'Si oStS?' Comxnissioner J , g^^. ^. ^, ,,3 , ,,,^ ,,3^ ,33
Bithal Butt V. Lalia Raj Kiahore .{ ^ ^^ ?u\'^'^ ^^ ^'} 1^2
Bi| Mar Bahadur Singh v. Ranee Janki) j^^ ^^^ 5 ^^^^ ^^^ ^ ^ ^2
Caldert^.Halket . . -{^ c^m^''^'.^^^ 162,163,172
Camick v. Tucker . . . Law Rep. 17 Eq. 320 . 73, 74
Chowdhry Wahed Ali v. Mussumat Ju-> ^g g^^ W. R 87 3
maye
Chunder Coomar Mundel v. Nnnnee
Ehanum ....
Ohundernarian Singh v. Brijo Bullub
Gk)ozee
Collector of Hooghly v. Taraknath^
Mukhopadhya
Vol. IX.— Ind. Ap.
. 11 Beng. L. R. 434 • . 201
14 Beng. L. R. 254 . . 163
7 Beng. L. R. 449 . . 163
X TABLE OP OASES OTCED. [Ihd. Ap. Vol. IX.
D.
PA6B
Deen Dyal Lai v. Jugdeep Narainsingh . Law Rep. 4 Ind. Ap. 252 140, 144
Uin^i^th Sannyal^ v. BancoomarJ j^^ jj^p g j^^ ^p ^^ ^^
Doe V, Watson . . . .1 Morton, p. 255 . . 34
^ D^a^'^''^^^ ^^^^ ""' ShibessureeJ ^q g^^j^ ^ ^^ ^^^ 3
F.
Fergusson V. Lord Kinnoul . . 9 01. & F. 251 . 162,172
Forbes v. Meer Mahomed Tuquee . 13 Moore's Ind. Ap. Ca. 438 . 113
G.
Garlick v. Lawson . . .10 Hare App. xvi . .43
Girdhari LaU v. Kantoo Lall . .j ^^^f^' ^ I"f • ^Pj ^^' ^^^ \f^
Gobind Coomar Chowdhiy v. Kistol ^ g^^j^ -^ ^ 520 . . 174
Uoomar Onowdry . . .J
Government v. Brijsoondree Dasee . 8 S. D. A. (1848) p. 466 . 163
H.
HardeoBux..TakoorJowahir Singh • j ^"^^e ^.d! A^ief' "1 ^^
Hogg V. Dinonath Sreemanee . . 8 Suth. W. R. 447 . . 4
Hughes v. Buckland . . . 15 M. & W. 346 . 162,172
Hunoomanpersand v, Mnssumat Baboojee 6 Moore's Ind. Ap. Ca. 393 28, 130
Hurlal Singh V. Jorawun Singh . . 6 Sel. Rep. 169 . 113,122
Hurpnrshad v. Sheo Dyal . . Law Rep. 3 Ind. Ap. 259 42, 50
I.
In re Hutchinson and Tenant . . 8 Oh. D. 540 . 73, 79
Joba Singh v. Meer Najeeb Oollah . 4 Sel. Rep. 271 . .34
^'^BSwan^'^^"'^"" t;. Collector of Bastj ^^ ^^^^,^ j^^^ ^^^ ^ ^^ l^Ll
Juggomohun Ghose v. Manick Chand . 7 Moore's Ind. Ap. Ca. 263 . 4
K.
Kastur Bhavani v. Appa . . Ind. L. R. 5 Bombay, 621 . 130
Kempv. NeviUe . . . 10 C. B. (N.S.) 523 . . 162
Khugowlee Singh v. Hossein Bux Ehan . 7 Beng. L. R. 673 . 202, 205
Kingston's (Duchess of) Case . . 2 Sm. L. C. notes, 778 201, 202
Knight V. Enight . . .<|
Kooldeep Narain Singh v. The Govern-
ment
3 Beav. 172; 9 L. J. (N.S.)( „a
Ch. 355 . . S
14 Moore's Ind. Ap. Ca. 247 . 113
Ind. Ap. Vol. IX]
TABLE OP OASES OITED.
Lady Langdale v. Briggs
Laljee Sahoy v. Fakeer Ohand .
Laljeet Singh v, Rajcoomar Singh
Lambe v, Eames . •
Lekraj Roy v. Kunhya Singh .
Le Marchant v, Le Marchant
Lucas V, Nockells
Luchmun Dass v, Giridhur Chowdhry
j 8DeG.M.&G.391;26L.J.l
•( (N.S.)Ch.42 . \
. Ind. L. R. 6 Calc. 135
PA6S
43
130
130
12 Beng. L. R. 373 .
LawRep.I0Eq.267;6Chj,3^^^
Law Rep. 4 Ind. Ap. 223, 226 . 34
Law Rep. 18 Eq. 414 . . 74
10 Bing. 167 . . 163, 172
Ind. L. R. 6'Calc.855(F.B.) . 130
M.
Mohima Chunder Ohuckerbutty v. Raj-) ,^0 ,, ,„ _
coomar Ohuckerbutty . . f ^^ ^uth. W. R. 22 . . 201
Mohun Lai Sookul v, Beebee Doss and] ^ -^r . t , * «
Others . . . f ^ Moore's Ind. Ap. Oa. 195 . 73, 77
Mohummud Zahoor All Khan v, Mussu-) 11 Moore's Ind. Ap. Ca. 468 . 182
mat Thakooranee Rutta Koer . j ' ri83 135
Muddengopal Lall v, Musst Gowrunbutty 15 Beng. L. R. 265 ' 130
Mussumut Bhawani K\iar v, Gulab Rai . Ind. L. R. 1 Allah, 348 185
Mussumat Edun v. Mussumat Bechun . 8 Suth. W. R. C. R.'l75, &c. 200 203
Mussumat Phoolbas Koer v. Lall Jug-) -.q q *. ttt t^ ^o *
gessur Sahoy. . . . ^^ ^uth. W. R. 48 .
129
%
Naba Krishna Mookerjee v, GoUector ol
Hooghly and Another
Narayana Oharya v, Narso Krishna
Nicholson v. Mounsey .
'^l 2 Beng. L. R. 277
. Ind. L. R. 1 Bom. 262
. 15 East, 384 .
161
130
164
Ouseley v, Plowden
O.
1 Boulnois, 145
163
P.
Backhouse v. Middleton
Pamall v, Pamall
Pickard v. Sears
Pitam Singh v. Ujagur Singh .
Ponnappa Pillai v, Pappuviengar
Pranputtee Koonwar v. Lalla Puttah Ba-)
hadoor . . . . j
Protap Cbunder Borooah v. Ranee Sumo) , . « ,, ,rr. ^
Moyee . . . . f ^^ S^*^* W. R. 151
1 Ch. C. 173, cited in Sugden's
V. & P. (11th ed.) p. 728 . 66
9Ch. D.96 . . 73
6Ad. &E. 474 . . 148
Ind. L. R. 1 Allahabad, 651 . 129
Ind. L. R. 4 Madras 1. 130, 144
2 Hay's Reps; 608 S. 0. Seves-
ter's Rep. note 638 .
43
3
E.
Rajah Lelanund Singh v. Doorgobutty . Suth. W. R. (1864), p. 249 . 123
— V. Government of) 6 Moore's Ind. Ap. Ca. 101 ! 104
^^g^^ • _• ^.f [111,113,121
v. Thakoor Mu-» t t> a , .^.
noorunjun Singh . . . f ^^ ^®P- ^npp. vol. p. 181 . Ill
xii TABLE OF CASES CITED. [Ind. Ap. Vol. IX.
PAOB
Rajah Nilmoni Singh v. Bakranath Singh 10 Suth. W. L. 255 . Ill, 113
. V. Government . 6 Suth. W. R. 121 , 113, 121
"^Sit The^or^wir ^^} ^^- ^ «• 1 M«in«, 129 . 125
Ram Sabuk Bose v. Monomohini Dossee . Law Rep. 2 Ind. App. 81 .70, 72
Rani Anund Koer v. Court of Wards . Law Rep. 8 Ind. App. 14, 22 . 43
^ fiJ^monrT"" ''' ^^"^^"^^ ^^^^} 12 Moore's Ind. App. Ca. 244 82^ 85
Richards v. Johnson ! \ ! 4 H. & N. 660 . . 148
S.
Sadasiva Filial v, Ramalinga Filial . Law Rep. 2 Ind. App. 219 . 3
Sale V. Moore . . . .1 Sim. 634 , . .73
Sarobur Singh v. Rajah Mohendemarain j g^ j^ ^ ^^^^ ^^ g^^ ^ ^^
^*SSn h^^^ ''' ^^"^^^ Bharut-{ g^ ^ j^ ^^gggj ^^ g^ ^ ^^^3
Seth Jaidial v. Seth Sita Ram ! ! Law Rep. 8 Ind. App. 215 . 42
Shamsunder Das v. Rohun Buksh . 6 N. W. H. 0. R. 252 . 185
Shivagunga Case . • . . Law Rep. 2 Ind. Ap. 169 . 43
Sokhee Monee Debia v. Brijoraj Mookerjee 17 Suth. W. R. 228 . . 3
Spooner v. Juddow . . .4 Moore, Ind. Ap. Ca. 353 162, 172
Stead V. Mellor . . . . 5 Ch. D. 225 . . .73
Sukee Monee Debia v. Huree Mohun J 6 Suth. W. R. Civil References,
Mookerjee . . . •$ P. 6 . . 199,200
Suraj Bunsi Koer v. Sheo Proshad Singh . Law Rep. 6 Ind. Ap. 88 130, 143
T.
ThakoOT Deer Tewarry v. Nawab Syed) ^3 ^ L. R. 427 . .43
All Hossem Khan . . . ^
Thakoor Hardeo Bux v. Thakoor Jawa-
hir Singh
Thakoor Shere Bahadoor Singh v. Tha-
kurain Darias Kuar .
Thukrain Sookraj Kowar v. Crovemment
of India
. Law Rep. 4 Ind. Ap. 178 . 51
Ind, L. R. 3 Call. S. 645 . 42
14 Moore's Ind. Ap. Ca. 127 .42, 50
u.
Upooroop Tewary v. Lalla Bandhjee Suhay Ind. L. B. 6 Calc. 749 . . 130
w.
_ _ BbiJ -
Pershad . . ^ .J Supp.\ol. 220 . . 42,51
Widow of Shunker Sahai v. Rajah KasbiJ Law Rep. 4 l^d^ Ap. 198, 203 ;
ERRATA.
On page 8 for Act XXIIL of 1861 5m read Act XXIIL of 1871.
CASES
m
THE PEIVY COUNCIL
ON APPEAL FBOH
Eit IBast fintries.
HURRO DOOBGA CHOWDHRANI . . . Dbfbndant ; J.C*
AND ^^^^
MAHAR^NI SURUT SOONDARI DEBI . . PLAiNTorr. ^^.
ON APPEAL FROM THE HIGH COURT AT BENGAL.
Mesne Profits — Interest on Mesne Profits Tear by Year — Execution of Decree-^
Costs,
Mesne profits and the interest thereon are two distinct subjects. The
former include the amount which may have been received from land, deduct^
ing the collection charges. The loss of interest year by year thereon is
merely dami^es sustained by a Plaintiff who has been prevented from
receiving the profits as they became due.
The Court, in execution, cannot exceed the terms of the decree by awarding
interest year by year.
Costs disallowed, untenable grounds of appeal as to the amount of mesne
profits having been put forward in order to bring the case within the rule as
to value which authorizes an appeal as of right.
Appeal from a decree of the High Court (Nov. 22, 1878),
modifying in favour of the Bespondent an order of the Subordinate
Judge of Mymeming (June 17, 1878), whereby it was ordered that
• Present: — Sib Babnes Peacock, Snt Montague E. Smith, Sib Robebt P.
CoLLiEB, Sib Biohabd Couch, and Sib Abthub Hobhoube.
Vol. IX. B
2 INDIAN APPEALS. [L. R.
J. 0. Bs.l3«859 be accepted as the amount of mesne profits of certain
1881 lands which had been decreed to the Bespondent. The sum
B^o awarded by the High Court was E8.19,104.
Cho^^ani T1^®^® were concurrent judgments as to the amount of mesne
v* profits ; but the High Court, in cross appeal by the Bespondent,
SuRUT Soon- added thereto interest year by year at 6 per cent.
DABi BBi. r£^^ judgment of the High Court {Morris and Prinsepy JJ.)
was as follows : —
" A cross appeal has been preferred by the decree-holder. It is
to the effect that the Lower Court has acted upon a wrong prin-
ciple in assessing the mesne profits; that it has simply added
together the totals of the rents which the Ameen has found to
have been paid in each year to the judgment debtor by the ryots,
and not taken into account the loss which the judgment creditor
has sustained during the long period of dispossession. In support
of his argument the duruhdda refers to the judgments of this
Court, to be found in 14 Suth. W. B. p. 151, 17 8uth. W. B.
p. 228, and 19 8uth. W. B. p. 87, the effect of which is, that not
merely the bare rental of each year, less the collection charges, is
to be ascertained, but the actual loss which the party ousted has
sustained, by not haying the use of his money during the period
that he is kept out of possession.
**The reply made to this objection is, that the decree does not
permit any interest upon mesne profits until after those mesne
profits have been ascertained, and that this is simply an applica-
tion to have mesne profits at compound interest. Looking at the
decree, it appears that it only allows interest upon the consolidated
sum arrived at by the Court as mesne profits, after such mesne
profits have been ascertained. There is no reason, however, why
the Lower Court, in assessing the mesne profits, should not have
allowed interest upon each year's rent as compensation for the loss
of the money. We think therefore that the contention of the
decree-holder in this cross appeal is right, and that the principle
laid down in the 14 8v>th. W. B. and other decisions of this Court,
ought to have been followed. The judgment creditor, who has
been kept out of possession, is entitled not merely to bare rental
but to compensation for the loss he has sustained. Under ordi-
nary circumstances, therefore, if the decree-holder has been kept
VOL. IX.] INDIAN APPEALS. 8
out of possession for several years, interest should be calculated at J. 0.
the end of each year upon the rental which he would be entitled issi
to receive, and could receive, from the ryots for that year. In the hubbo
present instance, where the dispossession extends over eight years, q^^^^^^
interest should be charged for seven years on the aggregate of the «•
rents received or realizable the first year ; for six years on the Surut Sooii-
rents received or realizable the second year, and so on ; and thus ^^^ "°^'
the aggregate of these sums should constitute the mesne profits
which it was the duty of the Lower Court to ascertain and deter-
mina Interest upon this consolidated sum would then run as
provided for in the decree. It may be a question how far the
definition of mesne profits, as given in sect. 211 of the new Civil
Procedure Code, is in accordance with the decisions of this Court
above referred to. But we do not think it necessary to enter
upon this point, as the present case undoubtedly falls under the
provisions of the old Code.
** The decree therefore of the Subordinate Judge will be
amended in this respect, in that on the sum ascei-tained by the
Ameen as the assets, less collection charges, derived each year
from the estate, interest at 6 per cent, per annum will be allowed.
Interest will be calculated upon each year's mesne profits up to the
date of the decree of the Lower Court, and interest upon the con-
solidated sum from that date to the date of realization."
Coiuie, Q.C., and CoweU, for the Appellant, contended that this
judgment was wrong, and that interest year by year could not be
granted in execution where the decree was silent in regard tx) it.
The case relied upon by the High Court, Protap Chunder Borooah
V, Banee Swrno Moyee (1), was in regular appeal, and moreover
disallowed such interest because it had not been claimed in the
plaint. Beference was made to sect. 11 of Act XXIIL of 1861 ;
Sadasiva PUlai v. Bamalinga Pillai (2) ; Soihee Monee Bebia v.
Brijoraj Mooherjee (3) ; Chowdhry Wahed Ali v. Mtksmmat Jvr
maye (4) ; and as to the meaning of " ascertainment " to Boorga
Soondaree Bebia v. Shibessuree Bebia (5).
(1) 14 Suth. W. R. 151. (3) 17 Suth. W. R. 228.
(2) Law Rep. 2 Ind. Ap. 219. (4) 19 Suth. W. R. 87.
(5) 10 Suth, W. R. 391.
B 2
DARl DeBI.
4 INDIAN APPEALS. [L. R.
J. 0. Doyne, for the Eespondent, contended that the High Court was
1881 right, and that mesne profits included interest year by year in the
Htobo manner directed by that Court. Reference was made to Juggo-
DooBGA mohun Ohose v. Manick Chand (1) ; Hogg v. Dinonath Sreemanee (2).
Chowdhbani \ / y VJ ^ V /
». Upon the question of costs, he contended that the total interest m
SubutSoon- question was not up to the appealable amount, and that the
Appellant had questioned the correctness of concurrent judg-
ments as to the mesne profits in order to obtain an appeal upon
the matter of interest.
The counsel for the Appellant were not called on to reply.
The judgment of their Lordships was delivered by
Sib Barnes Peacock : —
The Eespondent in this case was the Plaintiff in the Court
below. She sued the husband of the present Appellant to
recover possession of certain lands together with the sum of
Es.3647 10a. 9p., the estimated amount of mesne profits for two
years ten months and twenty days from the 1st Assin 1273, to
20th Srabun 1276. In that suit a decree was made for the Plain-
tiff to recover possession of the lands, and also the mesne profits,
not from a time previous to the date of the suit, as claimed, but
from the date of the suit to the date of recovery of possession, to
be ascertained by inquiry at the time of the execution of the
decree, with interest from the date of the ascertainment at 6 per
cent, per annum. From that decree there was an appeal to the
High Court. The High Court, by its decree, amended the decree
of the Lower Court by giving the mesne profits from the 1st
Assin 1273, to the 20tli Srabnn 1276, in addition to those which
had been awarded by the Lower Court. The High Court also
stated that the mesne profits were to be recovered with interest
from the date of ascertainment. Therefore, according to both
decrees, the mesne profits were to carry interest only from the
date of ascertainment. It is clear that the Court in executing
the decree, could not vary or add to it by awarding anything
beyond that which was originally decreed. When the decree
(1) 7 Moore's Ind. Ap. Ca. 263. (2) 8 Suth. W. R. 447.
VOL. IX.] INDIAN APPEALS. 5
came to be executed it was referred to an Ameen to ascertain the j c.
amount of mesne profits, and he ascertained what was the rent 1881
which might have been obtained from the estate. That he treated hubboo
as the mesne profits of the estate, but lie added no interest year ^ i>oobga
by year upon the amount. The mesne profits so ascertained v.
amounted to Bs.13,359 and some odd annas, and the Lower Court subut Soon-
made an order in execution for that amount. Upon that there °^^ ^^^^'
was an appeal to the High Court, by both parties, first on the
ground that the assessment was excessive ; and secondly, on the
part of the Plaintiff, that in assessing the mesne profits the Court
below ought to have allowed interest year by year upon the
amount which could have been coUected, and further interest
upon the aggregate amount from the date of its order. The
High Court upon tliat appeal having heard the argument of
counsel, thought that the lower Court was wrong in not having
allowed interest upon the rental year by year, upon the ground
that the decree holder was entitled, not merely to the rental less
the collection charges, but also to interest thereon year by year as
compensation for the loss he had sustained by not having the use
of his money during the period he was kept out of possession.
The question is, whether the High Court, which by its decree was
merely executing the original decree of the High Court, did not
by giving that interest really add to and alter the decree which
was to be executed. Now that depends really upon the question
what was the meaning of the term ^' mesne profits."
In their Lordships' opinion, the amount which might have been
received from the land, deducting the collection charges, was the
profits of the land. The loss of interest year by year upon those
profits was merely damages sustained by the Plaintiff in conse-
quence of her having been prevented from receiving the profits as
they became due. But the original decree did not award those
damages, and the High Court by awarding them added to the
decree which was in the course of execution.
Several cases were cited to shew that the High Court was right
in giving interest year by year, and several of those cases were
referred to by the High Court themselves in their judgment.
Amongst others a case was cited from the 14th Weekly BeporteVy
p. 151. When that case comes to be examined it will be found
DABI DeBI.
6 INDIAN APPEALS. [L. B.
J. 0. that it was not an appeal from a decree in execution, but from a
1881 decree in an original suit ; and in that appeal it was contended
Hu^ that the Lower Court ought in the original suit to have given the
DooBGA Plaintiflf a decree, not only for the mesne profits, but for interest
V. upon those mesne profits to be calculated from year to year. The
SuBUT Soon- High Court in that case thought that, under certain circumstances,
a Plaintiff might be entitled to interest upon mesne profits from
year to year ; but they said that, inasmuch as that interest had
not been claimed in the suit, they could not interfere in the case,
and the Plaintiff merely recovered the mesne profits without
interest. That is a very different case from the present. There
it was contended that the original decree of th^ Court ought to be
altered ; here it is contended, not that the original decree of the
Court ought to be altered by awarding interest year by year, but
that the decree of the High Court in the execution of the case, in
awarding such interest, was in accordance with the original decree.
The case cited, however, is an authority to shew that it was not
so; for in that ease the mesne profits and the interest thereon
were treated as two distinct subjects, and the Court refused to
allow the interest as well as the mesne profits, because the loss of
the interest had not been claimed as damages.
If the present contention is correct, the term mesne profits in
that case included interest thereon year by year, although the
Court refused to allow it. It appears to their Lordships that the
decision of the Lower Court in executing the decree was in accor-
dance with the decree, and that the decision of the High Court
by adding the interest from year to year exceeded the original
decree.
Under these circumstances their Lordships think that the
decree of the High Court ought to be reversed.
It appears that the total amount which the High Court has
given by way of interest in excess of the decree is Rs.5744. If
that had been the only objection the case would have been under
the appealable value ; but the Appellant, in order to gain a locus
ttomdij appealed also upon the ground that the amount awarded
for mesne profits was excessive ; and the greater portion of the
Becord, about 240 pages, relates to that part of the case, upon
which there was no chance of the Plaintiffs succeeding. The
VOL. IX.] INDIAN APPEALa 7
decisions of the Ameen, of the Lower Court, and of the High j. o.
Court were concurrent with reference to that point. The only I88I
possible ground of appeal was that the Court had allowed interest h^^
from year to year. cm^^m
Their Lordships cannot encourage the joinder of grounds of v.
^ t * ^ 111 IT » 1 -ii'i MaHABANI
appeal which are absolutely untenable with grounds which are SurutSoon-
tenable in order to bring a case within the rule as to value which ^^ ^^ ^ ^'
authorizes an appeal as of right. In the present case the effect of
so doing has been a large increase of costs to the Bespondent.
The Appellant has thereby disentitled herself to the benefit of
tiie rule under which a successful appellant is ordinarily entitled
to the costs of the appeal.
Their Lordships will therefore humbly adyise Her Majesty to
reverse the decree of the High Court, but they make no order as
to costs.
Solicitors for the Appellant : Barrow & Bogers.
Solicitor for the Respondent : T. L. Wilson.
INDIAN APPEALS. [L. K.
J.o.» NAWAB MUHAMMAD AZMAT ALI KHAN Defendant
1881 j^Tsj)
i^(w.i8,i9,22.MUSSUMAT LALLI BEGUM and Othebs . Plaintiffs.
ON APPEAL PROM THE CHIEF COURT OF THE PUNJAB.
Mahomedan Law — Legitimacy — Implied Becognition^ Pensions Act {XXIII.
of 1861), 8. Q—C&rtificate.
According to Mahomedan law the acknowledgment and recognition of
children by a father as his sons gives them the status of sons, capable of
inheriting as legitimate sons.
Such an acknowledgment may be either express or implied, in the latter
case the inference from the acts of the father must depend upon the
circumstances of each particular case.
Edd, that a suit relating to a ^ant of property within the meaning of the
Pensions Act (XXIIL of 1861) need not be dismissed because no certificate
has been obtained before the commencement thereof: sect. 6 according to
its true construction authorizing its continuance.
Appeal from a decree of the Chief Court of the Pwajab
(Dec. 5, 1876), aflSnning with modifications a decree of the
Commissioner of Lahore (Jan. 19, 1874).
The facts of the case appear in the judgment of their Lordships.
CWte, Q.C., and Oraham, Q.O. (Doyne with them), for the
appellant.
Leith, Q.C., and Mayne, for the respondents, were not called
upon.
The judgment of their Lordships was delivered by
Sib Montague E. Smith : —
This appeal arises in an action brought by Musminat LaiU
Beffumy claiming in her own right as widow of the late Nawab of
Kumal, Ahmed All Khan, and as guardian on behalf of her
• Present :-~Sib Barnes Pbaoook, Sib Montague E. Smith, Sir Richard
Couch, and Sir Arthur Hobhouse.
VOL. IX.] INDIAN APPEALS. 9
minor song, Btutam Ali Khan and Umar Daraz Ali Khan^ to J. 0.
recover her own share as widow, and the shares of her minor issi
sons who are allied to be sons of the late Nawab, in large nawab
landed estate and other property left by him. The Defendant in a^^^
the action is Nawab AzmcU Alt Khan, who is the undoubted ^^^
V.
son of the late Nawab and much older than the two minor Mussumat
Plaintiffs. LALi^^arM.
The late Nawab had four wives. A son, Bahmat Alt Kha/n^
died in his lifetime. He left surviving him Azmat Ali Khan^
the Defendant, the MusstMnat Lalli, who asserts that she was his
wife and is now his widow, and the two minor Plaintiffs.
In the Courts below several judgments original and on remand
have been given, and the result of the litigation appears to be as
follows : — The Commissioner of Lahore found that neither Mus-
mmat LaUi nor her sons «^ere entitled to inherit, being of opinion
that she was never married to the Nawab, that her sons were not
originally legitimate, and further that the status of sons had not
been conferred upon them by the late Nawab by any recognition
of them as his sons. On remand the Commissioner found that
by family custom widows did not inherit. The Chief Court of
the Punjab agreed with the finding of the Commissioner as to
this custom, and dismissed the Mussumat's appeal on the ground
that she was disentitled by the custom. The Commissioner also,
as already observed, dismissed the suit of the sons. The Chief
Court of the Punjab reversed his decree so far as it dismissed the
suit of the sons, and decreed in their favour, being of opinion
that the minor Plaintiffs were entitled to inherit. No question
now arises as to the widow, both Courts having found that she is
excluded by the custom of the family ; and she does not appeal
from those decisions.
The issues raised as to the right of the minor Plaintiffs to
inherit originally involved the following questions: — First, the
alleged marriage of their mother Mussitmaf Lalli, with the late
Nawab; secondly, the alleged acknowledgment and recognition
of them by the late Nawab as his sons, and the legal consequence
of such recognition if made ; and thirdly, the existence of certain
family customs.
It will be convenient in the first place to refer to the issues as
10 INDIAN APPEALS. [L.B.
J. 0. to the customs of the Mandals, to which this family belonged, to
1881 see if any custom has been established varying the general role of
Nawab ^^^ Mahomedan law relating to inheritance or the effect of the
a^^tA^ acknowledgment of a son. An attempt was made to shew that by
Ehan the custom of the Mandals the sons of ignoble wives did not
MvsstTMAT inherit. It appears that in 1849 an inquiry was instituted by
l^^^ the Government respecting the customs of the Mandals, and
various dustur-ul-amuls were drawn up by members of Mandal
families respecting them. But on consideration of these doca-
mentSy it appears first, that they do not agree on important
points; and further, they do not profess to record existing
customs, except possibly with regard to the exclusion of women
from inheritancy, but contain endeavours to come to an agreement
with respect to the rules which should bind the family, in the
future. This was the view taken by the Government at the time
and also by both the Courts in India in this suit of these docu-
ments, so far as they related to the inheritance of sons. On a
remand by the Chief Court oral evidence of the custom was taken
by the Commissioner. The evidence satisfied the Commissioner,
and the Chief Court agreed with him, that the custom to exclude
widows from a share of the inheritance was proved. The claim
of the widow was therefore rejected. With respect to the sons
the Commissioner's judgment is to this effect : he finds distinctly
upon the question which was referred to him by the judgment re-
manding the case that legitimate ignoble sons would take a share
with noble sons ; that there is no distinction as to the right to
inherit between the sods of noble and ignoble wives. But in the
course of his judgment he finds an issue to be proved which does
not appear to have been referred to him. He says this : '*They
agree" — ^that is the dustur-ul-amuls and the oral evidence agree —
'Hhat illegitimate sons of ignoble mothers, though recognised as
sons, get no share." Their Lordships have been referred to the
evidence on which this last finding rests ; but the learned counsel
for the Appellant did not prosecute the consideration of it after a
few witnesses had been referred to, because it soon appeared that
the evidence afforded no foundation upon which the learned Com-
missioner could properly base his finding, and the Judges of the
Chief Court have distinctly come to a different conclusion upon it.
VOL. IX.] INDIAN APPEALS. 11
His finding that legitimate ignoble sons get a share with noble J. C.
sons was however affirmed by the two Judges of the Chief Court, I88I
who both came after a very careful review of the evidence to the nawab
conclusion that no custom prevails in this family which varies the JJ^j^t ali
ordinary rules of the Mahomedan law with regard to the rights ^^^^
of sons to inherit. Mussumat
An attempt has been made to shew that the family were ori-
ginally Hindus and converts to the Mahomedan faith, and upon
this foundation a suggestion has been raised that Hindu customs
were preserved in the family ; but the foundation for this sug-
gestion entirely fails. Not only was the fact of the family having
been at one time Hindus not proved, but it was negatived by
some of the witnesses. Even if the fact had been proved it would
only have lent probability to the suggestion that some Hindu
laws had been preserved in the family as customs. It must still
have been proved that they were in fact so preserved and acted
upon ; and as already stated, the proof of the existence of any
customs so far as the present suit is •concerned entirely failed,
except as to the widow's right to share. It is to be observed
also that there is evidence that the late Nawab was himself a
strict Mahomedan. The rights of the minor Plaintiffs have
therefore to be determined by the rules of Mahomedan law as
applicable to the facts of the case.
The undisputed facts of the case are that Jil'fMsumat Lalli was
originally a slave girl in the late Nawab's house, and at one time
acted as a servant in it. She lived in the house up to the time
of the Nawab's death, and beyond question the Nawab cohabited
with her, and the two minor Plaintiffs were born in his house and
remained in it up to the time of his death. ThosQ facts are
undisputed.
The questions which arise are, first, whether there was a mar-
riage between the late Nawab and Musmmai LaUi before the
births of the Plaintiffs, in which case, of course, both would be his
legitimate sons ; and, secondly, whether, if that be not established,
there is proof of an acknowledgment and recognition by the
Nawab of the two Plaintiffs as his sons, which would give them
the status of sons and a title to inherit.
The direct evidence of the marriage is not very satisfactory,
12 INDIAN APPEALa [L. R.
J. 0. and is in some respects contradictory. Still, there is positive
1881 evidence that a ceremony of marriage did take place before the
Nawab births of the children. That direct evidence is met by the nega-
AzMAT Axi *^^® evidence of witnesses who say that if such a ceremony
Khan had taken place they must have known of it. From this state of
MrssuMAT the evidence, if it stood alone, it would be difiBcult to affirm that
ALLi KGUM. ^ inarriage had been established ; but the evidence exists, and a
question certainly arises whether the treatment of the minor
Plaintiffs by the Nawab as his sons, to be hereafter adverted to,
and the acknowledgments he made respecting them, do not afford
such a strong presumption of marriage as to entitle the testimony
of the witnesses who speak to the marriage to credit which other-
wise it would not have possessed. Their Lordships, however, do
not think it necessary to decide the case upon the ground that an
actual marriage is proved. The Commissioner of Lahore has
found against the marriage. The two Judges of the High Court
certainly do not find against it. The inclination of Mr. Justice
BoulnM opinion was that it was not proved, whilst the inclina-
tion of Mr. Justice Lindsay's opinion was the other way ; they
therefore did not find against the marriage, though they have not
affirmed it. Their Lordships also do not find it necessary to pro-
nounce a distinct opinion upon the question whether the marriage,
in fact, took place, as they think the Plaintiffs are entitled to
succeed upon the ground that acknowledgments of them as his
sons by the Nawab have been proved.
The evidence of the acknowledgment of the elder son, Bustam^
is extremely strong. It rest not only on oral testimony, but on
documents, one of which is almost conclusive of the question. It
seems that Bustam was born six or seven years before his father's
death. His brother JJmar was born shortly before his death, —
the precise time is not ascertained, — probably about a year, or a
little more ; but it is not possible to arrive at the time with any
exactness.
With regard to Bustam, it is shewn that he was treated by the
Nawab as a legitimate son would be. He was often taken by his
father on visits to the houses of Mr. Warhurton, a native of India
but educated by an Englishman and a Government official, and
of Major Parsons, another British officer, both living in the neigh-
VOL. IX.] INDIAN APPEALS. 13
bourhood. The Nawab appears to have introdaced Btistam as J. c.
his son, and the evidence is that he treated him with greater issi
affection than his eldest son Azmat. Not only in the Nawab's n^^
house was BMstam put forward as his son, but he was taken on the Muhammad
, , AZMAT AlI
above-mentioned and other visits as if he were a legitimate son. Khan
He was always dressed as a legitimate son would be. Mr. War- mussitmat
lurton proved that he " used frequently to see B/uxtam going Lalu Bequm.
about well dressed, mounted on an elephant, and attended by
servants." He also says he was extremely like the Nawab. A
great deal of other evidence was given to this effect. Besides
evidence of this kind, when Bustam^s education was about to be
commenced the Bismillah ceremony was performed. There is
distinct evidence of the performance of that ceremony, not only
by the native gentlemen who attended, but by Mr. Warhurton
and Major Parsons, who were also invited and attended. Mr.
Warhv/rton appears to have been an intimate friend of the late
Nawab ; he is a witness whose credit is entirely unshaken, and
appears to be in every respect an unimpeachable witness. At
this Bismillah ceremony Btistam was introduced and treated as the
son of the Nawab. It is scarcely conceivable that this ceremony
would have been performed if he had been an illegitimate son.
With regard to the evidence of the defendant's witnesses as to
the manner in which these children were treated, their Lord-
ships think that it is entirely unworthy of credit. In opposi-
tion to the strong and credible evidence given by the witnesses
for the Plaintiffs, it is attempted to be shewn that these children
were, in fact, the children of a slave girl allowed to have pro-
miscuous intercourse with men outside the Nawab's house, and
whose fathers, some of the witnesses say, it was impossible to
know. This evidence, and that which seeks to prove that the
boys were treated as such children would probably be treated,
seems utterly unworthy of credit.
In addition to the oral evidence which has been mentioned, a
declaration, important in itself, and as affording confirmation of
the oral testimony of the Plaintiffs, is found in the report which
the Nawab made to the Government respecting the arms belong-
ing to his family. In a letter to the Deputy Commissioner of
14 INDIAN APPEALS. [L. E.
J. G. Karrud^ dated on the 7th of March, 1866, the year before he died,
L881 is a schedule in which the arms held by himself and the members
NawIb o^ t's family are described. The letter is : — " After expressing
aSia-Taij ^ desire for an interview which has abundant advantages, and is
Khan the best of the objects, be it known to your splendid and kind
MussuMAT mind, on the arrival of your kind note a list of my personal arms
ALLi^QUM. jg annexed to this friendly letter as required in Commissioner's
circular dated 8th January, 1866/' In that list there are columns
with the names of the possessors and the descriptions of the arms.
First there is " personal," that is himself; and he returns eleven
native swords, one shield, muskets, pistols, and other arms. Then
follows : — *^ The Nawab's son, Azunat Ali Ehmiy^ (the Appellant,)
four native swords, one shield, two double muskets, and so on.
Then follows ; " The Nawab's son, Bustam AK Khan " (the Eespon-
dent), four native swords, one shield, two double muskets, and so
on. In this document the Nawab describes Bustam as ^Hhe
Nawab's son, Bustam Alt Khan/' and returns exactly the same
number of arms as belongij;ig to him as belonged to his eldest sod.
He therefore not only calls him his son, but treats him as he
treated Azmaty his undoubted legitimate son. Their Lordships
think that this acknowledgment in a formal report to the Govern-
ment, is almost conclusive as regards Bustam.
Undoubtedly, the evidence of acknowledgment and recognition
of Um>ar the youngest son is, as may naturally be expected, much
less than that in the case of the elder brother. Considering the
short period that elapsed between his birth and the death of the
Nawab, it is not surprising that a paucity of evidence appears ;
but their Lordships think that enough is shewn in the case of
Umar also to satisfy them, as it satisfied the Judges of the Chief
Court of the Pumjaib, that he was acknowledged and treated as
a son.
The first witness for the Plaintiffs, Nijahut Ali Khan, who was
a relation of the deceased Nawab, gives evidence of an acknow-
ledgment which, if true, goes far to support the claim of the
younger son : " I often used to go to Nawab Ahmad Ali Khan
and he often acknowledged to me that Bmtam Ali Khan and
Um>ar Varaz Ali Kha/n were his sons.*' No doubt the Commis-
V.
Lalli Begum.
VOL. IX.] INDIAN APPEALS. 15
sioner of Lahore has found that this witness and two other wit- J. G.
nesses who speak of the marriage are not to be belieyed, because I881
he considers that the marriage did not take place, and not believ- nawab
ing them upon that point he did not give credit to them upon any ^zS^ll?
other. Their Lordships are by no means sure that the Oommis- i^^hak
sioner was not too sweeping in his condemnation of these witnesses Mussumat
because even if some discrepancies appear in their evidence as to
the facts of the marriage, it may still be that they were speaking
the truth when they said they were present at the ceremony. It
is too common for witnesses in India to become partisans of the
party for whom they are caUed, exaggerating facts, and adding
incidents to transactions which really took place. But it is not
always safe to disregard their evidence altogether because in
some respects they may have said that which is not believed. If
the case, however, had rested on this man's evidence, their Lord-
ships agree with the learned counsel for the Appellant that it
would have been, to say the least, unsafe to act upon it ; but the
evidence does not rest there. Mr. Warhu/rton, the witness who
has been already described and commented upon, gives evidence
of what appears to be a distinct acknowledgment by the Nawab
of Umar as his son. Mr. Warburtan is examined at some length
by both parties. He had excellent opportunities of knowing the
state of the Nawab's family with accuracy. He visited the
Nawab, was invited to the Bismillah ceremony of Bustam, and
"was on intimate and confidential terms with the Nawab. He is
asked : ** Do you know anything about Murdaraz Ali Khan ? —
another name for Dman (Reply.) Yes, I know Mwrdaraz Ali Khan •
he is the reputed son of the late Nawab Ahmad Ali Khan —
(Question 2.) Whenever you had occasion to see these two boys,
or either of them, in what dress did they generally appear?
I mean, were they dressed in such costumes as the sons of
Nawabs and native gentlemen were ? (Eeply.) Yes, they always
appeared in clothes as usually worn by sons of Nawabs and native
gentlemen. — (Question 3.) Did you see father and son in one
place, and was then the treatment like that of a father ? (Beply.)
I do not recollect seeing Murdaraz Khan with his father ; but I
have frequently seen Bustam Ali Khan and his father at the same
time, and his treatment of Bmlam Ali Khan was that of a father."
16 INDIAN APPEALS. [L. R.
j.G. The more specific eyidence is at the end of his examination,
1881 and is in these terms. It is giren in reply to a question
Nawab which was put to him in cross-examination. " To the best of
AzMAT !^ your recollection did Nawab Ahmad Ali Khan ever talk to you
Khan about Bostam AKb sonship; Le.^ did he ever acknowledge ' in
MnssuMAT your hearing, in distinct and solemn words, that Rustam or Umar-
Lalli Begum. ^^^^ ^^ ^^ j^j^ ^^ ^^ legitimate son? (ReplyO I do not
recollect having any conversation with the late Nawab as to the
parentage of Rustam Ali Khan ; but with regard to Umar-daraa
Ali Khan I distinctly recollect that shortly after his birth Nawab
Ahmad Ali Khan came to my house and said that U^mar-da/iraz
Ali Khan his son's mother had no nourishment, and he was then
advised to procure a sucking-bottle for the child. I don't recol-
lect having on any other occasion heard the Nawab talk of Umar-
daraz Ali Kha/n as his son." If that statement be true, and
their Lordships are disposed to give credit to it, can there be any
doubt that it was a distinct acknowledgment of this young boy by
the Nawab as his son ? It was made in the most natural way,
and conveyed to Mr. Wa/rbwrt(yrCs mind the clear impression that
he referred to and acknowledged TJmar as his son. It is also im-
portant to observe that Umar received the titular name of KTum^
as his brother Bostam had, a name which it is not likely the
father would have bestowed upon any but his acknowledged and
legitimate sons. Those who advised the Appellant were appa-
rently aware of the importance attached to this name, for they
endeavoured to shew that it had not been given to the boys until
after the death of the Nawab ; that is distinctly disproved by the
evidence in the case, and it appears that they always bore that
name.
The evidence of Major Parsons is not so distinct as that of Mr.
Warlmrt<m. He says, to the best of his recollection, the Nawab
spoke himself to him about the second boy. Besides this testi-
mony, there is general evidence that both boys were treated by
the Nawab as his sons.
Undoubtedly an acknowledgment of each son must be proved.
In the actual circumstances of this case, it is highly probable that
when the Nawab had recognised the elder son of Mussumat LaJli,
he would also acknowledge the younger, and this probability
VOL. lX.j INDIAN APPEALa . ]7
giyes sapport to the eyidence in the case of the latter. There J. c.
seems to be no reason for his making a distinction between 188I
*Jiem. N^^;^
Their Lordships have already adverted to the unsatisfactory ^^^"^
character of the evidence given on the part of the Defendant. The i^^^N
only piece of evidence entitled to weight is the genealogical tree Mussumat
which has been produced by him. That tree professes to be a ^^^^^ J^^pm.
pedigree of the Nawab'a family which was returned to the Go-
vernment. The genealogy begins^ at no distant period, with the
father and uncles of the late Nawab. He was asked for a genea-
logy of his family. Undoubtedly in the paper which has been
produced there is under his own name an entry of two sons only^
Bahmat Ali Khan ''deceased/' and Azmat Ali Khan; there is no
mention of RvMarriy though Rustam must have been born at the
the time that this pedigree was drawn up. It is, however, to be
observed that the document produced is a copy only, and that the
original has not been produced or satisfactorily accounted for.
There may be considerable question whether the copy was admis-
sible in evidence ; but whether admissible or not, it is. a copy
only, and there is an entry after the name of Bahmat Ali of his
death — ** Bahmat Alt Khan, deeeaaed" Now, at the time that
this pedigree was prepared, Bahmat Ali Khan was not dead ;
and therefore the document must have been altered, at least to
that extent, after it had been originally prepared. It is possible
that when the Nawab was called upon for his genealogy he might
have thought it suflScient to give the genealogy only down to
himself. But the document itself, the original not being pro-
duced, containing an entry which could not have been in a
genuine original, cannot be safely relied upon. Even if an origi-
nal pedigree had been produced without the name of Bttstam,
though it would no doubt be a piece of evidence favourable to
the view of the Appellant, and perhaps strongly favourable to that
view, it would not be suflScient to outweigh the positive evidence
of the acknowledgment of Bvstam by the Nawab.
Their Lordships, therefore, have come to the conclusion that
an acknowledgment by the Nawab of both the minor PlaintiflFs as
his sons has been proved.
The only question which remains on this part of the case is as
Vol. IX. C
18 . INDIAN APPEALS. [L. R.
J. a to the effect of these acknowledgments. Both the Judges of the
1881 Chief Conrty who have giyen learned and careful judgments, haye
Nawab gone yery fully into the authorities upon this question. Their
^j^^^5^ Lordships however are relieved from a discussion of those autho-
^^^ rities, inasmuch as the rule of Mahomedan law has not been dis-
MussuMAT puted at the Bar ; viz., that the acknowledgment and recognition
* of children by a Mahomedan as his sons gives them the stattis of
sons capable of inheriting as legitimate sons unless certain con-
ditions exist, which do not occur in this case. That rule of the
Mahomedan law has not been questioned at the Bar. In this
case we have not only the treatment of the Plaintiffs by the
Nawab as his sons, from which under certain circumstances an
acknowledgment may be presumed, but we have actual acknow-
ledgments of them. It has been decided in several cases that
there need not be proof of an express acknowledgment, but that
an acknowledgment of children by a Mahomedan as his sons may
be inferred from his having openly treated them as such* The
question whether the acknowledgment should be presumed or not
must of course depend on the circumstances of each particular
case in which it arises. The only authority, after the course
which the argument has taken, to which their Lordships think
it necessary to refer, is the case of Ashrufood Dowlali Ahmed
Hossein Khan y. Hyder Hossein Khan (1). In that case their
Lordships say : *^ The presumption of legitimacy from marriage
follows the bed, and whilst the marriage lasts the child of the
woman is taken to be the husband's child ; but this presumption
follows the bed and is not antedated by relation. An antenuptial
child is illegitimate. A child born out of wedlock is illegitimate ;
if acknowledged he acquires the status of legitimacy." The rule
of the Mahomedan law as to acknowledgment is so afiSrmed in
this judgment. ^' When therefore a child really illegitimate by
birth becomes legitimated, it is by force of an acknowledgment
exprei^s or implied directly proved or presumed. These presump-
tions are inferences of fact." This last passage appears to refer
to cases where an express acknowledgment is not proved and has
to be presumed from other facts. They are built on the " foun-
dations of the law and do not widen the grounds of legitimacy
(1) 11 Moore's Ind. Ap. 113.
ft,
Lalli Begum.
VOL. IX.] INDIAN APPEALS. 19
by confounding concubinage and marriage." These obserrations J. C.
must be taken with reference to the facts of that case : and in I88I
that case it appeared that there was a Moottah marriage after the nawab
birth of the child. There was no acknowledgment and the ^JzbS^m
treatment of the child was equivocal. Sometimes he was treated ^han
as a son and at others not ; and indeed by a deed executed by ^ Mussumat
the father for that purpose he was distinctly repudiated by him as
his son. In that case it was decided that in the absence of express
acknowledgment^ the evidence was insufficient either to raise the
presumption of a marriage which in point of time would cover
the birth of the child or of an acknowledgment. The facts and
questions in that case were very complicated, and some of the
passages in the judgment referred to by the Judges below can
only be understood by referriug to the questions to which they
were addressed. However there really is no dispute about the
law; and their Lordships in this case have not to lay down
any new principles of law, but only to apply a well-established
principle to the facts.
The remaining point relates to a part of the property which is
sought to be recovered. It appears that some part of the pro-
perty in suit consisted of land which was assumed in the Courts
below to be held under a grant from the Crown on terms which
brought it within the Permons Act (Act XXIII. of 1871). Their
Lordships have not been referred very specially to the facts, nor
was that necessary in the view taken by them of the construction
of this Act; they are therefore not to be understood to affirm
the assumption upon which the Courts below acted, that the
grant in question is a grant within the Pensions Act. They give
no opinion upon that point; but assuming that the Court was
right in consideriug the grant as one within the Pensions Act,
their Lordships think it came to a correct decision in holding
that when the certificate mentioned in the Act was obtained the
suit might proceed. It seems that after the judgment which
disposed of the principal questions in the case had been delivered
final judgment was suspended upon an objection that no certifi-
cate had been obtained. Before the case was finally disposed of
and the final decree passed, the certificate was obtained and
delivered to the Court. The Pensions Aet, by sect. 4, provides
2
20 INDIAN APPEALS. [L. R.
J, 0. that : " Except as hereinafter provided, no civil Court shall enter-
1881 tain any suit relating to any pension or grant of money or land
Nawab revenue conferred or made by the British or any former Govern-
Az^T aS ment." Then the 6th section is, "A civil Court otherwise com-
Khan petent to try the same, shall take cognisance of any such claim
MuBsuMAT upon receiving a certificate from such Collector." It is contended
* that the suit ought to have been dismissed altogether as regards
the property held under the grant, because no certificate was
obtained before the commencement of the suit ; but their Lord'
ships think that the Court, although up to a certain time they
had proceeded apparently without objection with the suit without
a certificate, was justified in going on with the suit when it was
received. The statute says that : " A civil Court otherwise com-
petent to try it" — this Court was competent to try it — ^** shall
take cognisance of any such claim upon receiving a certificate
from such Collector." When the Court received the certificate it
' was bound to take cognisance of the claim ; and it seems to their
Lordships that finding an existing suit when it received the certi-
ficate it might take cognisance of the claim in that suit. The
decision on that point therefore seems to their Lordships to be
correct.
The result is that the decree of the Chief Court of the Punjab
should be affirmed ; and their Lordships will humbly advise Her
Majesty to that effect. The Appellant will pay the costs of the
appeal.
Solicitors for appellant : Wathins & Lattey.
Solicitor for respondent : T. L. Wilson.
YOL. IX.] INDIAN APPEALS. 21
CHOORAMUN SINGH Plaintiff ; J. c.*
SHATK MAHOMED ALI, BEBEE JEEaN ] •^«j^2.
(HIS Wife) and AHMED KABIR (his Son) [ ^^^®^^^'^«-
AND CROSS APPEAL BY AHMED KABIR.
ON APPEAL FROM THE HIGH COURT AT BENGAL.
Practice — Decree — Unnecessary Dedarations — Costs.
A mortgagee holding two mortgages of the same property sells under the
second mortgage to the Plaintiff, and subsequently under the first mortgage
to his son benamee for himself : —
Eeldy in a suit against the mortgagee and the benameedars that the Plaintiff
was entitled to set aside this second sale, and to redeem, but that, the mort-
gagor not being a party, the Court was wrong in introducing into the decree
a declaration to the effect that the Plaintiff was entitled *' as second mort-
gagee," and had not acquired the equity of redemption belonging to the
mortgagor.
Such a declaration should in appeal be struck out as embarrassing to the
Plaintiff's title, at the expense of the Respondent who resisted.
Consolidated appeal and cross appeal from an order
of the High Court (March 28, 1879), reversing an order and
decree of the Subordinate Judge of Bhaugvlpore (June 1, 1877.)
The facts appear in the judgment of their Lordships.
The suit in which the above orders were made was instituted
by Chooramtm Singh for a declaration and confirmation of his
title in respect of a certain share of mouzah Mafu, by annulling
an auction sale of the 23rd of October, 1876, held in execution of
a decree purporting to have been obtained by the Defendant
No. 2, the wife, based on a bond dated the 23rd of July, 1871,
which was executed by one Bughoohuns Sahai, the original pro-
prietor of the mouzah and the judgment debtor, in her favour,
at which sale the Defendant No. 3, the son, became the ostensible
purchaser. This sale the Plaintiff sought to set aside on the
* Present: — Lord Blackburn, Lord Watson, Sir Barnes Peacock, Sir
IloBEUT r. Collier, Sir Eicuakd Couch, and Sir Arthur IIobhousse.
22 INDIAN APPEALS. [L. B.
J. O. ground that it had been fraudulently brought about, was wholly
1882 illegal and of no effect, as against a prior auction sale of the same
ChoorImun property held on the 1st of May, 1876, in execution of a decree
Singh wherein the principal Defendant (No. 1), was the decree holder,
Shaik the judgment debtor being the same Bughoohms 8ahai, and the
All purchaser, the Plaintiff Chooraimm Singh. The latter also sought
a declaration that he was entitled as such purchaser to redeem
the said mortgage bond of the Defendant No. 2, the wife, dated
the 23rd of July, 1871.
The Subordinate Judge, although inclined to hold that the real
person interested in all these transactions was the principal
Defendant, and that the Defendants Nos. 2 and 3 were mere
names, still came to the conclusion that the sale sought to be set
aside ought to stand as a good and valid sale held in execution
of a decree pending at the date the Plaintiff became the purchaser,
and of which he had then notice, but eyen assuming that he had
no such notice still his ignorance not being imputable to fraud on
the part of the principal Defendant, the Plaintiff must suffer for
his own negligence.
The Subordinate Judge therefore dismissed the suit.
The High Court on appeal (Birohy and Bomeschvmder Mitter, JJ.),
took an entirely different view. They concurred with the Subor-
dinate Judge in deciding that the names of Defendants 2 and 3,
were used to suit the principal Defendant, who was alone the
party really concerned in the several transactions. They held
that the sale sought to be set aside was a collusive sale and
wholly void ; that the Plaintiff as the purchaser at the first exe-
cution sale became the holder of a charge on the property to the
extent of the purchase-money paid by him ; and that he was en-
titled to redeem the said mortgage bond standing in the name of
the Defendant No. 2, but that by his purchase the Plaintiff did
not acquire the equity of redemption which was vested in Rughoo-
hurts Sahai.
The decree appealed against is as follows : —
" It is ordered and decreed that the decree of the Lower Court
be reversed; and it is further ordered and decreed that the
auction-sale held by the Subordinate Judge of Bhaugulpore on
the 23rd of October, 1876, of the property (the subject of this
TOL. IX.] INDIAN APPEALS. 23
suit), yiz.9 an undivided one-sixth share of monzah Maf% pre- J* 0.
gnnnah Maldahy bearing towzi No. 3698 of the CoUectorate of 1882
£haugulpore, in execution of the decree of the Subordinate Judge Ghooramuit
of Oyoj dated the 6th of September, 1875, in suit No. 124 of ^"^^^
1875, wherein Muasammat Bebee Jeedn was Plaintiff and Lata ^^^^^
Mahomed
Bu>ffhoohtm8 Sahai alias Bomi ImI, was Defendant, be and the
same is hereby set aside : and it is declared that the Plaintiff as
the second mortgagee in respect of the said property, is entitled
to redeem the first mortgage of the said Defendant Mahomed AU,
under the bond executed by the said Lcda BughoohwiM Sahai,
alias Domi LcU^ in the name of the Defendant Bebee Jeedn^ on the
23rd of July, 1871| regarding the said one-sixth share of mouzah
Mafu. And it is further declared that the said Plaintiff has not
acquired the equity of redemption regarding the said property
belonging to the said Lola Bughodbtms Sahai, aiias Domi Lai.*'
Leith, Q.C., and 0. W. Arathoon, for Chooraimjm Singh.
Boyne, for Ahm^ Kahir.
The judgment of their Lordships was delivered by
Lord Blackbubn : —
In this case there are two appeals, an appeal and a cross
appeal. The circumstances under which the point upon which
their Lordships have to express an opinion arises are these : A
family, consisting of the father, the wife, and the son, are the
three Defendants. They have been called Defendants one, two,
and three ; but the expressions, " father," *' wife," and " son,"
which have been used as most convenient, may be used here.
There have been two bonds made creating a charge upon the
estate. The first in point of date was in the name of the wife.
She, on the face of the bond, was the lender of the money. The
next in point of date was a bond in the name of the husband, the
first Defendant. There was a third, also to him ; but that is not
very material to consider. That being the state of things, these
bonds were brought to judgment and execution. The first suit,
instituted against the oHginal grantor of the bonds, was that
which was brought in the name of the wife upon the 7th of
24 INDIAN APPEALS. [L. E.
J. O. July, 1875. The second suit instituted was that which was
1882 brought in the name of the husband ; and that was instituted on
Chooramun ^^^ 24th of July, 1875, very shortly afterwards. The two came
Singh ^q judgment upon the same day, the 6th of September, 1875 ; and
Shaik two judgments were given. As far as there was any question of
Mahomed ..-,. . •■. i*ii mi
All priority the pnor suit was the suit on the prior bond. The execu-
tion of the bond that was in the name of the wife had priority
over the other ; but the execution which was first carried out to
a sale, upon the 1st of May, 1876, was upon the bond wliich was
second in point of date, which bond had been given in the name of
the husband. It was upon that execution that a sale took place,
and at that sale the PlaintiflF became the purchaser. On the 23rd
of October, 1876, some months afterwards, they proceeded to the
sale under the execution which was first in point of date on the
bond that had been in the name of the wife ; and on that sale the
son became the purchaser. The question here is between the
Plaintiff, the purchaser under the first execution, though under
the second bond, and the purchaser under the second sale. The
Plaintiff in substance brought his action to set aside the sale to
the son, and to have himself declared the purchaser ; he expressly
stating in his plaint that he claimed it as purchaser, and to be
entitled to redeem. He did not say that the bond debt to the
father and husband on the second bond was prior in date ; all that
he claimed was that, under the circumstances of the case, he
should be entitled to redeem. The original grantor of the bonds
was no party to the suit, and was not in any way brought before
the Court. That being the state of things, and there being a
great many phrases about fraud and other matters of that sort, the
Plaintiff's contention was that in fact, though there were the three
names used, and though it was said that the money was lent by
the wife on the first bond, and that the son was the purchaser
under the sale, yet in reality the father was the party all through ;
that it was the father who had lent the money in the name of his
wife ; and that it was the father who had purchased in the name
of the son. That was really and truly the contention ; and on
that contention of fact both the Judge of the Inferior Court, aud
the Judges of the High Court upon appeal, have found in favour
of the Plaintiff. They found that the husband or father was
VOL. IX.] INDIAN APPEALS. 25
merely using the names of the others, because the three, the hus- j. o.
band, the wife, and the eon, were living joint in family together; i882
and though some evidence was called to shew that the wife had choobamun
a separate estate, and that she might have been the lender of the Ringh
money, there was no evidence whatever attempted to be given to Shaik
shew that the son had any separate estate, or that he purchased, all "^^
or that the son, in fact, was anything else but what the Plaintiflf
alleged him to be. Their Lordships think that, both the Inferior
Court and the Supreme Court having decided that question of
fact without any apparent difficulty or doubt, they should not
farther enter into the question as to whether it were so or not,
especially as it rather appears as if, upon further entering into the
question, there would be very strong grounds for their Lordships
coming to the same conclusion as that at which the Courts below
arrived. When once it is established, as their Lordships now
take it to be, as a fact to start with, that the purchase under the
second sale was by the Defendant, the husband or father, himself,
who had himself caused the first sale to take place and then pur-
chased under the second sale, it is quite clear that that could not
stand against the purchaser under the first sale and it is clear that
it must be set aside. The High Court in altering the judgment
of the Court below, say that being so, it must be set aside, and
the Plaintiflf is entitled to redeem. But then, unfortunately, the
Court, strongly impressed with the fact that the original mort-
gagor might have been ill-used or might have some claim, went
on to declare something favourable to the original mortgagor,
who was not before the Court at all, and which might very
possibly embarrass the Plaintiflf in his title. Accordingly, he com-
plains that when they made their decree they put in unnecessary
matters. The decree as actually drawn up would be all right
until it comes to " be and the same is hereby set aside." Then,
as it stands at present, it goes on, '' And it is declared that the
Plaintiflf, as the second mortgagee in respect of the said property,
is entitled to redeem the first mortgage of the said Defendant,
Mahomed Ali" It seems to their Lordships that it was quite un-
necessary and irrelevant to say whether it was as a second mort-
gagee or whether it was as a purchaser. It may be that the
original grantor of the bond might be induced to make out some
26 INDIAN APPEALa [L. B.
J. 0. case or other that there was res jvdicata in his faYOur on these
1882 words, and consequently their Lordships think that those words,
ChoobTmun " as the second mortgagee in respect of the said property," should
Singh y^ struck out. It then goes on to the end of the sentence, as to
Shaik which there is no objection ; and then it says, " And it is further
All declared that the said Plaintiff has not acquired the equity of re-
""~ demption regarding the said property belonging to the said Lola
Rughoobtms 8ahad, alias DonU LcU.*' Now that is a question
which, if raisable at all, as to which their Lordships express no
opinion, can be raised only by Lola Bughoohuns Sahai, and has
nothing to do with this suit That declaration, therefore, ought
also to be struck out. That is really the only alteration. In
every other respect the decree of the High Court seems to be per-
fectly right. In those respects it should be altered.
The cross appeal is upon the question of fact which has already
been mentioned. It is brought by the son, who also opposes the
first appeal The son's case upon the cross appeal is that he was
not merely benamee for his father ; but he produces no evidence^
nor does he shew that any evidence ever was produced, to shew
that he was not a mere name. Both the Courts below have
thought that he was so ; and consequently he faUs on that. The
result is that the decree stands, with the alteration mentioned, and
the cross appeal is dismissed.
There remains only one other question, what is the effect on the
costs of the litigation ? The general rule is, that where an Ap-
pellant succeeds he gets the costs of the appeal, and that where a
Bespondent succeeds he gets the costs. The question now is,
whether there is any ground for altering that general rule. The
cross appeal, which is brought on the question of fact, and which
the Appellant was fully entitled to oppose, has been decided
against the cross Appellant and in favour of the original Plaintiff:
and no reason whatever can be suggested why it should not be
with costs. As to the first appeal the matter is not quite so clear.
The alteration made is leaving out a portion of the decree of the
Court below, which it seems was quite unnecessary, and which
their Lordships think the Plaintiff had a right to complain of and
to get rid of as embarrassing to his title. The question is,
whether or no there may be some plausible grounds for saying
VOL. IX.] INDIAN APPEALS. 27
that that should not be done at the expense of the Elespondent. J. 0.
The Respondent appeared and resisted it. Their Lordships are 1882
of opinion that there are no grounds for excepting this case from ohoobamuk
the operation of the general rule and that the general rule should ^^^^°
prevail. Shaik
The result is that their Lordships will humbly advise Her ali.
Majesty that the decree of the High Court should be altered in
the manner already mentioned^ and that the cross appeal should
be dismissed, and that both should be with costs to the Plaintiff.
Solicitor for Appellant : T. L. Wilson.
Solicitors for Kespondent Ahmed Kahir : Eendersana dt Co.
DOOEGA PEEISAD Defendant ; j. c*
AND
1882
EESHO PERSAD SINGH and Another . . Plaintiffs. J^n, 13.
ON APPEAL PROM THE HIGH COURT AT BENGAL.
Act XL. of 1858, ». 3 — Chuardianshtp — Fower of Manager in respect of Infa/nt
Co'sharers,
The manager of an estate is not the guardian of in&nt co-proprietors of
that estate for the purpose of binding them by a bond, or of defending suits
against them in respect of money advanced with reference to the estate,
unless he has obtained a certificate of administration under Act XL. of
1858, s. 3.
Appeal from an order of the High Court (Aug. 7, 1879),
which modi6ed an order of the Subordinate Judge of Bhagvlpore
(Feb. 8, 1877). The case in the High Court is reported in
17 Suth. W. R. 237.
The Bespondents as minors sought for a declaration that a
certain decree which the Appellant had recovered against their
uncle Sheo Ntmdim Singh, on his own behalf, and also as their
guardian, being the eldest male member of a joint Hindu family,
• Present: — Lord Blackburn, Lord Watson, Sir Barnes Peacock, Sir
Robert P. Collier, Sir Kichard Couch, and Sir Arthur Hobhouse.
28
INDIAN APPEALS.
[L. R.
J.C.
1882
DOORGA
Peesad
V.
Kesho
Pebsad'
Singh.
ought not be executed against their property, on the grounds that
the debt contracted by their ancestors for which the decree was
obtained was not contracted for legal necessities, and was not
binding on them, that their uncle was not their properly consti-
tuted guardian, and that in the suit in which the decree was so
obtained against them they were not properly represented.
For the defence it was urged that the debt for which the
decree was recovered was an ancestral debt incurred on a running
account and on several adjustments thereof made from time to
time by different members of the joint family, acting as the
managers and hurtas for the others according to the usual custom
in joint Hindu families; and that these debts were principally
incurred for the payment of Government revenue, necessary, and
legal expenses, religious obsequies, and social observances.
The Subordinate Judge was of opinion that the debt had not
been contracted for any pressing necessity, nor for the benefit of
the minors' estate ; that the Appellant did not inquire as to the
existence of any necessity for the advances ; and that in the suit
which culminated in the decree the minors were not properly re-
presented. An order was therefore made that the decree was not
to be executed against the minors' shares.
The High Court so far modified this order as to declare that
the minors were liable for so much of the debt as was due when
their father Lalji died. That debt, being the debt of a joint
Hindu family, the minors were responsible for their quota thereof.
Doyne, Q.C., and Arathoon, for the Appellant.
Oraham, Q.C., and Woodroffe, for the Respondents, were not
called upon.
The authorities cited were Htmoomanpershad v. Mt Bahoojee (1),
and Maynes Hindu Law, §§ 264, 5, 9.
The judgment of their Lordships was delivered by
Sir Barnes Peacock : —
This is an appeal from a judgment of the High Court in a suit
brought by the Respondents, who are infants, in the name of their
(1) 6 Moore's Ind. Ap. Ca. 893.
VOL. IX.]
INDIAN APPEALS.
29
guardian, against the Appellant, in the Court of Bhagulpore.
The object of the suit was to prevent the Appellant from executing
a decree which he had obtained against the Eespondents. The
case arose in this way : The Plaintiffs and 8heo Nimdim and Eur
Nvmdv/ay were members of a joint Hindu family, and joint pro-
prietors of an ancestral family estate situate in the district of
Bhagulpore and subject to the Mitakshara law. The suit in which
the decree was obtained was brought on a bond, dated the 2l8t of
April, 1870, for Es. 16,348, executed by Bur Nundun on behalf
of himself and as uncle and guardian of the present Plaintiffs.
Eur Nundtm was not at the time when he executed the bond the
guardian of the present Plaintiffs, or at any time the manager of
the estate ; the elder brother, Sheo Nu/ndim, after the death of
Lalji, the father of the present Plaintiffs, was the manager. The
suit in which the decree about to be executed was obtained was
brought against Sheo Nu/ndv/n ai;id the present Plaintiffs. The
present Plaintiffs being minors, the suit was stated to be brought
against Sheo NtmdvM as heir of Eur Nu/ndtm, and against the
present Plaintiffs under the guardianship of Sheo Nmhdum^ and
Mussamat Ohuneshyam Eotmari, mother and guardian of the
minors. It turned out that the mother was not the guardian ;
that although a certificate of guardianship had been granted to
the mother, that certificate had been set aside, and that the
mother really was not the guardian. An ex parte decree was
obtained against the Defendants ; but the mother came in and
asked to have the decree set aside upon the ground that no notice
had been seryed upon her. The Court ordered that the case
should go down for another trial, but upon the second trial the
Judge who tried the case struck out the name of the mother and
did not allow her to appear as the guardian of the infants. The
suit was decreed against Sheo Nu/ndun Persad and the Plaintiffs
for the total amount of the bond, with interest. The Plaintiffs
contend that that decree was not binding upon them, inasmuch
as they were infants at the time, and were not represented by a
guardian. On the other hand, it is contended that Sheo Nundun
Fersady who was named as guardian in the suit, was their guar-
dian, he being the co-proprietor and manager of the estate. It is
clear that the manager of an estate although he may have the
J.C.
1S82
DOOKQA
Feksad
Eesho
Persad
S»NGH.
30
INDIAN APPEALS.
[L.B.
J. 0.
DOOEGA
P£BSAD
V,
Ebsho
Persad
Singh,
power to manage the estate, is not the guardian of infant co-pro-
prietors of that estate for the purpose of binding them by a bond,
as Eur Nundmb did, or for the purpose of defending suits against
them in respect of money advanced with reference to the estate.
Act XL. of 1858, passed for making better provision for the care
of the persons and properties of minors in Bengal^ enacted, sect. 2,
that, " except in the case of proprietors of estates paying revenne
to Government, who have been or sbdl be taken under the pro-
tection of the Court of Wards," — which does not apply to this
case, — " the care of the persons of all minors (not being European
British subjects), and the charge of their property, shall be sub-
ject to the jurisdiction of the Civil Court." That shews that Sheo
Nwndv/n, Persad, although he was a co-proprietor and manager of
the estate, was not the guardian of the infants, who, according to
the Act, were subject to the jurisdiction of the Civil Court. Then
sect. 3 enacts that *^ Every person who shall claim a right to have
charge of property in trust for a minor under a will or deed, or
by reason of nearness of kin or otherwise, may apply to the Civil
Court for a certificate of administration ; and no person shall be
entitled to institute or defend any suit connected with the estate
of which he claims the charge until he shall have obtained such
certificate." No certificate was obtained by Sheo Nundun Persad ;
and although it is stated that he was the guardian of the infants,
he clearly was not the legal guardian, and had no right to defend
that suit in their name. The decree in the suit, therefore, was
not binding upon the infants. The Plaintiff in that suit attempted
to execute his decree against the property of the infants. The
Judge of the First Court says : — " Sheo Nimdv/n Persad's entire
ancestral property, and what he had inherited after the death of
Hur Nv/ndwa as his legal heir, were sold for satisfaction of several
decrees." He had, therefore, no property upon which the decree
could be executed; and therefore the Plaintiff in that suit
attempted to execute the judgment which he had obtained against
the minors by seizing their property in execution of the decree.
The object of the suit under appeal was to declare that the Plain-
tiff in the former suit was not entitled to execute the decree
against the infants' property and to restrain them from executing
it against that property.
VOL. IX.]
INDIAN APPEALS.
31
Then it was attempted to shew that, although the decree had
been obtained against the infants without their haying been re-
presented by a gnardian, still the suit was brought for a debt for
which they were liable. Whether that could justify the execution
of the decree it is not necessary now to inquire, because the
Courts below went into the question whether the bond was given
for a debt for which the infants were liable, and held that it was
not After stating all the facts of the case, the Judge says, *^ It
would appear that the debt was contracted by a person who was not
manager of Plaintiffs' estate ; that it was not for any unayoidable
or pressing necessity, or for any benefit of the estate of the Plain-
tiffs ; that the Defendant did not inquire into these matters ; and
that he obtained a decree in a case wherein the Plaintiffs were not
properly represented. The decree cannot, therefore, be enforced
against the person or property of the Plaintiffs."
The case was appealed to the High Court, and that Court came
to the same conclusion with reference to the greater portion of
the debt included in the bond, viz., that the money had not been
borrowed on account of any necessity; that* it had not been
borrowed for any benefit to the estate ; and that no inquiry had
been made by the Plaintiff in the suit, at the time when he
advanced the money, as to whether those advances were necessary
for the protection of the estate or for the benefit of it ; and the
High Court therefore upheld ,the decision of the First Court to a
certain extent. But then they found that a portion of the debt
for which the bond was given was a debt which was due from Lalji,
the father of the present Plaintiffs ; and they held that although
the present Plaintiffs might not be liable upon the decree, they
were bound to pay the debt due from their father. The debt
which was due from their father was a sum of about Bs.10,623.
The High Court, however, did not award the whole of that sum
against the Plaintiffs. After stating that the father was liable for
the original debt to the extent of that amount, they say, **But
the original debt due from the Plaintiffs' family has been appor-
tioned amongst the several members, who have now separated.
The Plaintiffs, whose share in the family property is one-sixth, are
therefore liable to that extent for the amount which was due from
J. C.
18S2
DOOBGA
Pebsad
Kesho
Pebsad
Singh.
32
INDIAN APPEALS.
[L.K.
J. 0.
1882
DOORGA
Pebsad
Kesho
Pebsad
Singh.
their father and the other members of the family at the time of
his death." It is objected that the decision of the High Court
was wrong in that respect, and that if the Plaintiffs were liable
for the debt of their father they were liable for the whole amount
of the debt. But it appears to their Lordships that the Plaintiffs
were not liable for the whole debt for which their father and the
other joint members of the family were originally liable, the debt
having been apportioned amongst the several members of the
family, who had separated, and several bonds given for the
several portions of the debt. It appears, therefore, to their Lord-
ships that the High Court.was right, and that the infants were
not bound to pay tbe whole of the debt for which the father was
at one period jointly liable with the other members of the family,
and that they were liable only for the father's portion of the
debt.
Under these circumstances their Lordships are of opinion that
the High Court came to a correct decision ; and they will humbly
advise Her Majesty that the decree of the High Court be affirmed.
The Appellant must pay the costs of this appeal.
Solicitor for Appellant : T. L. Wilson.
Solicitors for Bespondent : Watkins & Lattey.
VOL. IX.] INDIAN APPEALS. 38
MUSSUMAT BILA8M0NI DASI and Othbbs Defendants; JC.*
AND 18«1
RAJAH SHEO PERSH AD SINGH . . . Plaintiff. ^?t».30;
Dao.1.
ON APPEAL PROM THE HIGH COURT AT BENGAL. 1882
Jan, 21.
Congtruction — Mokurruri Jjara Pottah, .—
A mokurmri ijara pottab does not necessarily import perpetaity. '* Mokor-
niri " may do so but not necessarily.
Held, on a consideration of tbe object of the pottah and its language and
provisions as well as surrounding circumstances, that the intention to grant
a perpetual lease did not sufficiently appear.
Appeal from a decree of the High Court (Aug. 30, 1879)
whereby a decree of the Subordinate Judge of Bhatigulpore
(June 23, 1877) was reversed and tbe Bespondent was awarded
possession of mouzah Bhalwana with mesne profits.
The facts of the case appear in the judgment of their Lord-
ships.
Leith^ Q.G., and Doyne, for the Appellants, contended that upon
a due consideration of the terms of the pottah it was intended to
confer and did confer a permanent and hereditary tenure. The
pottah was granted eight months after the settlement and was in
terms similar to those of the government pottah. As there was no
question regarding the hereditary and permanent character of
that settlement, it was contended that at that date and in that
district words of inheritance were not regarded as necessary or
usual in making permanent grants. In a case of LaidJey v.
Hurdaal Augvstie, unreported, the High Court had construed a
lease which contained no words of inheritance as being an here-
ditary lease. Supposing the terms of the pottah to be doubtful
the reasonable presumption from the evidence as to the condition
of the mouzah at its date and from the language and conduct of
the parties afterwards was that they intended to give and take
* Present :— Sib Barnes Peacook, Sir Montague E. Smith, Sis Biohabp
Couch, and Sir Arthur Hobhouse.
Vol. IX. D
34 INDIAN APPEALS. [L. B.
J. 0. a permanent tenure. Reg. XLIV. of 1793 was in force when
1881-2 the pottah was granted.
MUSSTJMAT
BiLASMONi Come, Q.O., and Woodroffe, for the Respondent, contended that
^. ^ the pottah in question did not create and was not intended to
^p^^^^ create a permanent hereditary tenure, that it enured only for the
Singh. life of Boghunath Singh and that therefore at his death the Re-
spondent was entitled to enter upon and resume direct possession
of the mouzah. [Sib Barnes Peacock referred to Reg. VIII. of
1793, sec. 16, which declares that certain mokurruridars should be
treated as life owners.] See Jola Singh v. Meer Najeel OoUah (1).
Reference was also made on the question of construction to Behee
Sowlutoonissa v. Bolert Savi (2) ; Sarohur Singh v. Bajah Mohen-
dernarain Singh (3) ; Baboo Dhwnput Singh v. Oooman Singh (4),
referring to Doe v. Watson in Mortons Reports (5) ; LekraJ Boy
V. Kv/nhya Singh (6).
Leithy Q.G., replied.
1882 The judgment of their Lordships was delivered by
/on^i. gjg Richard Couch :—
This is an appeal from a decree of the High Court of Cdleutta
whereby the decree of the Subordinate Judge of Bhaugulpore was
reversed, and the Respondent the Plaintiff in the suit was awarded
possession of mouzah Bhahva^m with mesne profits thereof from
the 22nd of August, 1876, together with interest and costs.
Mouzah Bhalwana is situate within and forms part of pergunnah
OedhouTy the Respondent's ancestral zemindary. On the 2l8t of
February, 1798, a pottah was granted by the government to Rajah
Oopal Singh and Rajah Bharat Singh, therein described as zemin-
dars of pergunnah Oedhov/r, in which it is stated that the annual
consolidated jumma of the said pergunnah, inclusive of the ganjats,
markets, bazars, all sayers and motahariffits, and al^o of rent-free
lands held under sunnuds and without sunnuds, had together with-
. the fee of kanoongoes, been fixed and assessed permanently at sicca
(1) 4 Sel. Rep. 271. (4) 11 Moore's Ind. Ap. 433, 463.
(2) S. D. A. (1859) p. 1575. (5) 1 Morton, p. 255.
(3) S. D. A. (I860) p. 577. (6) Law Rep. 4 Ind. Ap. 223, 225.
Singh.
VOL. IX.] INDIAN APPEALS. 35
E8.1501 from 1205 Fasli. In the register of pergannah Oedhour J.O.
for the year 1205 Fasli, the gross proceeds of mouzah Bhalwana 1882
are entered as B8.6. 3a. lOp., and the sudder jnmma as Es.4. la. 5p., mussumat
and it is not disputed that at that time it was almost wholly in ^^^^si^^'
jangle and unprofitable. It appears from the thakbnst map «•
which was prepared in 1846 that the entire area of the mouzah is Pebshad
7500 bighas, of which 3000 were then under cultiyation.
On the 28th Kartick 1206 Fusli, corresponding with the 21st of
November, 1798, Bajah OopcU Singh granted to Boghunath Singh,
the father of the Appellant, ^mJLoS Singh, a pottah in the terms
following : —
** I haye acquainted myself with the contents of this.
** The stipulation of pottah granted on receipt of kubulyut to
Boghmiath Singh, mokurruri ijardar of mouzah Bhalwana, apper-
taining to pergunnah Oedhour, in the sircar and province of
Behar, on behalf of Bajah Chpal Singh, is to the effect and purport
following : —
'^Whereas the mokurruri ijara potta of the said mouzah is
granted from 1206 F. S., at a consolidated jumma specified below,
inclusive of mcUikana, subject to no objection or excuses on the score
of calamities of weather, together with fisheries and fruit trees ; with
the exception of dhkari and toddy gunjes, bazars, kdtUs, all sayer,
mothwrfa (taxes levied on professions), lakheraj lands, covered by
sunnuds and not covered by sunnuds, rosum of rommdars, daily
allowances o{ rozam,adarB, and chandas of chandadars ; the above-
named person should, with ease of mind, make cultivation and im-
provement, pay the above amount year after year, crop season after
crop season, instalment after instalment, as per kistbundi, in full,
into the treasury of this Sircar (Kajah) raise no objection whatever
on the score of drought, inundation, hail storms, deaths and deser-
tions, but himself bear the losses arising therefrom. In addition
to the above jumma, whatever profits may be derived from salu-
tary improvement in cultivation by him shall belong to the
mokurruridar, the Sircar having nothicg to do with the same. In
case of non-payment of instalments agreeably to the kistbundi,
month after month, the mutsuddis of the Sircar shall have autho-
rity to realize the arrears by sale of the goods and chattels of the
above-named, to send sazawal or attaching officer to the said
D 2
Singh.
36 INDIAN APPEALS. [L. R.
J. 0. village, and make and receive the collections. The expenses of
1882 entertaining sazawal, tehsildar, and others shall be borne by the
MussDMAT above-named. He should keep the tenants of the said village
^'da8i^^^ satisfied and contented by his good treatment, and make collec-
ts, tions from the tenants according to order of government, agree-
P£B8HAi> ably to pottas of nukdi and IhowU lands to be granted to them,
and never demand any sum in excess. He should not in any way
commit oppression upon tenants, so that they may be able to
stand to their engagements, and he should not oust them until
the determination of their leases. He should grant receipts to
the tenants upon payment of rent, instalment after instalment.
He should not give a single span of land in the said village with-
out asking permission and without consent of the huzoor, nor
resume any previously granted without the orders of the huzoor.
Should the said lakheraj lands be hereafter resumed under orders
of the huzoor, and the huzoor be pleased to make a settlement
of the rent thereof with the ticca mokurruridars, then the above-
named shall pay the rent thereof according to the settlement to
be made by the huzoor. He should not suffer a single span of
the land on the limits and boundaries to pass and to be included
in the boundary of others. Should it so happen he should of his
own accord inform the Sircar of it, have the matter settled with
the aid of the Sircar, and maintain and preserve the boundaries
and limits of the said mouzah. He should not allow thieves and
padders to settle within the estate leased to him. God forbid I
should anybody's property be robbed and plundered he should
trace out the thieves and robbers with the property, and produce
them before the thanadar or the district authority. Should the
thanadar apprehend the robbers and apply to him for aid, he shall
forthwith afford assistance to him. He should bring without fail
to the notice of the huzoor whatever property may be found be-
longing to dead persons, or that is deserted or lying buried under
ground, without heirs to claim it. He should act in strict con-
formity with the orders already passed or to be hereafter passed
by the huzoor for regulating settlement of rent with tenants and
malguzars of all classes, and should never raise any excuse or
objection whatsoever. He should not demur or put forward any
excuse in this, and should act up to the above.
VOL. IX.] INDIAN APPEALS. 37
" Eent for four years to be paid without any objection or excuse. j. 0.
"R8.24. 1882
"For 1206 Fusli 6
McSSUtfAT
BiLASUONI
1207 „ 6 '>A8i
tf.
1208 „ 6 Ra.iahSheo
1209 „ 6
Pebshad
Singh.
^ Uniform rent from 1210 Fusli to be paid year after year, crop
season after crop season, without any objection or excuse, sicca
Bs.25 current in the province. '
« One half of which is K8.12. 8a.
« Dated 28th Kartick 1206 Fusli."
Boghtmath 8mgh executed a corresponding kubalyut bearing
the same date.
The other Appellants are the representatives of the Defendants
in the suit who derived their title from BoghuncUh Singh and
denied the Plaintiff's title; and no question is raised in this
appeal as to their derivative title, nor as to Rajah BTiarat Singh
not having joined in the pottah.
On the death of Eajah Oopal Singh in or about October, 1812,
his son Rajah Jeswant Singh declined to receive the rent of
mouzah Bhalwcma, alleging that his father had taken possession
thereof at the end of the year 1219 Fusli under Regulation VII.
of 1799, and that a fresh pottah had been granted to Boghunath
Singh for eleven years from 1220 Fusli, at the yearly rent of
Rs.51. Thereupon summary proceedings were taken by Boghu-
nath Singh to compel the Rajah to receive his rent at the old
rate, the result of which was that Jeswant Singh was referred to
a regular suit if he desired to substantiate his allegation.
On the 13th of February 1821, Rajah Nawab Singh, the
younger brother and successor of Jeswant Singh, who had died in
the previous year, brought a suit in the Court of the Registrar of
Monghyr against Boghunath Singh and his surety to recover the
rents then due for mouzah Bhalwafia under the alleged lease for
eleven years. In his answer Boghunath Singh asserted that he held
under the pottah of 1798, and denied the eleven years' lease. And
the district Judge, by a decree made on the 9th of January, 1826,
38 INDIAN APPEALS. [L. R.
J.O. on appeal from the decision of the Begistrar, directed that
1882 Boghimath Singh should remain in possession in accordance with
MussuMAT the pottah of 1798, and pay the rent therein reserved.
^'nfsi^^ In 1869 the Respondent succeeded to the zemindary, and on the
«. 24th of July, 1875, Boghimafh Singh died. This suit was brought
Pebshad on the 22nd of August, 1876, and the only question in the appeal
^^^ before their Lordships is whether the pottah is a lease for life or in
perpetuity.
Their Lordships were referred by the learned counsel for the
Bespondent to several cases in the late Sudder Court in which
it was ruled that a lease at a fixed rent without more did
not import perpetuity, and that to create a perpetual lease the
addition of the words " from generation to generation," or other
words importing perpetuity, were necessary.
On the other hand, it was held by the High Court at Oaleutta,
in a case of ghatwallee tenure, where the words " mokurruri
istemrari " were used, that the holding was perpetual (1). But
this Committee, on an appeal from that decision, held that these
words might mean either permanent during the life of the person
to whom the grant was made, or permanent as regards hereditary
descent (2).
In the present case the word " istemrari " is not used. The in-
strument is called " the mokurruri ijara pottah," and their Lord-
ships, in the case of the Bengal Oovernment v. Natvah Jafir
Eo88ein Khan (3), stated their opinion to be that though " mokur-
ruri " might import perpetuity, that was not the necessary meaning
of the word.
The question then is, whether the intention of the parties is
shewn by the other terms of the instrument, the circumstances
under which it was made, or the subsequent conduct of the parties,
with sufiScient certainty to enable the Courts in the absence of
words importing perpetuity to pronounce that the grant was per-
petual ? The Subordinate Judge held that the pottah was intended
to be hereditary, because it appeared that the mouzah was covered
with jungle when the mokurruri was granted, and that it had
since been brought under cultivation through the exertions and
(1) 3 Suth, W, R. 84 ; 6 Suth. W. R. 101. (2) 13 Beng. Law Rep. 133.
(3) 5 Moore's Ind. Ap. Ca. 498.
SiNOH.
VOL. IX.] INDIAN APPEALS. 39
labour of the original mokurmridar and his representatives, and J. a '
therefore it might» ** consistently with the principles of equity, be 1882
presumed that the lessor and lessee must have thought at the mussumat
time that the lease in question should be granted in perpetuity, ^^5a2i^^^
because it is yoid of reason to suppose that the lessee should have v-
taken the lease for his life, and brought it under cultivation at Pebshad
heavy expense and through great exertion." As to the sub-
sequent conduct of the parties, he said that if the representatives
of Gopal Singh " had considered the lease as one for life, they
would have never adopted such steps as were incompatible with
their position and dignity to cancel such life interest as was
thought by themselves to last only for a few days, and Boffhu-
naih Singh himself would not have described the mokurruri as a
permanent one." Their Lordships are unable to see the force of
this observation ; but it appears from it that the Subordinate
Judge did not fail to consider everything that he thought might
riiew the intention of the parties. It is therefore to be remarked
that he did not refer to any of the provisions in the pottah or of
the words used to express them. Apparently he thought they did
not shew any intention that the pottah was to be perpetuaL
The High Oourt agreed with the Subordinate Judge that the
lease was granted with a view to the improvement of the mouzah,
but thought that thb did not shew it wais intended to be here-
ditary, and referred to some of the provisions which they said
seemed necessarily to imply that a substantial interest in the pro-
perty remained in the Bajah, and were quite inconsistent with his
having permanently parted with that interest. Their Lordships
do not concur in all the views taken by the High Court of these
provisions, but on the other hand they do not find in them sufiS-
cient to shew an intention that the lease should be permanent.
They are consistent with either intention.
A case in the High Court at CalevMa, printed in the Record
was referred to by the learned counsel for the Appellants, in
which Mn Justice Hitter said, — " We do not find it usual that
tenants taking upon themselves the trouble and outlay for clear-
ing and reclaiming jungle lands are contented with anything
short of hereditary interest in them." But the judgments of the
learned Judge and the lower Court are expressly stated to be
4:0 INDIAN APPEALS. [L. E.
J- 0. founded upon the fair construction of the terms of the grants, and
1882 the surrounding circumstances attendant on the execution of
MussDMAT them, as well as the conduct of the Plaintiff in connection with
^Afii^^ ^^^ <^d similar other tenures in his zemindary. The learned
Bajah* Shko "^^^S^ ^^y r6fej*8 to what is usual as a circumstance which supports
Pebshad his view.
Their Lordships wonld repeat what was said by this Committee
in Baboo Dhtmput Singh v. Ooomcm Singh (1), where it was
proved that the hereditary character of the pottah had been re-
cognised by the successive zemindars. ** If, on the one hand, it
is improbable that the grantee should undertake such an obliga-
tion without some fixity of tenure and some assured and permanent
interest in the lands, it is, on the other hand, equally improbable
that the grantor should part for ever with all his interest in the
improveable value of the lands."
As the Appellant is unable to point to any words in the pottah
importing perpetuity, it appears to their Lordships, upon a con-
sideration of the object of the pottah and its language and provi-
sions, as well as the surrounding circumstances, that the intention
to grant a perpetual lease does not sufficiently appear, and they
are therefore unable to say that the decision of the High Court is
not the right one. They will, therefore, humbly advise Her
Majesty to dismiss the appeal, and the costs thereof will be paid
by the Appellants.
Solicitor for Appellants : T. L. Wilson.
Solicitors for Bespondents : Barrow & Rogers.
(1) 11 Moore's Ind. Ap. Ca. 465.
VOL. IX.] INDIAN APPEALS. 41
THAKURAIN RAMANOND KOER . . . Plaintiff; J^*
AND
1881
THAKURAm RAGHTJNATH KOER and J p^^^.^. ^le^
Anotheb j
1882
ON APPEAL PROM THE COUBT OP THE JUDIOLAlL COMMISSIONER, /^. 21.
OUDH.
ANANT BAHADUR SINGH Plaintiff;
AND
THAKURAIN RAGHUNATH KOER and ) ^
^ > Dependants.
Others j
ON APPEAL FROM THE COURT OP THE COMMISSIONER OP
PYZABAD DIVISION.
Oudh Estates Act, 1869, «. d^Trustee—Dedaratory Suit^Specific Rdief Act.
In a suit by a ^ridow of a deceased talookdar against another widow and
her transferee of the talook for a declaration of the Plaintiff's right to succeed
to the estate in suit after the death of the first Defendant, the latter pleaded
that by virtue of a summary settlement made with her in 1858, a sunnud
granted in 1861, and the entry of her name on the first and third lists pre-
pared under sect. 8 of Act I. of 1869, she had under sect. 9 an absolute
estate with full power of alienation : —
Held, that the Defendant had by her acts and declarations constituted
herself a trusty for the purpose of carrying into effect her husband's will,
and that thereunder the Plaintiff was entitled to the declaration sought.
In another suit by a Plaintiff entitled under the said will in remainder
after the determination of the life estates of the widows, for a declaration of
the invalidity of the transfer of the estate, held that the suit was maintain-
able under the Specific Belief Act , and that although declaratory relief might
have been reasonably refused to him as a remote remainderman in a second
declaratory suit, yet the suit having been wrongly decided against him on
the merits, he was in appeal entitled to the decree sought.
IHESE appeals in two different oases from two different Courts
relate to the same will and estate and were argued successively,
judgment in both appeals being reserved.
Appeal in the first ease from a decree (July 17, 1878) of the
Judicial Commissioner afiSrming a decree of the Commissioner
* Present: — Sib Barnes Peaoogk, Sib Montagus E. Smith, Sib Hobebt
P. GoLLiEB, Sib Bichabd Couch, and Sib Abthub Hobhouse.
42 INDIAN APPEALS. [L. B.
J. 0. of Fyzahad (Nov. 17, 1877), which reyersed a decree (July 5,
1881-2 1877) in favour of the Appellant by the Deputy Commissioner of
Thaktjbain Fyzahad.
^KoEB^ Appeal in the second case from a decree of the Commissioner
«. of Fyzahad (Nov. 17, 1877) affirming save with regard to costs a
Raghunath decree of the Deputy Commissioner (July 2, 1877).
^^ The facts are stated in the judgment of their Lordships.
Anan't
SiNOH LeUh, Q.C., and /• H. AraihooUy for the Appellant, contended
Thakdbain ^^^^ ^^^ Deputy Commissioner was right in holding that Baghu-
Eaghunath natVs letter of the 6th of January, 1860, in which she wrote to
the Government to the effect that her two rival widows would
succeed, and after them the nearest male heirs of her husband
Nihdl Singhy shewed that she had NihaTs will in her mind, and
still considered the widows the proper persons to succeed her.
He was also right in deciding that in the document D Baghimath
admitted that she held the estate of Sihipur in trust. The
Appellant was therefore the eestm que trust of the registered
talookdar and there was abundant authority for the proposition
that Act I. of 1869 had not swept away her rights or relieved
the talukdar from the duty of giving effect to any trusts which
he might have created or recognised. There were admissions of
a trust on the part of the Respondent both before and after the
summary settlement. Reference was made to Thukrain Sookraj
Kowar v. Oovemment of India (1) ; Widow of Shu/rJcer Sahai v.
Bajah KasJid Pershad (2); Hardeo Bux v. Thakoor Jowahir
Singh (3) ; Brij Indar Bahadur Singh v. Banee Janhi Koer (4) ;
Thakoor Shore Bahadoor Singh v. Thakurain Dariao Kuar (5) ;
Seth Jaidiai v. Seth Sita Bam (6) ; Ewrpu/rshad v. Shea Dyai (7).
Cowiey Q.C., and Woodrofe, for the Respondents, contended
that under NihaTs will none of the widows had widow's estates
but only life estates with remainders over. There was nothing
proved in the nature of a trust in favour of the Appellant, there
(1) 14 Moore, Ind. Ap. Ca 127. (4) Law Rep. 5 Ind. Ap. 1.
(2) Law Rep. 4 Ind. Ap. 198, 203 ; (5) Ind. L. R. 3 Oalc. S. 645.
Supp. Vol. 220. (6) Law Rep. 8 Ind. Ap. 215.
(3) Law Rep. 4 Ind. Ap. 193; and (7) Law Rep. 3 Ind. Ap. 269.
again 6 Ind, Ap. 161.*
VOL. IX.] INDIAN APPEALS. 43
was only a statement of the terms under which the Eespondent J. 0.
was willing to carry out the wiU. Under the agreement Boffhii- I88I-2
nath asserted entire command and proprietorship over the estate. THAKiiBAiir
The effect of the confiscation was to destroy whatever rights the ^^^
Appellant may have had in the estate under the will. They were rj^^j^^j^
not re-granted to her. Under Act I. of 1869 the Respondent Ba^iunath
acquired an absolute right in Sihipur as the talookdar thereof,
without reference to her title from her husband. There was no b^adub
proof of any declaration of trust. The expressions relied on upon s^^gh
V,
the other side are rather expressions of an intention as to what Thasubain
should become of her property after her death, than as a declara- kobr.
tion of trust or intimation that she was no more than a life owner.
The cases cited are distinguishable, for instance in one there had
been no confiscation, the cases of Shmker Sahais widow and
Ewrdeo Bux were those of excepted estates. The case in 14th
Moore was one of the grossest fraud.
Further, the Appellant was not entitled to a declaratory decree.
See Thakoor Been Tewarry v. Na/wah Syed Alt Eossem Khan (1).
There is a distinction between the right of a mere reversioner to
such decree and the right of one who stands in the position of
guardian of the inheritance. See Shivagunga Case (2) ; Oarlick
V. Lawson (3) ; Lady Langdale v. Briggs (4) ; PranptUtee Eoonwar
V. Lalla Futtah Bahadoor (5) ; Bani Anvmd Koer v. The Covrt of
Wards (6) ; Act I. of 1877, sect. 42 clause d. These authorities
apply still more strongly to the case of the Appellant in the
second case.
Ldth^ Q.C., replied.
The judgments of their Lordships were delivered by 1882
Sib Kobeet P. Colliee : — Jan, 21.
THAKURAIN RAMANUND KOER v. THAKURAIN RAGHUNATH
KOER AND Another.
This suit is brought by Baraanand Koer, one of the widows of
Nihal Singh, talookdar of 8ihip%br, against Baghimath Koer,
(1) 13 Beng. L. R. 427. (N.S.) (Oh.) 42.
(2) Law Rep. 2 Ind. Ap. 169. (5) 2 Hay's Reps. 608 ; S. C. Seves-
(3) 10 Hare, App. xiv. ter's Rep. note 638.
(4) 8 De G. M. & G. 391 ; 26 L. J. (6) Law Rep. 8 Ind. Ap. 14, 22.
44 INDIAN APPEALS. [L. E.
J. G. another of his vridows, and Bisheahar Buhsh Sing^ to whom the
1882 latter widow had made a gift of the talook.
Thikurain The suit is described as a suit for a declaratory decree under
^^K^S^ the 6th chapter of the Speeifio Belief Ad, and the plaint prays for
V- a declaration ^' that the Plaintiff is reversioner, and is entitled to
Thakubain
Raghunath succeed to the estate of Sihipwr after the death of the first Defen-
^'"' dant, who holds only a life interest and is a trustee, anything
B^^jjR contained in Act I. of 1869 notwithstanding."
Singh There follows a short statement of facts, viz., that Nihal Sing
Thaeubain was talookdar and owner of SihipuTy that he died in the year 1832,
^^i^wL^ leaving him surviving five widows, of whom the first Defendant is
the third, and the Plaintiff the fourth. That the first widow suc-
ceeded her husband in the possession of the talook, and that
upon her death, the second widow having predeceased her, the
first Defendant succeeded in pursuance of a will of NihcU Sing
and that the first Defendant has acknowledged that she holds a
life estate only under the will. That the said Defendant made a
gift of the estate to the second Defendant on the 27th of February,
1877. The plaint concludes thus : —
^* The Plaintiff submits that, as the first Defendant is only a
holder of a life interest and is a trustee, the gift is invalid. The
Plaintiff therefore prays that she is entitled as a reversioner
aforesaid."
It was not contested that by virtue of Act I. of 1877, sect. 42,
such a suit is maintainable. The case of the Defendants was, in
substance, that Baghimath Koer had, by virtue of a summary
settlement made with her on the 2nd of December, 1858, and of a
sunnud on the 15th of March, 1861, followed by the entry of her
name on the first and third lists prepared by the Chief Commis-
sioner of Oudh, under sect. 8 of Act I. of 1869, as published in
the Oazette of India, under sect 9 of that Act, an absolute estate,
which she had power to sdienate to whom she chose.
The case of the Plaintiff was that, granting the legal title thus
conferred upon the first Defendant, she has so conducted herself
that she must be deemed in equity to be bound to hold the estate
in trust for the purpose of carrying into effect the provisions of
her husband's will.
VOL. IX.] INDIAN APPEALS. 45
Whether or not she has so condacted herself is the question in J. 0.
the cause. 1882
The Deputy Commissioner gave judgment for the Plaintiff, the thakubain
CommiBsioner and the Additional Judicial Commissioner for the ^^^^^
Defendant. Against the judgment of the latter this appeal is v*
preferred. Raqhunath
The will of NihcU Singh is in these terms : —
" I, Nihal Singh, talukdar of Sihipur, do hereby declare in Bahadue
writing that I have married five wives, and therefore I execute ®*^^^
this deed, and deliver it into the custody of Baldi Bam Pandit. Thakubain
' •' Baghdnath
After my death my first wife should become the proprietor of Eobb.
the taluka, and all the goods and chattels that may be in my
house, and she shall support the other four wives by supplying
them with food and raiment, and they shall not claim a share in
the estate. After the death of my first wife, my second wife shall
become the proprietor of the estate ; on the death of the second
wife, my third wife shall become the proprietor, on her death my
fourth wife, and on her death the fifth wife shall become pro-
prietor. After the death of all the five wives, Sheoambar Singh
(may he live long) shall become proprietor of my estate, goods,
and chattels.
** I have reduced the above into writing in order to maintain
the integrity of the Sihipwr estate, and to perpetuate its name
and memory. Every one in my house is interdicted by oath of
my person to do any act contrary to the terms hereof. I pray
God that any one contravening it may be visited with calamity,
similar to what befel the people of Chittawr. The Hindus are
bound by oath of the Ganges^ and the Mahomedans by the Koran,
to act in consonance with the terms hereof. I have no issue, and
therefore I have executed this deed« But if I get a child it shall
succeed to my estate, and manage all the affairs.
« Dated this 5th day of Asarh Badi, 1238 Fusli (30th June,
1831).
" (Signed) Sheodial Mahajan,
** Eesident of Sahibga/nj.
" Witnessed by —
" Gurdial Kaeth, of HirdepuTy and
** Bam Ohulam Lai, of Katra**
46 INDIAN APPEALS. [L. R
J. C. With respect to the devolution of the estate after the death of
1882 the testator, their Lordships adopt the view expressed by the
Thakubain Commissioner in his judgment of the 17th of November, 1877.
^^KoEB^ " Whoever may have been considered * malik * or real owner of
V* the estate, it seems certain that none of the widows eD£:as:ed for
Thakubain . .
. Baghunath it as revenue payers with Government, subsequent to the death of
* Nihal 8ingh. Till after the death of Harpal Singh, shortly before
^^^^^ annexation, the present holder being the senior surviving widow,
8INQH perhaps took an engagement, and was found in possession at
TttAKXjBAiN annexation/*
^Tom^"^^ Had the talookdar left no will, each of the widows would by the
ordinary Hindu law have been entitled to an equal share of the
estate ; and after the death of Harpal (who would seem to have
taken unauthorized possession of it) the three surviving widows
viz., the Defendant, the Plaintiff, and Sheonath the fifth widow
(who has not joined in this suit), would have been entitled to
share it. What was the effect of the sunnud granted to the De-
fendant by the Native Government, if a sunnud was granted to
her, we do not know, but it may not be unfairly presumed to have
been in accordance with her husband's will.
The first material piece of evidence in the case is a letter
(marked 0) from Baghimath to Bamanand, dated the 9th of April,
1856, about two months after the annexation of Ovdh, in these
terms : —
" Accept my good wishes and prayers for you. May God bless
us both. Now the partition deed has been written, but consider-
ing your expenses to be heavy, I will pay you R8.500 per annum,
separate from Sheonath Koer. But mind, you have to maintain
our position ; and after my death all the burden will fall upon
you."
In the absence of any information relating to the " partition "
referred^to, it is difficult fully to understand the meaning of this
letter. It has been argued, with some force, that the payment for
expenses, together with the intimation that the burden of the
inheritance will fall on Bamanand after the death of the writer,
is a recognition that she holds under the terms of her husband's
will.
VOL. IX.] INDIAN APPEALS. 47
The next document relied on by the Appellants is a deed of J- 0.
compromise (as it is termed) dated the 14th of November, 1858, 1882
by which it would appear that certain disputes between the Thakubain
widows were for a time settled. This transaction took place some ^koee^^
eight months after the confiscation of Ovdh (15th of March, rrHAKURAiN
1858), and before anything had been done to reinstate the land- Raghunath
owners. The instrument is in two parts, one executed by Baghvr
nathf the other by the other widows. Bahadur
The latter document, marked D, is as follows : — ^^^^
" Both of us, Bamanand Koer and Sheonath Koer^ co-widows of r^hunath
Thakwr Nihal Singh^ talukdar of Sihipur, &c., do hereby agree with ^^*
our free will and consent and bind ourselves in writing to Thakvr
rain Baghv/nath Koer^ that so long as she lives she may manage
the affairs of the ilaka, &c., and out of the allowance of Bs.400
per annum fixed by her to enable us to pay for the expenses of
our winter clothing, raiment, and charity, and other necessaries of
life, we will defray our expenses and will not indulge in extrava-
gance. We will all three take our food, nice, or coarse, whatever
is cooked, together, and live in harmony with each other. We
will not interfere with the management of the estate. We will
try to maintain and guard what was earned by ThaJcv/r Nehal
Singh, and will not waste it by extravagance. If perchance any
expenses are required for the protection of life, property, or
zemindari, they shall not be incurred without the sanction of
Haghunath Koer.
'^ As long as the said Baghwnath Koer lives and pays both of us
according to the agreement herein recorded, we will not complain
to the brotherhood or to the authorities, and if we do so we shall
render ourselves liable to blame before God, brotherhood, and the
authorities. If God preserves the ilaka in its present condition we
will continue to receive the allowance mentioned above, but if
perchance the estate is increased or decreased we will, of course,
receive the allowance at an increased or decreased rate, as the case
may be. Our parents, brothers, and relations will be allowed to
visit us according to the universal custom of the country."
Though no express mention is therein made of the wiU, their
Lordships regard this document, which recognises the right of
48 INDIAN APPEALS. [L. II.
J. 0. Baghmath to a life estate in the ^itire property to which she was
1882 only entitled under the will, and her duty to pay an allowance to
Thakurain *^® other widows which was only prescribed by the will, as an
^k^e'^^^ aflSrmance by both parties of its binding effect upon them. Shortly
^. after this, viz., on the 2nd of December, 1858, a summary settle-
Thakubai^
Baqhunath ment of a number of villages was made with the Defendant for
^^ three years.
Anant The principal diflSculty in this case arises from the conduct of
Singh the Plaintiff.
Thakubain Subsequent disputes arose, in the course of which the Plaintiff
^^^B^™ repudiated this agreement or compromise, and indeed denied its
existence, while on the other hand the Defendant in the most
explicit terms set up the will, and claimed her rights under it.
On the 30th of March, 1859, the Plaintiff presented a petition
to the revenue authorities, praying that she might be recorded as
owner of one-third of the estate, a claim in direct opposition to the
wilL On the question being referred to the tesildar, the Defen-
dant again set up the will, defended her exclusive possession under
it, succeeded in her defence, and retained possession of the whole
estate.
The litigation seems to have been ended by the following
sulehnamah or deed of compromise on the 9th of December,
' 1859:—
^' We, MiMsU. Katoal Jhari Koer^ Plaintiff, and Raghunaih
KoeTy Defendant, widows of Nihal Singh, deceased, talookdar of
Sihipwt, parganna SvHtanprnr, declare herein that : —
^^ Where there has been going on a dispute between both of as
about the share of inheritance, and the case was pending in the
Court: The Deputy Commissioner of Fyzahad personally came to
Khapradih and disposed of the dispute with onr mutual consent
in the following manner: that residing in Quura or in Sihipur
Khas, Kawal Jhari, Plaintiff, shall get from BaghtmcUh Koer,
Defendant, Es.450 in cash, per annum, for her expenses. Con-
sequently we, the Plaintiff and the Defendant, having com-
promised, have recorded these few words as a deed of compromise
(sulehnamah), that it may serve as a document for the future.
And if ever we bring a claim in this matter we shall render our-
selves amenable to Goyernment.
KOEB.
VOL. IXJ INDIAN APPEALS. 49
** Dated this 9th day of December, 1859, corresponding with j. o.
the 14th of Aghan Sudi." 1882
In Jannarj, 1861, a letter, probably a circular letter, was sent ^^^^und
to the Defendant, no copy of which is, nnfortnnately, to be found I^o^a
in the record, and whose purport can only be collected from her Thakukaik
answer, which is in these terms (it is called Document E) : — Koeb!
** Sir, — I have the honour to acknowledge the receipt of your anant
parwana (letter), dated the 7th of December, 1860, inquiring as to ^g^a "
whom I wish to bequeath my estate after my death, and what ^-
X HAKUBAIlV
relationship he bears to me. Baohunath
** Sir, so long as I live I shall continue to be the proprietor and
mistress of my estate. After my death my rival widows, Mt.
Sheo Nath Koer and Bamanand Eoer^ shall succeed to my heritage
and the estate. But I must note that none of my two rival
widows shall have power to alienate the estate by gift, transfer, or
grant to any of their relatives, or to any stranger after my death,
except Bam Sarup Singh and BcUhhadar Singh^ talookdars of
Khapradih. After my death, and after the death of the two rival
widows. Bam Sarup Singh and Balbkadar Singh, talookdars of
Khapradih, shall inherit the estate and all our legacy. The said
talookdars are my great grandsons as described below.
^^My husband, Thahwr Nehal Singh, had an elder brother,
Oanga Parahad Singh. My husband was killed and left no issue.
Ganga Farshad Singh had three sons, Sheo Sewak Singh, Hubdar
Singh, and Harpal Singh. Harpal Singh also was killed and left
no issue. Rvhdar Singh had a son, by name Bhairon Singh, who
died during the lifetime of his father ; soon after Hubdar Singh
was also killed. Sheo Sewak Singh had a son, by name Sheoambar
Singh. The latter has left two sons. Bam Sarup Singh and fio/-
Ihadar Singh, talookdars of Khapradih, who shall succeed us and
inherit all property.
*' Petition of Baghunath Koer, talookdar of Sihipur, &c., pargana
SvJtanpur.
"Dated this 6th day of January, 1861."
It should be mentioned that another translation of this letter
represents the inquiry to have been ** whom she wished to appoint
as her successor."
Vol. IX. E
60 INDIAN APPEALS. [L. B.
J. 0. On the 15th of March following the Defendant received a
1882 sunnud, whereby an estate of inheritance according to the law of
Thakubain primogeniture, together with full power of alienation, was granted
HaMANUND 4.^ r ^^
KOEB to *^®r.
^- The letter of the 6th of January is treated by the two Appellate
X HAKU ttAIN
Eaghunath Courts as simply a will, revocable by the testatrix and revoked by
her when she made the gift to her nephew, the second Defendant,
Bahadub ^^o> ^t ^*y ^® stated, is not a member of her husband's family.
Singh If it had stood alone it might have been so treated, according to
Thakubain the view of this Committee in the case of JStirpurshad v. 8heo
^Kora?^™ I^ycfi (1)> with reference to a somewhat similar document, but
which, having been acted. upon, was there treated as amounting
to a conveyance inter vivos. Bat, looking at the document in
connection with the will of NihaJ Singh, the other documents, and
the conduct of the Defendant in the suit before the revenue
authorities, their Lordships regard it rather as a declaration that,
on her death, the estate would devolve according to the directions
of the will.
The doctrine that, notwithstanding the confiscation of the land
in Oudh by the proclamation of Lord Canning, its restoration by
his circular letter of the 10th of October, 1859, aflSrming the
absolute tirle of the grantees of summary settlements, and the
. granting a sunnud with the full power of alienation, confirmed by
the Oudh Estates Act of 1869, the legal owner may, either by
express agreement or by his conduct, constitute himself in equity
a trustee for others as to the whole or part of the beneficial interest,
has been afiSrmed by many decisions of this Board.
This doctrine was first laid down in these terms in the judg-
ment delivered by Lord Justice James in the case of Thukrain
Sookraj Eowar v. The Government and Others (2) : —
« It (the Government letter of the 10th of October, 1859) gave
the registered talookdar the absolutely legal title as against the
State, and against adverse claimants to the talookdari ; but it did
not relieve the talookdar from any equitable rights to which, with
a view to the completion of the settlement, he might have sub-
jected himself by his own valid agreement. In this case the
(1) Law Rep. 3 Ind. Ap. 269. (2) 14 Moore's lad. Ap. Ca. 127.
YOL. IX.] INDIAN APPEALS. 51
Appellant was the acknowledged cestui que trust of the registered J. 0.
talookdar, who bound himself expressly in writing that he woald 1882
respect her rights if she would permit him to be alone so re- thakubaih
gistered." Bamanund
In the case of the widow of Shunker Sahai y. Bajah Kashi Per- thaitorain
shad (1), it was held that, with respect to a one-third share of seven Baotunath
Tillages in the talook, the Rajah had, though no formal deed or
Ahant
writing was produced, by his admissions at the time of the sum- bahadue
mary settlement, constituted himself a trustee for the Plaintiff so ®^®"
as to be bound to account to her for a one-third share of the rents Thakubain
Baohunath
and profits. Koeb.
The doctrine was further illustrated by the case of Thakoor
Sardeo Bux v. Thakoor Jawahir Singh (2). The evidence being
unsatisfactory, the case was remitted for retrial on the following
issue, viz., " whether the Eespbndent has in any or what manner
agreed or become bound to hold the villages comprised in the
summary settlement and sunnud, or any or what part thereof, in
trust for the Appellant."
On the ease again coming before this Board, their Lordships
observe, — " The actual relation of the Appellant, the Respondent,
and Parhit Sing (who was no party to the appeal) remained that of a
joint and undivided Hindu family from the date of Lord Ganning^s
proclamation up to the quarrel and removal of the Bespondent to
Kaswara in 1865. The Commissioner also found, and correctly in
their Lordships' opinion, that the evidence proved that during that
period there bad been a joint interest in and common management
of the property. Such an interest could not have existed unless
the Defendant had consented that the villages should be held as
the joint property of the family. Their Lordships are of opinion
that the facts so found, coupled with the statement of the Defen-
dant in his application for a summary settlement, to the effect that
Hardeo Bux was his partner, and with his deposition on the 8th of
July, 1859, in which he stated that the custom prevailing in his
family was that if his cousins, meaning the Plaintiff and Parlut
Sing, who were his partners, should claim, they could get their
shares divided, afford sufficient grounds to justify their Lordships in
(1) Law Rep. 4 Ind. Ap. 198 ; Suppl. Vol. 220.
(2) Law Ren. 4 Ind. Ap. 178.
E 2
52 INDIAN APPEALS. [L. B.
J. 0. presnmiDg that, up to the time of the qnarrel in 1865, it was the
I8f2 intention of the Defendant that the villages included in the sura-
Thakubain ma^ settlement and snnnnd should be held by him in trust for the
^^KoEB^^ joint family and as a joint family estate, subject to the law of the
«. Mitak8hara"(l).
Raghcnath The principles of equity laid down in these cases (to which
^*^ others might be added) appear to their Lordships to apply to the
Anant facts of the present case.
Bahadur '^
Singh The Defendant Baghunath all along, certainly from April, 1856,
Thakurain to the time when she obtained the sunnud, held herself out as
^^S)EB^^^ claiming the estate under the terms of her husband's will.
At the time of the summary settlement with her, on the 2nd of
December, 1858, the agreement or compromise of the 14th of
November previous, which their Lordships interpret as a recog-
nition by all the three widows of that will, seems to have been in
force. Although the junior widows soon after repudiated that
compromise, and the Plaintiff claimed in a suit one third of the
property, the Defendant succeeded in defeating her by setting up
the will, and the suit ended in a second compromise of the 9th of
December, 1859, which, though not clearly expressed, their Lord-
ships regard as in effect recognising the position of the Defendant
which she claimed. This compromise, as far as appears, remained
in effect until January, 1861, when the Defendant executed docu-
ment E, which has been before referred to, and which, coupled
with the surrounding and preceding circumstances, their Lord-
ships regard as a declaration by Baghtmath that she held the estate
in trust — a trust which would bind her heirs — to carry into effect
the provisions of her husband's will. It is said that nothing was
done by Bamanund in consequence of BaghunatVs affirmance of
the will, and that she was in no way damnified thereby. But their
Lordships think it very difiRcult to maintain that position. It is
true that Bamanund*8 former claims are quite inconsistent with
her present claim. But then she has been defeated, and Baghunath
has succeeded. Without the will the two would have been ordi-
nary Hindu widows, and Baghimath would not have been in a
position to claim the sole benefit of the two settlements and of
the sunnud which were granted to her. Document D is dated
eighteen days before the summary settlements. Document E is
(1) Law Rep. 6 Ind. Ap. 163.
VOL. IX] INDUN APPEALS. 63
dated about ten weeks before the sannud. At two critical points j. q..
of time we find BaghuncUh the anthor of formal and important |gs2
documents, which, though they do not expressly mention the will, mg^*^^,
are not explicable except on the supposition that she was abiding Bamanund
by the will, which, on other occasions, she expressly set up and «.
successfully used as a defence to her possession. They are there- 'b^^^^^
fore of opinion that the Plaintiff is entitled to the relief she prays ^^™ -
for, viz., that it may be declared that she is entitled to succeed to Anant
the estate after the death of the first Defendant. It follows that Singh
the deed of gift to the second Defendant could confer no more thakuraiii
than the life interest of the first Defendant There is no prayer Ba^ui'ath
to set that deed aside, and if there had been it could not have been
effectual, inasmuch as the deed is not wholly void but operative to
convey a life estate.
Their Lordships will humbly advise Her Majesty that the judg->
ment appealed against be reversed, that a declaration to the effect
above mentioned be made, and the costsof both parties be paid out
of the estate.
ANANT BAHADUR SINGH v. THAKURAIN RAGHUNATH KUAR
AND OtHEBS.
This suit was brought by Bam 8arup Sing, who was a son of
Sheoambar Stuff, to whom the estate was given in remainder after
the life estates of the widows, by the will of Nihcd Singh, which
lias been before set out. Ram Sarup having died, leaving the
Plaintiff, his son, and Bam Sarup $ brother, Balbhadur, having
also died, without issue, the present Plaintiff succeeds to all the
rights of Sheoambar.
He brings his suit against the Defendants in the former suit,
with whom he has joined the two junior widows, for a declaratory
decree under the Specific Belief Act, and prays to have it declared
**that the deed of gift, dated the 27th day of February, 1877, is
invalid against the Plaintiff, who is a reversioner, because the
donor, the first Defendant, held only a life interest, and is a
trustee, anything contained in Act I. of 1869 notwithstanding."
In their Lordships' opinion the Plaintiff, having, in terms of the
English law, a vested remainder immediately after the life estates,
is entitled, under the Specific Relief Act, to maintain this suit.
54 INDIAN APPEALS. [L. R.
J. 0, The question is whether the first Defendant is to be declared,
1882 quoad the Plaintiff, to hold the estate in trust for carrying into
Thakubaih effect the provisions of her husband's wilU
Bamantjitd The evidence in this case differs in some respects from that in
9. the former case. The Exhibits C and D (of the dates 9th of
Raqhtinath April, 1856, and 14th of November, 1858, respectively) are not
^^ in evidence.
Anant The proceedings in the suit which has been referred to, of
SiNQH Bamanath against Baghwnathy are in evidence.
Thakubain Exhibit E (the letter of the 6th of January, 1861) is in
^XT™ evidence.
— In addition to these, two documents of some importance were
tendered, one being a letter of Defendant to the present Plaintiff,
of the 18th of January, 1870, marked " B6 ;" another letter of the
same date, marked ^^ Alif," written (as alleged) by her agent, and
referred to in the first letter. With respect to these documents,
the Deputy Commissioner thus expresses himself: —
"The letters Alif and Be remain for consideration as to the
alleged admissions of trust. Alif was put in, it was said, only
because it was referred to in Be, so it will suffice to consider the
value and effect of the latter. The Defendant, Baghwnath Kuar^
if she wrote this, informed the Plaintiff that she would do * nothing
contrary to the writiDg of the Thakur ;* that he had been falsely
informed that she meant to write a deed in favour of Bisheshar
Baxsh (Defendant 4). A witness Kunj Behari Lal^ deposes that
he wrote B^ for the Defendant, being at the time in her service ;
other witnesses depose that the signature to this letter is Defen-
dant's. The letter is denied. It is pointed out that Alif and Be
were not filed with the plaint, nor alluded to in any way. This
fact, a very important one, certainly renders the genuineness of
these papers doubtful ; whether genuine or not, B6 contains only
a promise, and does not create any fiduciary relations, if none
previously existed between the Plaintiff and Defendant. There is
nothing in the promise which gives it any legal force."
He dismissed the suit.
The Commissioner who affirmed this judgment makes no dis-
tinct allusion to these letters.
VOL IX.] INDIAN APPEALS. 55
The judgment of the Deputy Commissioner and the Commis^ j. o.
sioner being concurrent, no appeal lay to the Judicial Gommis- 1882
sioner. The present appeal is brought from the judgment of the thakubatn
Commissioner. Ramanuhd
KOEB
Although the Deputy Commissioner throws some doubt on the v.
genuineness of the two letters, — cliiefly, it would appear, on the Rachunatu
ground that they were not filed with the plaint (they seem to ^^*
have been filed before the settlement of the issues), — ^he does not Anant
1 1 •! !•«. A 1.- Bahadub
reject them, but considers their enect. As several witnesses Singh
testify to the signature of the Defendant to ** B^," and there is no thakubain
contradiction of their testimony, and as Janki Lai, the writer of ^^^o^^^™
" Alif," testifies to his own handwriting, their Lordships do not '
deem themselves justified, in the absence of a finding by the Court
below that the witnesses were not to be believed, in rejecting the
letters. " B6 " is in these terms : —
" May God assij^t us. You will know the particulars from this
letter and from that of Janki Bam.
. « From Thakurain Baghunath Kuar to Rammrup Singh.
" My dear Bamsarup Singh. After my good wishes to you, I
pray God to keep us in good health.
" I have received your letter, have become acquainted with its
contents, and have been satisfied. Bhagwat Singhy Lalla Goorpar-
shad, Pandit Goordyal Bam, and Chandka Singh paid a visit to
me in person, and related all the particulars to me verbally. The
report that you have received from the second wife to the eflfect
that I wish to make a bequest in favour of Bisheshar is altogether
false; she wishes to incite a quarrel between you and me. I do
not wish to contravene the instructions given by my husband,
either by thought, word, or deed. I am surprised that although
I have twice represented to the Government authorities my inten-
tion to comply with the instruction imparted by my husband in
favour of your father, you are not satisfied, and are easily led
away by others. I beg to assure you that nothing will be done
contrary to the will of my husband.
** You will learn the other particulars from Janki LaVs letter.
The rest is all right.
"Dated Asarh-Badi, 5th, 1277 E. 18th June, 1870."
56 INDIAN APPEALS. [L. B.
J. 0. " Alif *' is in these terms : —
^^^ *' From Ja/riki LaU to Thahur Bam 8arup Singh,
'^MA^sD " ®^^» — After compliments, I beg to state that may it please
KoEB God to keep you in good health, which is advantageous to me.
Thakttbaik Having taken leave of you, I arrived at Sihipur yesterday, and
^^Mu^" related all the particulars to Thalcurain Sahah-Lala Our Parshad,
rr^,^ Chandka Singh. Bhagwant Singh and Gurdial Bam came to-day
Bahadur to the Thahurain mth your letter to her, who is going to send
V. you a reply. Lala Our Parshad and Ourdial Bam will give you
Baqhunam ^^^ ^^^ particulars verbally. Thdkurain Sahdb takes thousands
^^« of oaths to the effect that nothing will ever be done contrary to
the written wishes of Thahur Nihal Singh, and that the second
wife of Thahur Nihal Singh is trying to instigate a false quarrel
between you and her, Thahu/rain Sahah, You may therefore rest
assured that no other plan is set on foot. The Thahwrain wishes
to make over one or two villages to Bisheahar from the estate
lying on the west, with your sanction, which, she says, will be
obtained, so that there may be no di'^pute or litigation hereafter.
The rest is all right
« Dated Asarh Badi 5th, 1277 Fusli."
The proceedings in the suit of Bamanath v. Baghunath, referred
to the tehsildar, wherein Baghunath insisted, and successfully, that
she held under her husband's will, could not have been unknown
to the rest of the family. The present Plaintiff*, the remainder-
man, may well have relied on the expressed intention oi Baghunath
to observe that will, and may have therefore thought it unneces-
sary to dispute her claims to a sunnud. Their Lordships have
already intimated their view of her letter of the 6th of January,
1861, viz., that it was a declaration of trust on behalf of those
interested under Nihal Singh's will, including the remainderman.
But it must be here noticed that the present Plaintiff^, on the 9th
of March, 1862, presented a petition wherein he ignored the will
of Nihal Singh, and impugned as invalid this very declaration of
trust, contending that he had a present right to the estate, or at
the least was next in reversion to Baghunath.
If his case had rested here, their Lordships would not have
been disposed to make in his favour a declaration of a trust which
VOL. IX.] INDIAN APPEALa 67
he had expressly repudiated. Bat the letters ^' Alif " and '^fi^'' J. 0.
give a dififerent aspect to the case. The order made after his 1882
petition is that he be directed to apply to BaghuncUh. What thIrurain
correspondence upon this took place between them can only be ^^^^^
conjectured from these two letters. It would seem from them «•
that the Plaintiff no longer disputed the life interest of Baghunath Baghunath
or the will of Nihal 8mgh, but had received some information .^
that she intended to make an absolute gift of the estate, where- ^^^^^^
upon Baghtmath refers to her representation to the Government of Singh
the 6th of January, 1861, and to some subsequent representation thakubain
to the same effect, for the purpose of reassuring him of her inten- ^^^Lobb^™
tion to comply with her husband's will, and quieting his suspicions
that she intended to avail herself of the full powers contained by
her Bunnud. According, th^n, to the evidence in this suit,
BaghuncUh has herself given a significance to her declaration of the
6th of January, 1861, which still more clearly fastens upon her
the obligation to abide by it She treats it as a wrong done to
her that she should be suspected of any intention of departing
from her husband's directions. And this places it beyond doubt
that the declaration in question, which, as before observed, does
not expressly mention NihaTs will, is really founded upon it, and
treats it as a direction obligatory in conscience if not in law.
Their Lordships, however, think that two concurrent declaratory
suits were unnecessary at the present time, and that it would not
have been unreasonable if the First Court had, as a matter of dis^
cretion, declined, under the circumstances, to grant declaratory
relief to the more remote remaindermen. That, however, was not
done. Bam 8arap\ suit has been decided on the merits, and
decided against him, as their Lordships think, wrongly. They
will, therefore, humbly advise Her Majesty that the Appellant is
entitled to the decree he asks, but without costs, nor do they give
any costs of this appeal.
Solicitors for Appellants : WaiJcim & LaMey.
Solicitor for Kespondents : T. L. WUsm.
58 INDIAN APPEALS. [L. R.
J. c* SIRDAE SUJAN SINGH Defendant ;
1881 XND
Nov.n, GANJA BAM and Another Plaintiffs.
ON APPEAL FROM THE CHIEF COURT OF THE PUNJAB.
Contract of Suretyship — Bights of Surety — Lex loci contractus.
In a suit to recover moneys which the Plaintiff had been compelled to
pay upon the Defendants* breach of contract with the independent State of
Bhawalpur, the Defendants pleaded that there had been no breach within
the meaning of the contract of suretyship. It appeared that the whole
arrangement had been made within the State of Bhawalpury the authorities
of which had put an end to the contract and enforced payment by the
Plaintiff:—
Held, tliat the parties must be considered to have contracted according to
the liabilities that would be incurred at Bhawalpur, and not with a view to
the law of British India, and that the Plaintiff was entitled to recover.
Appeal from a decree of the Chief Court (July 26, 1875, and
in review Jan. 29, 1877), whereby the Defendants' appeal from
the judgment of the Commissioner of Mooltan (April 15, 1875)
was dismissed, and the Plaintiff's suit decreed in his favour.
The Plaintiff sued the Defendants to recover from them a sum
of E8.9000 which had been advanced by the State of Bhawalpur
to them upon a timber contract, and which he, as surety for the
Defendants, had been compelled to repay to the State upon their
breach of contract. The Defendants denied that they had autho-
rized him to be their surety, or that they had committed any
breach of contract which justified the State in rescinding the con-
tract, and exacting repayment. The Assist£knt Commissioner
found that the Plaintiff had become surety for the Defendantf>,
but not at the Defendants' request, nor upon any specific request
of the Defendants' agent. He also found that the Bhawalpv/r
State was not justified in rescinding the contract, and therefore
dismissed the suit, but without costs. The Commissioner found
* Present : — Sie Barnes Pbacock, Sib Motstague E. Smwh, Sir Robert P.
Collier, Sir Richard Couch, and Sir Arthur Hobhouse.
VOL. IX.] INDIAN APPEALS. 59
that the Plaintiff became surety with the consent of the Defend- J. a
dants' agent, and that the Defendants indorsed and accepted the issi
action of the agent, and received the money with notice of the sibdar
terms upon which it was obtained. He remanded the case, how- Sujan Singh
ever, for a decision upon the merits, as to whetlier the contract Ga nja R am
had been broken at all. The Chief Court accepted the finding of
the Lower Courts, that the Plaintiff was a surety for the Defen-
dants. Mr. Justice Boulnois was of opinion that upon the facts
of the case there was suflScient evidence that the Defendants had
broken their contract. Mr. Justice Lindsay thought that he was
precluded from inquiring into this question as a matter of fact,
being of opinion that the act of the State of Bhawalpv/r in re-
scinding the contract was one which the Civil Court was bound in
law to accept without further question; Bharvalpur being an
independent State. The result was that both Judges, though
on different grounds, decreed for the Plaintiff for the whole of
his claim except a sum of Ks.350. A review was admitted, and
Judge Boulnois on further consideration altered his former opinion,
and agreed with the original Court that there had been no breach
justifying the rescission of the contract. He therefore considered
that the first decree should be restored, and' the suit dismissed.
Mr. Justice Lindsay adhered to his former opinion, upon which
the a])plication for a review was referred to a full bench. Upon
the final argument, Mr. Justice Boulnois and Mr. Justice Lindsay
adhered to their respective opinions, and Mr Justice Campbell
sided with Mr, Justice Lindsay. The result was that the review
petition was dismissed, and the decree of the Chief Court stood
affirmed. Against this decree and order this appeal was pre-
ferred.
MaynOf for the Appellant, contended that the Plaintiff did not
become surety fur the Defendants in such manner as to entitle
him to recover in this suit, and otherwise that there had been no
breach justifying a rescission of the contract and a payment by
the Plaintiff. The Chief Court was wrong in law in holding that
the act of the Bhawalpur State was conclusive as to such breach
On the evidence there had not been such breach as to justify the
State of Bhawalpur in putting an end to the contract.
60 INDIAN APPEALS. [L. B.
J. 0. The Respondents did not appear.
1881
SiBDAB The jadgment of their Lordships was delivered by
BujAN Singh
^ «• Sib Eiohabd Couch: —
Ganja Bam.
The suit in this appeal was brought by Eardyal Singh, who has
since died and is now represented by the Respondents, against
Makkun Singh and the Appellant, Sujan Singh, to recover a sum
of money which the Plaintiff said he had paid as surety, and was
entitled to recover from them.
Mukkun Singh is since dead, and his representative has not
joined in the appeal. SuJan Singh is the son and representative
of Nand Singh, who died before the suit.
The circumstances under which the Plaintiff became surety
are, that on the 12th of November, 1869, Nand Singh and Mak-
kun Singh, through their agent Qormukh Singh, entered into a
contract with the political agent of the State of Bhawalpur to
supply timber, the contract being that the timber should be
supplied clear and without knots; that on its arrival at Mool-
tan it was to be examined there by a mistree appointed by
the political agent, and after inspection was to be forwarded to
Bhawalpur; that though the timber should be forwarded, yet,
notwithstanding the approval of the mistree, the contractors
would take back any timber which was disapproved by the State
of Bhawalpur. Another clause, as to the place of depositing it, is
not material ; and the fifth was that the political agent would
purchase the timber brought by the contractors to Bhawalpur,
and rates of payment for it were specified. Nothing was said as
to the quantity of timber which was to be supplied, nor as to the
time during which the contract was to remain in force. It was
only a contract to supply timber, and allowed the political agent,
who represented the State of Bhawalpur, to take it or not accord-
ing to his approval of it It would appear that shortly after the
making of the contract the contractors were desirous of obtaining
an advance of money, and they applied to the political agent for
it. The Plaintiff has given his account of the transaction ; but as
the political agent. Colonel Minchin, has also stated what took
place, it will probably be better to refer to what he said. He was
VOL. IX] INDIAN APPEALS. 61
examined as a witness, and said, in answer to the qnestion, '' On j. o.
whose security did Nand Singh and Makhan Singh obtain an 1882
advance of Rs.10,000 from the Bhawalpur State ?"— " On the g^^
security of the Plaintiff, who was at that time confidential agent S^Jan^Singh
attached to my Court; the Defendants were introduced to me by Ganja Ram.
the Plaintiff, who stated that they were the agents for the sale of
timber belonging to the Maharajah of Cashmere and Cashmere
subjects ;" — ** I at once accepted him as security, on the under-
standing that if the Defendants failed to carry out their contract,
the Plaintiff should make good the balance of advance." In
answer to a question in cross-examination he said, '^ The Plaintiff
was in no way responsible for the fulfilment of the contract, but
only for the repayment of the advance in case the contract should
fail.** The Plaintiff's statement was that he had a letter from the
Defendants^ asking him to obtain an advance on account of the
contract; that the agent Ov/rmukh Singh asked for Es.25,000,
and he suggested that Rs.l 0,000 might be advanced; and that he
went to Colonel Minchin on the day he received the letter.
Colonel Minchin refused to advance the money unless on security,
and the Plaintiff said he would be surety, and requested him to
advance Bs.10,000 for the present to enable the contractors to
open their work. The money was advanced. The period for the
supply of timber appears to have been during the cold season,
when only it could be floated down the river, as it had to be for a
considerable distance. The contractors supplied some timber.
Part of it was received and part rejected; and complaints were
made, no doubt, as to the quality of it. In September, 1870,
Colonel Minchin called upon the Plaintiff to pay the balance
which then remained of the advance of B8.10,000, after giving
credit for the timber which had been received by the State, and
which balance amounted, as Colonel Minchin says, to E8.8860. 7a.
He gave directions that this amount should be recovered from the
Plaintiff; and it was recovered from him in the first instance, by
his giving up jewels and different securities, which were valued at
the sum to be recovered, which was ultimately realised from them.
The Plaintiff was, in fact, obliged to pay the amount, as being the
balance remaining of the advance ; and this is what he now seeks
to recover from the Defendants. The question is whether he is
62 INDIAN APPEALS. [L. B.
J.O. entitled to do so. The Lower Courts have decided that he is
1881 entitled. When the case first came before the Chief Court, one
Si^R of the learned Judges was of opinioQ that, applying, according to
SujAN Singh j^jg yjew, the law of British India to the case, there had been
Ganja Kam. a breach of contract which justified the payment of the money by
the Plaintiff ; and therefore he, as surety, was entitled to recover
it. The other learned Judge was of opinion that the act of
Colonel Minehin as an act of State could not be inquired into ;
and that on this ground, the Plaintiff having been thus obliged to
pay the money, he was so entitled. Consequently a decree was
made in the Plaintiff's favour. There was then an application for
a review, upon which the learned Judge, who had in the first
instance thought the contract had been broken, after a discussion
of the evidence, came to the contrary conclusion, and thought
that the contract had not been broken, and therefore that the
Plaintiff was not entitled to recover. The other learned Judge
adhered to his opinion that the act of Colonel Minehin could not
be disputed, and on its being referred to a third Judge he took
the same view. The application for a review was therefore dis-
missed, and the decree was confirmed.
Their Lordships have now to consider whether this decree in
favour of the Plaintiff ought to stand.
The contract under which the Plaintiff became the surety, and
which is the contract that must really be considered in this case,
was made in Bhawalpur, and the parties must be considered to
have made it according to the liabilities that would be incurred
there. Their Lordships do not concur in the view that when the
surety comes to enforce his rights against the principals, the law
of British India is to be looked at. They must see what was
in the contemplation of the parties when they entered into the
contract at Bhawalpur^ and the evidence of Colonel Minehin puts
it as high as it can be put in the Defendants' favour. He says
that the Plaintiff was to be responsible for the repayment of the
advance in case the contract should fail. The question is, whether
the contract to supply timber has not failed within the meaning
of the contract of suretyship. It is clear that when Colonel
Minehin, in September, 1870, directed that the balance should be
recovered from the Plaintiff, the contract had failed. It was put
VOL. IX.] INDIAN APPEALS. 63
an end to by a power which neither the Defendants nor the Plain- J. 0.
tiffy the surety, could dispute. Colonel Minchin had power to put 1881
an end to the contract; and if we look not merely to the power Sirdab
which he might have as political agent, but to the terms of the Sujan Singh
contract for the supply of timber, it would appear that he was Ganja Kam.
entitled to do so. The* contract was one which being indefinite iu
point of time, it would seem might be put an end to by either
party. It was really only a contract to pay for timber supplied
and accepted according to. certain rates. Therefore, in this re-
spect, if it were necessary to go into that question, he had power
to put an end to the contract. Moreover, if their Lordships had
thought it necessary to go into the question whether Colonel
Minchin was justified in what he did, there is evidence that the
contract had failed through the acts of the contractors; that
they had, according to Colonel Minchin^s evidence, after offering
a quantity of timber which had been rejected, as there was power
to do, abandoned the contract, and they do not seem to have
taken any steps insisting on the timber being received or to have
sent other timber in its place. The evidence is, and there is no
reason to doubt that it is true, that they had in fact done in the
way of abandoning the contract what would have justified the
political agent in treating it as at an end, and saying that the
balance ought to be repaid to the Government. The agent had,
under those circumstances, declared the contract at an end. In
any view of the case, therelbre, the balance of the advances ought
to be repaid by the surety. And the surety having been com-
pelled to pay the money is entitled to recover it from the
Defendants.
Their Lordships thiuk that the decree which was made in the
first instance by the Chief Court, and confirmed upon the appli-
cation for a review, was right ; and they will humbly advise Her
Majesty to dismiss the appeal.
Solicitor for Appellant : T. L. Wilson.
64 INDIAN APPEALS. [L. B-
J-C.* HIRALALL . . . .' Plaintiff;
»— v^ AND
F^. GANESH PERSHAD and otheks , . • . Defendants.
ON APPEAL PROM THE HIGH COURT AT ALLAHABAD.
Estoppel — Secondary Evidence.
In a suit to establish that an ikrarnamah between the original vendor and
vendee of a taluqa was binding on the Defendant, and that he was bound
thereunder to indemnify the Plaintiff for the payment of the Government
revenue of his (the Plaintiff's) portion of the taluqa; it appeared that
the Plaintiff and Defendant respectively derived title from the original
vendor and vendee, that the ikrarnamah was not in evidence, but that
in a suit between the same parties in estate, relating in a great degree to
the same subject matter, judgment had been given in favour of the Plain-
tiff's predecessor : —
Beld, that the Plaintiff had failed to prove his case. The judgment in
the former case was ambigaous as to the extent and duration of the liability
assumed by the vendee, and did not decide that the contract of indemnity
should run with the land.
A Court which rejects an original deed as inadmissible, ought not to
accept secondary evidence of its contents, and then construe a document
which it declines to look at.
Appeal from a decree of the High Court (July 10, 1879),
affirming a decree of the Subordinate Judge of Allahabad
(Feb. 26, 1879), which dismissed the Appellant's suit with costs.
The question in the appeal was whether the Appellant, who
was the proprietor in possession of the lands in suit (being 422
bigahs), situate within the ambit of taluqa Mawaiya, and who
had been by orders of the Commissioner and the Board of Revenue
held responsible for payment of the rateable revenue payable
thereon to the Government, was under the circamstances of the
case entitled to have the amount of such revenue defrayed by the
Defendants, the zemindars of the taluqa.
The taluqa was in 1830 sold by Ohulam Singh and others, the
* Present:— ^iB, Barnes Peacock, Sib Robert P. Collier, Sir Richard
Couch, and Sir Arthur Hobhouse,
VOL. IX.] INDIAN APPEALS. 65
then zemindars thereof, to certain persons benamee for Ohulam J. 0«
Ahnmd, the real purchaser and predecessor in title of the Be* 1882
spondents. The sale deed had never been produced, but the hiraLali.
Appellant, who derived title from the vendors, alleged that it con- q^'^^
tained a condition to this e£fect, ^' That the vendor should remain Psbshad-.
in perpetuity in possession of 1,845 bigahs of land as malikana,
without payment of rent and the rateable Government revenue,
and the vendee and his representative should pay the Government
revenue of the said land, together with that of the whole share
sold ; the vendors should have nothing to pay on account of the
Government revenue thereof/'
The provisions of this deed, whatever they were, immediately
gave rise to dispute, and on the 26th of April, 1831, an ikrar-
namah relating to these 1,845 bigahs was executed between the
parties to the sale deed. Neither in this suit, nor in a former
suit in which a similar question was raised, had the ikrarnamah
been put in evidence. All that was known of its contents was
derived from the judgment of the Sudder Court in that former
suit, dated the 14th of March, 1853, which, after rejecting the
ikrarnamah as inadmissible because it had not been tendered in
the Court below, based its decree in favour of the Appellant's
predecessor in title upon secondary evidence of its contents. At
the recent settlement the Appellant, on the petition of the Be*
spondents, had been ordered to pay the Government revenue in
respect of his holding.
The facts of the case appear in the judgment of their Lord-
ships.
The prayer of the Plaintiff was :—
1st. That, in accordance with the original contract entered
into between the contracting parties, the Plaintiff be exempted
from paying the rateable revenue as against the Defendant with-
out any injury to the Government.
2nd. That the Defendants be ordered to pay themselves as
before the said revenue for the said nank^r land, in accordance
with the contract entered into by the original purchaser.
3rd. That the Defendants be further ordered never to claim
and demand from the Plaintiff the revenue they may have to pay
lor the said land.
Vol. IX. n«
66 INDIAN APPEALS. [L.B.
.J. 0. The written statement of the Respondents so far as it relates to
18S2 the original contract was as follows :
Hnu Lali. 6th. The Defendants, or the person whose representatives they
Oan'esh (Defendants) are, never remitted in perpetuity (nadan«^bad-na8lan)
P1B8BAD. the rent of any land to any predecessor of the Plaintiff, and even
if the rent has been remitted the remission can legally be in
force as against the grantor personally; it cannot be enforced
against his heirs and representatives.
7th. Even the decree of the Sndder Coart relied upon by the
Plaintiff has legally no connection with the order of the Settle^
ment Court determining the rateable revenue, nor can it i^eet,
under any law, the settlement order in dispute in this case, nor
it is binding on the Settlement OiQcer.
Qrahami Q.C., and Baikes, for the Appellant, contended that
he was, under the circumstances of the case, entitled to be in-
demnified by the Bespondents, and that. the land in suit, into
whosoever hand it might pass, was entitled to be indemnified by
thQ zemindar of the taluqa for the time being, in respect of the
Government revenue which was assessed upon the land in suit,
and which its holder was legally bound to pay. Beference was
made to Paekhouse v. MidcUeion (1).
Leith, Q.G.I and CoweU, for the Bespondents, were not called
upon.
The judgment of their Lordships was delivered by
Sib Bobbrt P. Collier : —
This appeal comes before their Lordships under soniewhat
peculiar circumstances. The case of the Plaintiff, who is the
Appellant, is in substance this: that in October, 1830, three
persons, named Sheo Qhdam Singh^ Bmi Singh^ and Mardan
Singhy sold a taluqa to a person of the name of Qhulam Mvr-
hammadf reserving to themselves a certain portion of that
taluqa, which is differently described as 1845 bigahs, and 1400
bigahs, — in fact, various figures are given describing it, — subject
(1) 1 Ch. 0. 173, cited in Sugden's V. & P. (llth ed.) p. 728.
VOL. IX.] INDIAN APPEALS. 6T
to thi9 oonditioiii that they were to pay no rent for this portion «r. Q,
leservedf nor the (Sovemment revenne, bat that the Groyemment 1882
reyenue was to be paid by the yendee. They say that by the ^qia. t.a^ ^
conditions of the deed of sale, subsequently confirmed by an qj^^
ikramamah of April, 1831, this was expressly agreed and stipn- Pushao.
lated on the part of the yendee. The Plaintiff is a purchaser of a "' '
part of the reseryed portion, denying title from the original yendorsi.
The Defendant is a person to whom one DuOutm Begum (who was
.the widow of a person named Qhuiam Ahmad^ for whom it is
alleged that the original yendee purchased benamee), sold it — it
does not appear when.
The Plaintiff seeks to establish that the i^eement between
the original yendor and yendee is binding upon the present De-
fendants, and that they are bound to indeomify him, the Plaintiff
for the payment of the Goyemment reyenue in respect of the
reseryed property, or such portion of the reseryed property as he
The Plaintiff does not put in the original deed, — that is said to
haye been in the possession of the original Defendants, — and he
does not giye, nor did he eyer giye, any satisfactory eyidence of
its contents. He does not put in the ikramamah, on which he
principally relies as setting forth the agreement which has been
referred to, and he giyes no reason whateyer for not producing it.
He does not state whether or not it is in his possession ; whether
he has made any search for it ; whether it is lost ; nor does he
attempt to giye any secondary eyidence of it, but he relies
entirely upon a judgment which was obtained in the year 1853
by the original yendors together with another person against
Diilham Begum, who has been before spoken of; and he contends
that this judgment, without any other eyidence whateyer, proyes
his case.
This judgment turns chiefly upon the construction of the
ikramamah. Their Lordships cannot help obserying, in passing,
on the extraordinary course which appears to haye been pursued
by the Court of the Sudder Dewani Adawlat in that suit. In the
Court of first instance, the Plaintiff, although he admitted that he
had the ikramamah in his possession, did not produce it, alleging
that it had been in the possession of the Defendants, and that
68 INDIAN APPEALS. [L. R.
J. 0. they might have tampered with it, or had tampered with it But
1882 as he did not produce it, the Judge (it appears to their Lordships
HibaLam. quite properly) held that secondary evidence of it coald not
Ganbsh ^® admitted, and dismissed the suit* When the case came on
PBBflHAD. appeal to the Sadder Court at Agra^ it seems that the Plaintiff
did then produce this document, and offer it for the inspection of
the Court. The Court refused to look at it, but admitted
secondary evidence of its contents. It appears to their Lordships
that the Sudder Court was wrong in that course of proceeding.
If the Plaintiff had the original and did not produce it in the
Court below, bis case was not proved, because it rested almost
entirely on the ikrarnamah, there being no evidence of the con-
tents of the deed of sale ; but to accept secondary evidence of the
document which was in the Plaintiff's custody, without looking at
the original, seems to their Lordships to be an extraordinary
course. But, be this as it may, the Plaintiff is right in contending
that this was a suit between the same parties in estate, relating
in a great degree to the same subject matter, and in relying upon
it as far as he can as an estoppel. It remains to ascertain what
the real effect of the judgment in that suit was. The claim was
*' for a declaration of right and proprietary possession, exempt
from the payment of the rateable rent (by prohibiting the Defen-
dant from demanding the rateable revenue)." And the point
decided in the Sudder Court is thus stated : — ** The Court, for the
above reasons, reverse the decision of the Principal Sudder Ameen,
and decree in favour of the Appellants for possession of the land^
exempt from the payment of revenue and wasilat to the amount
claimed by them."
It appears to their Lordships that this judgment is ambiguous
in one or two respects. It does not appear definitely on the face
of it whether it was adjudged that the claim to be indemnified for
the payment of Government revenue related to the then impend-
ing revenue settlement which the parties may perhaps be assumed
to have had in contemplation when they entered into the agree-
ment, or whether it related to the next settlement or to any sub-
sequent settlement. The judgment might be consistent with
either view. Further, it does not appear whether the effect of
the judgment is simply to render the Defendant, Mus9%m(xt^
VOL. IX.] INDIAN APPEALS. 69
Dulham Beguntj liable to indemnify the Plaintiffs in respect of J. 0.
the reserved rent, or whether the contract of indemnity is to be 1882
taken to run with the land, and to bind all persons who may be hirTlall
hereafter in possession of it under any title whatever. Mu8S%(,mat ^ '^^^
Dvlham Begum^ it may be observed, as far as their Lordships are Pjcrshad.
able to understand the evidence on this part of the case, which is
as obscure as the rest of it. would seem to be, as has been said,
the widow of Ohulam Ahmad, the real purchaser, and thus to have
been a representative of the purchaser bound by his undertakings,
but it would by no means follow that the land is to be bound in
whosoever hands it may hereafter come by purchase or otherwise.
The judgment, thus ambiguous, is applied almost wholly to the
construction of the ikramamah, which the Court did not look at.
If this ikramamah had been produced in the present suit, their
Lordships might, by applying the judgment to the terms of it,
have been able to determine the effect of that judgment ; but, in
^he absence of the ikramaniah, which the Plaintiff has not pro-
duced, and the non-production of which he has not accounted for,
their Lordships are unable to construe the judgment in the sense
in which the Plaintiff seeks to have it construed. The more
obvious interpretation of it seems to be the more limited one.
Under these circumstances, their Lordships are of opinion that
the Plaintiff has failed to prove his case ; and they will therefore
humbly advise Her Majesty that the judgment appealed against
be affirmed, and that the appeal be dismissed with costs.
Solicitors for Appellant : Watkins dt Lattey.
Solicitors for Respondents : W.dk A. Banken Ford.
Vol. IX.
70 INDIAN APPEALS. [L. R.
j.o. THE MUSSOORIE BANK, LIMITED. . . Defendant;
1882 AND
ifardUL7,2i. ALBERT CHARLES RATNOR . • . . Plaintifp.
ON APPEAL PROM THE HIGH COURT AT ALLAHABAD.
WiU — Construction — Precatory Trusts — Practice-^PetUion for Special Leave
— Misstatement — Costs,
A testator gave to his widow the whole of his real and personal property
" feeling confident that she will act justly to our children in diyiding the
same when no longer required hy her :" —
Held, that the widow took an absolute interest, and that the doctrine of
precatory trusts did not apply.
The petition of special leave to appeal in this case stated correctly two
valid grounds for granting the same ; but contained misstatements of fact
which affected the third ground relied upon by the petitioner : —
Beldy that any such petition is liable at any time to be rescinded with
costs if it contains any misstatement or any concealment of fSetots which
ought to be disclosed. It appearing however that there was in this case no
intention to mislead, the appeal was heard and allowed, but without costs.
Bam Sabuk Bose v. Monomohini Dossee (1) approved.
Appeal from a decree of the High Court (Aug. 22, 1878)
reversing with costs a decree of the Subordinate Judge of Dehra
Doon (May 10, 1878).
Special leave to appeal had been granted to the appellants by
order of Her Majesty in Council dated the 14th of August, 1879.
Besides a question as to the effect of particular words in a will,
whether or not (hey amounted to the creation of a trust, there
was a further question raised as to the effect of certain misstate-
ments which had been made in the petition for special leave to
appeal.
Two suits had been instituted by the Appellant bank against
Mrs. Baynora executors prior to the suit in which this appeal
arose. One was numbered 41 of 1876, and in it a money decree
* Present:— ^m Babnbs Peacock, Sib Bichabd Couch, and Sib Abthub
HOBHOUSE.
(1) Law Rep. 2 Ind. Ap. 81.
VOL. IXJ
INDIAN APPEALS.
71
was obtained on the 5th of December, 1876, and certain Ddhi
Bomk shares were attached. The other was a mortgage suit
numbered 115 of 1876, and in it a money decree for B8.32,121
was obtained on the 12th of December, 1876, the High Court in
appeal, by its decree dated the 2nd of January, 1878, holding
that the bank might enforce its mortgage on certain properties to
the extent of Mrs. Baynor's interest thereon. The present suit,
numbered 24 of 1877, was brought by the Respondent on the
16th of March, 1877, to set aside the attachment of the shares so
far as it affected him. The suit was valued at B8.6000, and was
dismissed by the Subordinate Judge on the 10th of May, 1878, but
decreed in favour of the Eespondent on the 22nd of August,
1878, after the time for appealing from the decree of January 2,
1878, in the mortgage suit had expired.
The High Court refused to admit an appeal from the decree of
the 22nd of August, 1878, to Her Majesty in Council on the
ground that the property at stake in this suit was under the appeal-
able amount.
The petition for special leave to appeal contained the following
statements. After referring to the institution of the mortgage
suit (115 of 1876), but without mentioning the date thereof or of
the judgment of the High Court therein it proceeded : — " The
High Court of Allahabad, without deciding this question, ordered
that the interest of Mrs. Baynor in the properties should be sold
in satisfaction of the claim of the bank under the decree in the
above suit. The bank attached the shares of the Delhi Bank held
by Mrs. Baynor' s executor and executrix, and the Respondent
herein objected to such attachment on the same ground as above
stated, viz., that Mrs. Baynor possessed only a life interest in the
said shares; but his objection was dismissed. He thereupon
brought the suit which is the subject of the present application.
-The suit was brought in the Court of Small Causes at Dehra,
exercising its extraordinary jurisdiction, against the Mussoorie
Bcmh, Limited, and prayed for possession of twenty-four shares of
the Ddhi Bank, attached under the above decree in the suit
of Mmsoorie Bank v. Executors of Mrs. Baynor, on the ground
that under the will of her deceased husband Mrs. Baynor held
them only for her own life, and in trust after her death for her
G 2
J. 0.
1882
mussoobib
Bank
V,
Batnob.
72
INDIAN APPEALS.
[L.B.
J.O
1882
mussoobis
Bank
Batnob»
cbildren. The suit was valued at Bs.6000y and was numbered
24 of 1877.''
And further, the grounds suggested in the praying part of the
petition, why special leave should be granted, were the following : —
"Pray that Your Majesty in Council will grant them special
leave to appeal against the same on the ground that the decision,
though actually only for a sum of Es.6000, virtually aflTects the
petitioners' right to have a mortgage security for the three
promissory notes aforesaid, in respect of which a decree for
Es.32,121. 2a. 4p. was awarded to the petitioners; also that the
point of law decided by the High Court of AUdhahad in this suit
was one of great and general importance, and will govern other
claims arising in reference to the estate of Mrs. Baynor^ and that
a decision of Your Majesty in Council in this suit will probably
prevent any appeal against the decree in the suit brought by the
petitioners as aforesaid, or against the proceedings in execution
thereof."
Boyne, for the Eespondent, referred to Bam Sahuh Bose v.
Monomohini Doaaee (1), and contended that the order granting
special leave to appeal should be rescinded. The suit under
appeal was brought to set aside an order made in the suit (41 of
1876), and the statement in the petition as to the relation between
suit (115 of 1876) and the decision therein and the present suit
is therefore incorrect and misleading. Owing to accident or
negligence there was a misrepresentation of fact as to such rela-
tion, and a concealment of fact as to the date of the High Court's
decree, and it was contended that had the true facts appeared
on the petition the order for special leave would not have been
granted.
Orahamy Q.C., for the Appellant, contended that there was
ample ground for granting the order for special leave, apart from
the misstatements, which were unintentional. Affidavits had been
filed to explain the manner in which they arose. They were
immaterial in this sense, that if the facts had been accurately
stated, it was still on the merits a case in which leave would have
(1) Law Rep. 2 Ind. App. 81.
VOL. IX.]
INDIAN APPEALS.
73
been granted. Beference was made to Mohun Lai Soohd v«
Befim Doss and Others (1)«
Doyne replied.
Their Lordships decided to hear the appeal.
Graham, Q,C. (Woodroffe with him), for the Appellant, con-
tended that Mrs. Baynor took an absolute interest under her
husband's will unaffected by any trust whatever in favour of
the children. The Chief Justice in the Court below relied upon
(hmiok Y. Tucker (2), but that case is distinguishable from this,
and moreover in later cases a stricter view is taken of what are
called precatory trusts : PamaU v. Pamall (3). Reference was
also made to Lanibe v. Eames (4), where the whole subject is
reviewed by Vice-Chancellor Malins, and upheld in appeal (5).
See also Sale v. Moore (6) , Stead v. Mellor (7) ; In re Hutchinson
and Tenant (8).
Doyne, for the Respondent, submitted that at all events the
later eases cited did not get rid of the doctrine of precatory trusts,
and that the true effect of the clause in dispute in this case was
that the testator gave his widow the right of enjoyment for life
with a power of appointment afterwards to be exercised in the
mode prescribed, that is by fair division amongst the children.
He says ** all my estate.*' [Sib Barnes Peacock : — She may usft
it as required, may she not ? Sir Arthur Hobhouse : — ^If he
had given over what was not required, such gift would have been
void for uncertainty.] No doubt there must be definiteness in the
object and subject, and clearness as to the way in which it is to
go. Here the object is " our children '* — the way in which it is to
go is by the exercise of the wife's power. The subject, moreover,
is clearly defined in the clause. In this way In re Hutchinson
and Tenant (8) is distinguishable. He referred to Knight v.
J. c.
1882
JJHUSSOOBIB
BAT4K
JKatnob.
(1) 8 Moore, Ind. App. Ca. 195.
(2) Law Rep. 17 Eq. 320.
(3) 9 Ch. D. 96.
(4) Law Rep. 10 Eq. 267, 270.
(5) Law Rep. 6 Ch. 597.
(6) 1 Sim. 534.
(7) 5 Ch. D. 225.
(8) 8 Ch. D. 54a
74
INDIAN APPEALS,
[L.R.
J. 0. Knight (1) ; Le Marehanl v. Le Marehani (2) ; Lambe v. Eames
1882 referred to in Cumick v. Tucker (3). There is no ground for say-
MussooBiE ing that this latter case has been overruled.
Bank
Bay NOR.
The Appellant was not called on to reply.
The judgment of their Lordships was delivered by
Sir Arthur Hobhousk : —
In this case their Lordships have felt almost more difficulty ia
deciding whether or not to hear the appeal than they have ia
disposing of it when, heard, and in order to shew the nature of that
difficulty it is necessary to state the precise course which this
titigation has taken.
In the month of December, 1839, Captain William Baynor
died, having left a will which he expressed in the following
terms : — " I give to my dearly beloved wife, Mary An/ne Baynor,
the whole of my property, both real and personal, including my
Government promissory notes, Delhi Bank shares, my house at
Ferozepore, No. 50, together with all my plate and plated ware,
and whatever money, furniture, carriages, horses, &c., may be in
my possession at the time of my decease, together with all moneys
due or which may afterwards become due, feeling confident that
she will act justly to our children in dividing the same when no
longer required by her." And he appointed his son William
Joseph Baynor, and his wife Mary Anne Baynor, to be his execu-
tors. Mrs. Baynor alone proved the will.
During her lifetime no question arose as to the true nature of
Captain Baynor' s will. It appears that she possessed herself of
his property, and she assumed to deal with it as though it were
her own. On the 5th of September, 1868, Mrs. Baynor made her
will by which she gave to her son, Albert Charles Baynor, who is
the respondent in this appeal, ^ 24 of my shares in the Delhi and
London Bank," and she also gave him a house and some land.
Other property, consisting mainly of houses and land and of
Government rupee paper, she gave partly to her daughter
(1) 3 Beav. 172 ; 9 L. J. (N.S.)
(Ch.) 355.
(2) Law Eep. 18 Eq. 414.
(3) Law Rep. 17 Eq. 320.
VOL. IX.]
INDIAN APPEALS.
75
Adelaide Loui$a Swetenham, partly to her son William Joseph
BaynoTf and partly to her stepdaughter Elizabeth Ooolding. To
the latter was given the house No. 50 at Ferozqxyre, which the
testatrix describes as "* my house and estate." Mrs. Baynor died
some time in 1875, and her will was proved, it does not appear by
whom.
In the year 1876 the Mussoorie BanJcy who are the Appellants,
instituted two suits against lULrs. Baynor 8 executors for the pur-
pose of. recovering the sum of Bs.25,000 advanced by the bank to
Mrs. Baynor upon the security of thirty Delhi Bank shares and
of certain houses. One of these suits. No. 41 of 1876, was insti-
tuted in the Small Cause Oourt at Dehra Boon, and on the 5th of
December, 1876, the bank obtained a decree under which the
thirty shares were attached. The other suit, No. 115 of 1876,
instituted before the Subordinate Judge of Dehra Doon, was to
enforce the bank's mortgage upon the houses. On the 12th of
December, 1876, the bank obtained a money decree for the sum
of B8.32,121. 2a. 4p., but the Subordinate Judge refused to give
them any specific relief on the basis of the mortgage. His prin-
cipal reason appears to have been that the nature and extent of
Mrs. Baynor' 8 interest in the mortgaged properties was uncertain.
Against this decision the bank appealed to the High Court,
who gave judgment on the 2nd of January, 1878. They held
that Mrs. Baynor certainly had some interest in the properties
she mortgaged to the bank ; that she might have had an absolute
interest in them, especially as she had acquired them after Cap-
tain Baynor' 8 AeQ,\h ; and that the bank was entitled to enforce its
security against whatever interests might ultimately prove to be
hers. They varied the decree accordingly. As regards the in-
terest which Mrs. Baynor had in the properties the High Court
pronounced no opinion, holding, quite rightly as their Lordships
think, that the question did not arise in a suit in which Captain
Baynor'e estate was properly represented.
J.o.
1882
mussoobie
Bank
V.
Baynob.
While the appeal in the mortgage suit was pending, Albert
Baynor brought the present suit for the purpose of setting aside
the order of the 5th of December, 1876, so far as regards the
twenty-four bank shares bequeathed to him by his mother, and
76
INDIAN APPEALS.
[L.R.
Bank ^
V.
Eaynob.
J. 0. of obtaining possession of those shares. The identity of the shares
1882 with the shares bequeathed by Captain Baynor may be aBsamed
MussooBUfi for the present purpose ; and the case made by the Elespondent
is that Mrs. Baynor took only a life-interest in her husband's
property. On the 10 th of May, 1878, the Subordinate Judge
dismissed the suit, holding that Mrs. Baynor took an absolute
interest under her husband's will. Albert Baynor appealed, and
on the 22nd of August, 1878, the High Court gave him a decree
on the ground that Mrs. Baynor held her husband's estate, not
absolutely in her own right, but as trustee for their childreu, with
a power of appointment among them.
The bank then applied to the High Court for leave to appeal
against this decree. On the 13th of January, 1879, the High
Court refused leave on the ground that the property at stake in
this suit was valued at no more than Bs.6O0O, and that the
question of law was so clear that an appeal could only result in
the affirmance of the judgment.
The bank then presented a petition to Her Majesty in Council
for leave to appeal, on which leave was granted by an Order in
Council dated the 14th of August, 1879. And it is the frame of
that petition that gives rise to the preliminary question now
raised. Waiving all questions as to the honesty of the petitioners,
the Bespondent's counsel insists that in fact their petition is so
framed as to mislead this Board, and to bring it to a favourable
decision on false grounds.
The petition states the petitioners' mortgage suit, number 115
of 1876, and it states the effect of the decree of the High Court
therein ; but it does not give the date of that decree. Then it
goes on to state that under that decree the bank shares were
attached; that Alhert Baynor objected; that his objection was
overruled ; and that thereupon he brought the present suit. The
proceedings in the present suit are correctly stated ; but it is not
true that the bank shares were attached under the decree in the
mortgage suit, or that Albert Baynor's objection and suit directly
struck at any portion of the decree in the mortgage suit. The
shares were attached in the suit relating to them alone, which
was valued at R8.6000 only ; whereas the mortgage suit was of
greater value.
VOL. IX.]
INDIAN APPEALS.
77
j.o.
1882
MUBSOOBIE
Bank
The firat question is, whether the preliminary objection is taken
too late. The order was made ^iore than two years ago, and the
Bespondents were fully aware of it ; yet no objection was made
until all the costs of the appeal had been incurred. As a general
rule, the proper course, in a case like the present, is for the Batnob.
Bespondent to move as early as possible to rescind the Order in
Council ; and their Lordships think it right to call attention to
the opinion expressed in the second volume of the Law Beports,
Indian Appeals, p. 82. It is there said, **In their Lordships'
opinion an objection of this kind ought to be taken by the
Bespondents as early as the matter is brought to their notice, for
the plain reason, that if the leave to appeal is on that ground re-
scinded, no further costs are incurred : and it is wrong to leave .
the objection until the hearing of the appeal, when the record has
been sent from India^ and when all the costs attending the hearing
have been incurred." At the same time their Lordships desire it
to be distinctly understood that an Order in Council granting leave
to appeal is liable at any time to be rescinded with costs, if it
appear that the petition upon which the order was granted
contains any misstatement, or any concealment of facts which
ought to be disclosed.
In this case, if their Lordships had any reason to think that
there were intentional misstatements in the petition, they woald
at once rescind the order and dismiss the appeal. But they do
not think there was any intention to mislead. The Appellant's
solicitor has filed an affidavit shewing how he confused the decree
of the I2th of December made in the mortgage suit, with the
decree of the 5th of December under which the shares were
attached ; and it appears that he did not leave the judgment of the
12th of December to be explained solely by the petition, because
a copy of it was among the papers put in with the petition. Still
if there had been a material misstatement, it is not sufficient to
clear the case of bad faith. To use the words of Lord Kingsdovim (1),
"Where there is an omission of any material facts, whether it
arises from improper intention on the part of the petitioner, or
whether it arises from accident or negligence, still the effect is
just the same if this Court has been induced to make an order
(1) Mohun Lai Sookul v. Bcchee Doss and Others, 8 Moure, Ind. Ap. Ca. 195.
78 INDIAN APPEALS. [L. B.
J.C. whiohy if the facts were fully before it, it would not, or might not
1882 have been induced to make." Their Lordships therefore proceed
MussooBiB ^ <^ whether the order in question was one which they might
Bank ^lot have been induced 'to make if the h/Qts had been fully and
Raymqr. truly stated.
The grotmds which the petitioner relies on as reasons why an
appeal shall be allowedi notwithstanding the value of the suit is
only Bs.6000y are three in number : first, that the decision yirtoally
affects the right of the bank to have a mortgage security for the
whole sum of Bs.32,000 odd; secondly, that the point of law
decided by the High Court will cover other claims arising in
reference to the estate of Mrs. Baynor; and thirdly, that the
decision on appeal in this suit will probably prevent any appeal
against the decree in the mortgage suit, or against the proceedings
in execution thereof Their Lordships conrnder that the first two
grounds are solid grounds for granting the leave asked ; and they
are not at all affected by the error in the petition. It is clear that
if Mrs. Baynor took only a life interest in her husband's property,
the bank cannot enforce their decree against any portion of the
property enjoyed by her in her lifetime, whether comprised in the
mortgage or not, unless they successfully contest against the
Baynor family, as to each such portion, the question whether or
no it belonged to Captain Baynor or was purchased with his assets.
The third ground is affected by the misstatements in the petition ;
firsts because the date of the decree in the mortgage suit is not
given, and therefore it does not appear on the face of the petition
that the time for appealing had, as in fact it had, then expired ;
secondly, because the decree obtained by Albert Baynor appears
to be more directly mixed up with the mortgage suit, when it is
stated that the shares were attached under that very decree, than
when they are shewn to be attached under a decree in a different
suit. Still there is a sense in which the third ground may be
explained. It is impossible to suppose that, after the decision of
the High Court in this suit, any effectual proceeding could be
taken by way of simple execution of the decree in the mortgage
suit, for all purchasers would be deterred by the knowledge that
they were buying a formidable litigation. It certainly would be
necessary for the bank to frame a new suit, properly constituted
VOL. IX.]
INDIAN APPEALS.
79
for the purpose of contesting all questions with the Baynor family
and seeking execution of their decree against them. In such a
suit as that, the construction of the will might, and probably
would, be brought by appeal before this 'Board. And it might
possibly, though probably it would not, be found necessary for
properly working an appeal in a subsidiary suit of that kind to
obtain leave to appeal from the original decree the execution of
which was being prosecuted.
Their Lordships are of opinion that the petition is very faulty,
and that due care was not shewn in its preparation ; but on ex*
amining the grounds for asking leave to appeal, they do not
think that any different conclusion would or could have been
arrived at if the strictest accuracy had been observed. Their
LfOrdships also were, when hearing the preliminary objection,
strongly impressed with the circumstance that there was prima
facie strong ground for an appeal upon the merits. For these
reasons they have thought it right to hear the appeal.
Passing to the merits of the case, their Lordships are of opinion
that the current of decisions now prevalent for many years in the
Court of Chancery shews that the doctrine of precatory trusts is
not to be extended ; and it is sufficient for that purpose to refer
to the judgments given by Lord Justice James in the case of
Lamhe v. Eames (1), and by Sir George Jessel in the case of In re
Hutehinson and Tenant (2). They are further of opinion, that if the
doctrine of precatory trusts were applied to the present case, it
would be extended far beyond the limits to which any previous
case has gone. No case has been cited, and probably no case
could be cited, in which the doctrine of precatory trusts has been
held to prevail when the property said to be given over is only
given when no longer required by the first taker.
Now these rules are clear with respect to the doctrine of pre-
catory trusts, that the words of gift used by the testator must be .
such that the Court finds them to be imperative on the first taker
of the property, and that the subject of the gift over must be well
defined and certain. If there is uncertainty as to the amount or
nature of the property that is given over, two difficulties at once
arise. There is not only difficulty in the execution of the trust
(1) Law Eep, 10 Eq. 267 ; 6 Ch. 697. (2) 8 Ch. D. 540.
J.O.
1882
mussoobie
Bank
V,
Batnob.
80
INDIAN APPEALS.
IL.E.
Bank
V,
Baynob.
J. 0. because the Court does not know npon what property to lay its
1882 hands, but the uncertainty in the sabject of the gift has a reflex
MusfiooBUB action upon the previous words, and throws doubt upon the
intention of the testator, and seems to shew that he could not
possibly have intended his words of confidence, hope, or whatever
they may be, — his appeal to the conscience of the first taker,— to
be imperative words.
In this case nothing is given over to the children of the testator
except by an expression of confidence in his wife that she will
deal justly in dividing the property among them, and that she
will do it when the property is no longer required by her. If the
testator had given to his children such property as was not re-
quired by his wife, or if he had given over his property if it was
not required by his wife, the gift over would, according to a very
well-known and well-established class of cases, have been void,
because of the uncertainty. It would have been void, not merely
because the words of gift over were precatory only, but it would
have been void notwithstanding that the most direct and precise
words of gift over might be used. Their Lordships think that
substantially the words ^* when no longer required by her " must
in this will be taken to have the same meaning as if he had said,
" I give to my children so much as is not required by her." Con-
sidering the nature of the property, which includes a number of
articles as to some of which the use is equivalent to the consump-
tion ; to the nature of the first gift, which, although not expressed
in terms to be an absolute gift, is quite unlimited, and is legally
an absolute gift ; and to the fact that the first gift is only cut
down by words which do not constitute a direct gift, bat are to
operate through an influence upon the conscience and feelings of
the wife, their Lordships cannot come to any other conclusion
than that the testator intended his wife to use the property
according to her requirements. That is equivalent to an absolute
gift to the wife.
They do not think it necessary therefore to enter into a con-
sideration of the various authorities which have been cited as to
the application of the doctrine of precatory trusts, or nicely to
weigh one authority against another. They consider it sufficient
to say that upon this will the wife took an absolute interest, and
VOL. IX.] INDIAN APPEALS. 81
that to apply the doctrine of precatory trasts to it would be a very J. 0.
large extension of that doctrine. 1882
The result is, that their Lordships will humbly advise her mussoobie
Majesty to reverse the decree of the High Court, and to substitute ^^^^
for it a decree dismwsing the appeal to the High Court with costs ; Raynor.
but with respect to the costs of the present appeal they think it
right to follow the case, from which a citation has already been
made, in the second volume of the Law Beports, Indian Appeals,
of Bam Scihuk Bose v. Manomohim Dossee; and having regard to
the nature of the petition presented for leave to appeal, and the
course pursued by the Appellants, they will give no costs of the
appeal. The money which has been deposited will be returned to
the Appellants.
Solicitors for Appellants : W. Carpenter & Sons.
Solicitors for Eespondent : WatJcina & Lattey.
82 INDIAN APPEALS. [L. B.
J. €.• HUERO PERSHAD ROT CHOWDHRY . . Plaintiff;
1882 AND
A^2o. GOPAL CHUNDER DUTT and Othbbs . . Defendants.
ON APPEAL FROM THE HIGH COURT AT CALCUTTA.
lAmUatwnr—Bwgal Act VIIL o/1869» s. 29.
The limitation prescribed by Bengal Act VIII. of 1869, s. 29, is not pre-
vented from running in £Eivonr of a tenant during the period that a suit in
ejectment is pending against him.
Ranee Sumomoyee v. Shooshee Mokhee Burmonia (1) considered.
Appeal from a decree of the High Court (May 16, 1878),
which affirmed a decree of the Subordinate Judge of the 24
Pergunnahs (Nov. 20, 1876), whereby the Appellant's suit was
dismissed.
The suit was instituted in 1876 to recover from the Defendant,
who held certain tenures called chuckdari tenures within the
Plaintiff's zemindary, the rents of those tenures from April, 1866,
to July, 1872.
The Defendants contended, and both the lower Courts held,
that the suit was bBkrred by limitation under Bengal Act YIII. of
1869, 8. 29.
The Appellant contended that his right to demand payment of
those rents was in fact suspended by the continuance in India of
the litigation referred to in the judgment of their Lordships,
down to the date of the decree of the High Court therein, dated
July 25, 1876, and that consequently the arrears sued for did not
properly speaking become due until the date of that decree ; and
he relied upon the judgment of the Privy Council in the case of
Bcmee Sv/rnomoyee v. Shooshee Mokhee Burmonia (1).
The material part of the judgment of the High Court was as
follows : —
•*That judgment (1), properly understood, is, in our opinion,
wholly inapplicable to a case like the present.
• Present: — Sir Babnes Peacock, Sm Robert P. Colleeb, Sir Biohabd
Couch, and Sir Arthur Hobhoubb.
(1) 12 Moore's Ind. Ap. Ca. 244.
VOL. IX.]
INDIAN APPEALS.
83
V.
Gk)PAL
Chttkdeb
DUTT.
'^Here the Plaintiff^ whose ancestor purchased the rights of J. 0.
Government in I860, ought to have known, when the Defendants' 1882
ijara came to an end in 1866, what 'his true position was as HtrsBo
against the Defendants. The Defendants set up against him ^^^
these chuckdari tenures ; and, if the Plaintiff had made proper Ohowdhbt
inquiries he might have ascertained whether those tenures really
existed. But he chose to ignore them, and to sue the Defendants
(improperly, as it has turned out) for khas possession of the
talook ; and it is not because he has made a mistake, and by that
mistake put the Defendants to the cost and inconvenience of a
long litigation, that he has a right now to claim immunity from
the provisions of the Limitation Act.
*' If that were so, any man who mistakes his proper rights and
remedies, might, with equal justice, claim exemption from these
provisions.
^^ Take the ordinary case of a landlord giving his ryot notice to
quit, and at the expiration of that notice bringing a suit to eject
him. The ryot sets up a right of occupancy ; and the landlord,
after a litigation extending over four or five years, is eventually
defeated upon that ground. Could the landlord, under such
circumstances, sue to recover rent from the ryot, which accrued
four years previously, and contend that he was not bound by time,
because he could not pursue his claim for rent and his claim for
ejectment at the same time? In our opinion, certainly not.
Such a case would be entirely different from that decided by the
Privy Council. If a landlord could recover back rents under
such circumstances, he would be taking advantage of his own
mistake, to relieve himself from the law of limitation.
** In this case the Plaintiff ought to have known in 1866 what
his true position was as against the Defendants. Instead of
treating them as tenants, and claiming from them the rents
which they would probably have paid, he brought a suit against
them for khas possession. Having failed in that suit, he is now
trying to recover the rents as from 1866. We think he was
clearly barred.
Doynef for the Appellant, contended on the authority of the
case in 12 Moore, that so long as the former litigation continued,
no rent was, as between the Appellant and Bespondents, due and
84
INDIAN APPEALS.
[L.R.
J.O.
1882
HUBBO
Persbad
Roy
Ghowdhbt
V,
GOPAL
Ghundeb
DUTT.
recoverable. In that litigation the Appellant bond fide denied
the validity of the ohuekdari tenures, and conseqaently the obli-
gation of the Defendants to pay him rent. Until the existence
of the tenures was ascertained it was premature to sue for rent,
and the statute did not run. Reference was made to Bengal Act
VIII. of 1869, ss. 58, 59, and 61.
' The Bespondents did not appear.
The judgment of their Lordships was delivered by
Sir Robert P. Collier : —
In this case the sole question is as to the application of the
law of limitations. The claim is for rent from April, 1865, to
June, 1872. The terms of the 29th section of Act VIIL of 1869
of the Bengal Council are these: "Suits for the recovery of
arrears of rent shall be instituted within three years from the last
day of the Bengal year, or from the last day of the month of Jeyt
of the Fuslee or Willayuttee year in which the arrear claimed
shall have become due." It is admitted that in this case the suit
was not instituted within three years from the end of the year
when the last rent became due, and therefore prima facte it is
barred by the law of limitation. This prima facie case is endear
voured to be answered in this way: The Plaintiff says that in
1874, that is to say, two years after the last instalment of the rent
sued for had accrued due, the statute ceased to operate, because
he instituted a litigation which had the effect of preventing it
from running, and that therefore a portion at least of his claim is
not barred. That litigation was this : He brought three suits in
the year 1874 against the tenants with respect to whose arrears
of rent the present action is brought, for the purpose of ejecting
them from their holdings, which were called chuckdari holdings,
in a certain zemindary of which he was possessed. These suits
were dismissed by the First Court, and on the 25th of July, 1876,
by the Appeal Court, on the ground of limitation. On the 7th of
September, 1876, the Appellant commenced the present suit, con-
currently with which he prosecuted an appeal to Her Majesty in
Council from the decree of the. 25th of July, 1876. His appeal
was dismissed on the 26th of May, 1881.
The Appellant contends that the statute did not run against
VOL. IX.]
INDIAN APPEALS.
85
his claim for rent after the year 1874, wheo he commenced these
suits ; and for that proposition he relies solely on the authority
of the case of Banee Sumomoyee v. Shooshee Mokhee Burmonia (1).
Both Courts in India have decided against the Appellant upon
the ground that the statute applies, and that his case does not
come within the exception to the operation of the statute estab-
lished in the case of Banee Sumomoyee — an exception rather
apparent than real.
The effect of that case may be very shortly stated. The
zemindar brought a certain putni talook to sale and sold it to
a purchaser who was put in possession of it, and out of the pur-
chase-money the arrears of rent were paid. Subsequently this
sale was set aside for irregularity ; the zemindar had to refund
the purchase-money received by her, and the putnidar who suc-
ceeded in setting it aside obtained also the mesne profits for the
time during which he was ousted. Under those circumstances
this Committee, whose judgment was delivered by Sir James
Colvile, observed : " It is clear that until the sale had been finally
set aside, she "—that is, the Plaintiff—" was in the position of a
person whose claim had been satisfied, and that her suit might
have been successfully met by a plea to that effect" In other
words, the effect of the judgment of this Board is, that under the
peculiar circumstances, the putnidar having recovered possession
together with mesne profits, it was equitable that he should pay
the amount of rent which was in arrear ; but that ajnount of rent
did not accrue until the sale of the putni had been set aside, and
therefore until that time the statute could not run. This exami-
nation of that case shews it altogether to differ from the present.
Here there was no period of time in which the rent could not
have been recovered. There was no period of time in which,
therefore, the statute might not have run.
This case, therefore, being inapplicable, and no other case being
relied upon, their Lordships have only humbly to advise Her
Majesty that the judgment appealed against be a£Srmed, and that
this appeal be dismissed.
Solicitors for the Appellant : Barrow & Begets.
(1) 12 Moore's Ind. Ap. Ca. 244.
J. C.
1882
HOBRO
Pebshad
Roy
Chowdhrf
V.
GOPAL
Chundeb
Ddtt.
Vol. IX.
H
86 INDIAN APPEALS. [L. R.
J.o.» PUEMANUNDA8S JEEVUNDASS (Db- ) .
,aao X ^ Appellant;
1882 pendant) J
4jM-a 25, 26. AND
VENATEKBAO WASSOODEO (Plain-
tiff) AND THE ADVOCATE-GENEBAL \ Respondents.
JFOR BOMBAY (Defendant) . . .
1
ON APPEAL FROM THE HIGH COURT AT BOMBAY.
Charitaible Trusts — Dedication — Effect of Agreement.
Where certain specific property (part of a testator's estate) had been set
apart by the executors to answer the charitable trusts created by his will,
and the residue of his estate had been made over to the Appellant (residuary
legatee and heir) who ratified such arrangement by deed and himself became
a trustee : —
EM^ that there had been a valid dedication to charitable purposes of
the said property, whether or not the will, having regard to the testator's
proprietary right, was originally operative for that purpose as i^inst
the heir.
Appeal from a decree of the High Court (Jan. 18, 1879),
a£SriniDg a decree of a single Judge (March 7, 1878) whereby it was
declared that the charity, the subject of the litigation, was well
established.
The charity was created by the will of one Bunehordas Ctmjee
of Bombay, who died on the 14th of May, 1849, having appointed
the Bespondent and others his executors, and leaving his nephew
the Appellant (who was also his residuary devisee and legatee
under the will) his heir.
The suit was instituted on the 8th of April, 1876, against the
Appellant and others for the appointment of a new trustee or new
trustees (the original number having been reduced by death and
otherwise) to carry out the trusts of the charity and for incidental
relief.
It was contended by the Defendant (the Appellant) that the
• Present: — Sm Babnbb Peacock, Sib Robert P. Collibb, Sib Riohabd
Ck)ucB, and Sib Abthub Hobhoube.
VOL. IX.] INDIAN APPEALS. 87
will was void by Hindu law as against him on the ground that J. G.
the testator and his brother Jeevtmdasa (the Appellant's father) 1882
who predecjeased the testator, were members of an undivided pubmI-
Hindu family and that the joint family property was wholly j^^^gg
ancestral, and that the testator had no property on which his will «*
-J ^ * i .^ Venayekbao
oould operate. WAssooDEa
The substantial questions involved in the appeal were (1) whether
the Appellant in this appeal was in virt»e of the will or otherwise
bound to recognise and give effect to the above charitable direc-
tion or bequest contained in the will, which was for the erection
and maintenance of a dhurumsala to serve as a lodging for Sadhoos
and Sants ; (2) whether in case of his being so bound an order
made upon him in this action for the delivery to the Accountant-
General of the High Court of Judicature at Bombay of certain^
Government promissory notes to the nominal value of rupees
one lac fifty-seven thousand two hundred was under the circum-
stances right and proper.
The directions in the will and the transactions which took
place subsequently to the testator's death and related to the
charity are set out in the judgment of their Lordships.
Foohs, Q.C., and Seoble, Q.C (IF. Fooks with them), for the
Appellant, contended that the testator was a member of a Hindu
family, joint in food, worship, and estate, consisting originally of
himself and his brother, their father, and two uncles, and the
Appellant, and governed by the Hindu law prevailing in the
Bombay Presidency. The presumption was in favour of the
family being joint and the estate ancestral and there was no
evidence to the contrary. Even if on the evidence the testator
had acquired any portion of the estate, such portion was very
small. The Courts below should have ascertained the amouut
and value of such self-acquired estate and that it was sufficient to
answer the testator's debts and legacies including the charitable
bequest. The property being ancestral it was vitra vires for the
testator to dispose of it by will. It survived to the Appellant.
There being no obligation cast upon the Appellant by the will
to establish the dhurumsala unless to the extent of such self-
acquired property (if any) as came to Appellant's hands for that
H 2
88 INDIAN APPEALS. [L. B.
J. G. purpose, neither was any obligation cast upon him by the deed
1882 of conveyance and release dated the 11th of May, 1870, nor by
PuBMA- ^^® family agreement of the 6th of November, 1873, nor by the
JeeTnrLs ^^^"^y nianagement trust deed and other documents executed
V- contemporaneously therewitb. It was also contended that such
"^y yT^ A Y ft ' lC RAO
Wassoodeo. deeds did not operate by way of estoppel or involve any admission
.by the Appellant of such obligation. The release itself on its
true construction, and haying regard to the proviso, does not
extend to ratify any acts of the executors which were beyond
their authority, or to release them from any liabilities which they
have incurred.
LeUhy Q.G., and C. ParTce^ for the Eespondent, V&ruiyekrao
Wassoodeo, were not called on.
The judgment of their Lordships was delivered by
Sir Arthur Hobhouse : —
The suit which gives rise to this appeal is founded on the will
of one Btmchordass ChvMoor, who was a merchant carrying on
business in the city of Bombay, By his will he deyoted a lac of
rupees to the establishment and maintenance of a dhurumsala in
Bombay for the benefit of Sadhoos and Sants. The PlaintiflF and
the present Respondent is one of the trustees named in the will,
though he appears never to have acted in the trusts until he came
forward to institute the present suit. His plaint is very brief. It
consists substantially of a statement of the will; and a further
statement that the directions of the testator were carried out by
the acting executors, and that the dhurumsala was founded and
endowed in compliance with those directions. Then he shews
how it is that new trustees are wanted, and he prays that a new
trustee or trustees be appointed under the order and direction of
the Court to carry out the trusts " hereinbefore mentioned," mean-
ing the trusts of the will. He prays no other specific relief; and
the Court, in granting the relief that he prays for, have only
made such declarations and given such C/Onsequential directions
as are necessary for the purpose of that relief.
The Appellant, who was Defendant in the suit below, is the son
of the testator's only brother, who was dead at the date of the will ;
VOL. IX.] INDIAN APPEALS. 89
and the testator mentions the Appellant as being to him as a son. j. c.
Either as heir or as the residuary devisee and legatee of his uncle 1882
the testator, he is entitled to the whole residue of the testator's pi^^.
property. He resisted the appointment of new trustees, and in j^^^^^^^gg
his written statement he grounded his objection on the allegation v.
that the will of the testator is void and inoperative under the wassooleo.
Hindu law. He contended that no effect should be given to the
provisions thereof, except to such extent and in such manner as
he, the Appellant, might consent and agree that the same should
be effective. The meaning of that plea is further explained in the
written statement, and by the evidence and arguments in the case.
In effect the Appellant contends that the property of which the
testator was in possession during his lifetime was joint family pro-
perty, and that under the provisions of the Mitakshara law the
testator had no power of disposing of it to the dhurumsala or
other charitable objects indicated by his will.
In the decree pronounced at the hearing by Sir Charles Sargent
the High Court has declared that the charitable trusts in the will
of the testator Bv/nchordass are well established, and that certain
sums of money ought to be applied for the several charitable
purposes mentioned in the will. It then goes on to order the
Appellant to deliver to the Accountant-General certain notes and
securities which have been earmarked as the property belonging
to the charitable trust, and it appoints two persons to be trustees
jointly with the Bespondent, and declares that the Appellant is
entitled to share with the trustees in the management of the
charity. That is substantially the whole of the decree. The
question is whether it is right. The Appellant was dissatisfied
with it, and he appealed to the Court of Appeal His appeal
there was dismissed, and he is now appealing to Her Majesty in
Council.
There has been a considerable amount of argument, both in the
Courts below and at the Bar here, upon the question whether or
no the testator Btmchordass had such an ownership of this pro-
perty as entitled him to devote a lac of rupees to the charity
in question. Their Lordships are not disposed to express any
opinion upon that point, because they consider that if it were
held that the power of the testator was doubtful, or even that it
90 INDIAN APPEALS. [L. E.
J. G. did not exist, the case must still tarn upon the effect of trans-
1882 actions which have taken place since his death.
PuBMA- Those transactions are partly stated in and partly summed up
j^JStoass *°^ completed by a deed which was executed on the 11th of Hay,
V. 1870. For the purpose of seeiner the exact effect of that deed it
Venatekbao .
Wa»8oodeo. will be desirable to state what are the provisions of the testator's
will. The will wag made on the 12th of May, 1859. The testator
recites that his ouly brother Jeevandass is dead, and has left a son
of the age of about eight years, and that the testator himself has
no issue. Therefore he says that the Appellant, being considered
by him as a son, has a right of inheritance to the whole of the
movable and immovable property ; and when he attains the age
of twenty-one years the executors appointed in the will shall
entrust to the Appellant the whole of the testator's property,
movable and immovable, that may remain after defraying the
expenses agreeably to all the conditions stated in the will. Then,
after certain provisions for members of the family, he provides for
the dhurumpala as follows : — •' One month after my death a piece
of ground shall be purchased in Bombay^ and a dhurumsala be
erected thereon to serve as a lodging for the Sadhoos and Sants.
A sum to the extent of B8.25,000 shall be expended thereon, and
Government notes for Rs.75,000 shall be purchased for the main-
te/iance of these Sadhoos and Sants, and that the maintenance
expense shall be defrayed out of the amount of interest that may
be realized therefrom; and all the executors appointed in my
will shall, up to the time Bhai Permanimdass attains the age of
twenty-one years, conduct the management of this dhurumsala>
and they shall, as long as the sun and moon exist, defray the
expenses of the said dhurumsala out of the above-mentioned
fund ; and even after Bhai Permammdass shall have attained the
age of twenty-one years, these executors and said Bhai shall
jointly conduct the management of this charity. Perchance
should any one of these executors die, so long as three of those
persons are alive they and Bhai Permantmdass shall jointly con*
tinue to conduct it, and even should any of them die, such of
these executors as may be surviving shall appoint a respectable
and good man of my caste as a vakel ; and they shall conduct
the management of the said dhurumsala." It seems that by the
VOL. IX.] INDIAN APPEALS. 91
word ^ vakel'* there the testator meant a representative or an J. c.
executor. It appears that the will was written in the Gujrati i882
language. p^;;;;;.
The testator died two days after the date of his will The ^^^^^^
^ JEEVUNDA8S
executors named in the will are five persons : — Bhai LuknUdciss v.
Damji, who has been the principal acting executor, and who Wassoodbo.
acted up to and after the year 1874, but who is now dead ; Shah
Bhanahhai Dtvarkadcus, who also acted in the trusts of the will,
but be became blind and desired to be discharged in the month
of September, 1874; Bhai Jairaz Chapsi, who also acted in the
trusts of the will, and died on the 6th of June, 1873 ; and the
other two are, one Parsi Dhanjibhai Framji, who has never acted
at all, and the Bespondent, whose position has been mentioned
before.
It appears from the deed of the 11th of May, 1870, that the
affairs were managed by the three acting executors up to that
time, and at that date the Appellant had attained the age of
nineteen years. He had not attained the age of twenty-one, at
which time the testator said the property was to be transferred to
him ; but he was some years past his majority, and as there was
no contingency in the gift on his attaining twenty-one and no gift
over, he would clearly be entitled upon his majority to have the
affairs of the estate adjusted, and to have so much as was attribu-
table to clear residue banded over to him. The adjustment was
made by this deed of the 11th of May, 1870, and it is necessary
to state it with some particularity. The parties to it are the three
executors who proved and acted of the first part, and the Appellant
of the second part. First come several recitals of the state of the
family and the property previous to the testator's will. Then the
will is recited, and it is stated that the executors have acted in
execution of the different trusts of the will. Then follow these
recitals: — *'And whereas the said PtirnumtmdasB Jeevundass,
being satisfied with the management and administration of the
aforesaid estates and property by them the said parties hereto of
the first part, and the said parties hereto of the first part being
willing to make over and assign to him, in manner hereinafter
mentioned, the said estates and property remaining in their
hands, not subject to charitable and other trusts, has agreed to
92 INDIAN APPEALS. [L.B.
J. G. execute the release and ooveDant hereinafter contained. And
1882 whereas the said parties hereto have in their possession as
p^^. such executors as aforesaid the several particulars of moveable
»uNDA£w and immovable estate mentioned in the several schedules
jEEYUNDASfl
V hereto'' — then the deed goes on to make some statements con-
Vena Y unc B Art
Wassoodeo. ceming the schedules, and amongst them is this» that in part 6
of Schedule A. are "certain Government promissory notes and
shares and sums of cash which have been appropriated to the
respective trusts and purposes in the same part 6 of the same
schedule respectively mentioned." Turning to part 6 of the
schedule, it is found that the promissory notes, shares, and cash
therein mentioned are all appropriated to certain charitable trusts.
They are headed as being "appropriated to trust." There are
several trusts, but with reference to the dhurumsala occurs the
following passage : — " The following charitable places and charities
to be carried on by the parties to these presents jointly: —
(Sadavut) charitable place at Cowasjee PaieU tank of Btmaordass
Chanjee, where at present the Sadhoos, Bhattas, and Brahmins
are feasted. Promissory notes and ready cash and documents of
properties relating to this account are now in possession of the
three executors." Then the schedule goes on to mention another
charity, which has been spoken of as the Purshotum Charity.
Beturning to the body of the deed, we find further recitals as to
certain amounts advanced on two mortgages, and then comes
the witnessing part. That consists of the formal transfer of
the various properties, excluding those contained in part 6 of
Schedule A« After that has been effected, comes a release by the
Appellant of the three executors, which is in these terms : — ** And
this indenture also witnesseth that, in consideration of the pre-
mises, he the said Permanundass Jeevundasa doth hereby release
the said huckmidass Danjee, Dhanabhoy DwarJcadass, and Jairez
Champseyy their and every of their heirs, executors, administrators,
assigns, and effects, from all and all manner of sums of money,
actions, suits, accounts, claims, and demands for and in respect of
the administration, disposition, and application of the property,
estate, and effects of the said Kahanjee Chattoor, Runchordass
Kahanjee, and Jeevundass Kahanjee, or any part thereof, or for or
in respect of any sale, loan, investment, act, or thing made, done.
VOL. IX.] INDIAN APPEALS. 93
or executed, or neglected or omitted, by the said Ltiehmidass J.o.
Damjee, Dhandbhoy DwarhadasB, and Jairess Champs^, or any of 1882
them, in or about the property, estate, effects, or affairs of the said p^^.
Kahanjee ChcUtoor^ Btmehardasa Kahanjee, and Jeevwndass Kahanjee, , nundass
or any of them, or any part thereof, or in execution of the said «.
recited wills or either of them, or in relation thereto, and for or Wassoodeo.
in respect of any other thing in anywise relating to the premises."
Then follows this proviso, on which the Appellant greatly relies: —
** Provided always that nothing herein contained shall operate to
release the said parties hereto of the first part, their heirs, exe-
cutors, administrators, assigns, or effects, from any liability arising
either under any covenant herein contained,"— that refers to
covenants against incumbrances and for further assurance — ^* and
on their part to be observed and performed, or under any of the
trusts appertaining to the property, estate, and effects respectively
mentioned and described in the 6th part of Schedule A. to these
presents, or otherwise relating to the same property, estate, and
effects respectively."
It does not appear to their Lordships that that proviso has any
effect in cutting down the general ratification by the Appellant of
those actions of the executors with which he is said to be entirely
satisfied. It seems to them that it is the ordinary case of a pro-
perty not wholly administered, but so far administered that the
executors are entitled to a release from the residuary legatee.
In point of fact this property cannot be wholly administered at
any time, because some of the trusts are perpetual. Bat it was
administered so far as this, that the executors found themselves
in a position to hand over the residue, which seems to have been
very large, — eight or nine lacs of rupees, — ^to the residuary
legatee, he undertaking to answer all remaining legacies and
trusts for private persons to which the property was liable, and
the executors retaining so much as was necessary to answer the
purposes of the permanent or charitable trusts which remained to
be performed. From these trusts of course the Appellant could
not possibly release the executors ; and it appears to their Lord-
ships that this proviso, of which so much has been made, is the
ordinary proviso which conveyancers, perhaps needlessly, are apt
to put into a deed of release of this kind, merely for the purpose
94 INDIAN APPEALS. [K B.
J. 0. of shewing that the residaary legatee does not release, and does
I 1882 not affect to release^ the executors from those tnists which yet
i p^A- remain to be performed. Therefore the effect of this deed is that
j^TOTD^fiB ^^^ testator's estate is up to this point settled. Certain specific
«• property is set apart to answer the charitable trusts, and by reason
Wassoodeo. of its bemg set apart the executors find themselves m a position
to put the Appellant in possession of the residue. Not only is the
specific property set apart and ear-marked as applicable to the
trusty but the Appellant himself becomes the trustee of it. By
the words of the schedule he undertakes to act jointly with the
executors as a manager of the charities : ** The following chari-
table places and charities to be carried on by the parties to these
presents jointly."
The effect of this is to make a valid dedication to charitable
purposes of the property which is specified in the 6th part of
Schedule A. It has been said in argument that all that this deed
amounts to is only a statement of what the executors have done,
and it is suggested that they have done it against the will of the
Appellant. All that their Lordships can say to that is, that it is
directly contrary to the expressions of the deed. According to
the deed the Appellant is perfectly satisfied with what has been
done, and he is glad to have this property set apart and to receive
all the residue himself; and he undertakes to join in the manage-
ment of the dedicated property for the benefit of the charities.
Whether the Appellant conceived that he was legally bound to
acquiesce in the executors setting apart this property owing to
RanehordasB^ power over it ; or whether he considered that it was
doubtful whether he was legally bound, but that, owing to that
doubt and owing to the respect due to his uncle, he ought to have
the property set apart; or whether he considered that he was
under a moral obligation only ; it is clear that in point of fact he
did join in an arrangement by which there was a perfectly good
dedication to charity. Now that arrangement cannot be altered ;
nobody has the power to alter it. It is said that the execution of
this deed amounts only to that which is technically called an
estoppel, which operates only between parties and privies to the
deed. The absurdity of that position was exposed at once by the
supposition that iMokmidass, who is a party to this deed, should
VOL. IX,] INDIAN APPEALS. Oe')
have lived up to the present moment instead of dying. In that J. 0.
ease Mr. FooTcs was fain to admit that an estoppel would operate ; 1882
but it is impossible that the true owners of this property can be pobma-
damnified by the aocident of Lu/ckmidaM having died before the j^^^fgg
institution of the suit. The true owners of this property are not «•
Venaybikbao
LuekmidasB or the Plaintiff, but the objects of the la-Ust, the Wassoodbo.
Sadhoos and the Sants, for whose benefit the fund is given. Such
acknowledgment as there is operates not to the benefit of Lttck"
midasa and his two co-executors alone, but for the persons whom
they represented — ^that is to say, the charity at large.
That, in their Lordships' opinion, disposes of the case ; and the
only importance of the subsequent transactions is to shew exactly
how the dispute arises, because attempts have been made to appoint
new trustees and to alter the management of the charity. On the
6th of November, 1873, another deed was executed between Luck-
midass of the first part, certain widows entitled to maintenance of
the second and third parts, and the Appellant of the fourth part
In the recitals of that deed there is no sort of dissatisfaction shewn
with the arrangement that was made three and a half years before,
but, on the contrary, there is a recital to this effect : — " Whereas
there is now in the hands of the said Luckmidass Damjee certain
promissory notes of the Government of India of a nominal value
of rupees one lac thirty-nine thousand and five hundred, with the
unexpended interest accrued thereon, as appears by the account
relating thereto and kept by the said Lfuekmidass Damjee^ being
the amount set aside by the executors of the said Rimchordas
Ccmjee for the purchase, erection, and maintenance of a dhurum-
sala in Bombay for Sadhoos, as directed by the will of the said
deceased." There is a distinct reference to the will of Rwnelwrdaas
as directing the maintenance of the dhurumsala, and a statement
that there is now in. the hands of Imckmidaaa, who appears to
have assumed the sole management to the exclusion of his two
co-executors, this sum of E8.1,39,500. The operative part of the
deed is mainly for the purpose of settling disputes which had
arisen between the widows and the Appellant ; but it also relates
to the charitable trusts, and the first clause of it is to this effect:
— ^** The said sum of Rs. 1,39,500, together with the interest accrued
due thereon as aforesaid, shall be set apart in trust for the benefit
96 INDIAN APPEALS. [L. B.
J. G. of the said Sadhoo dhuramsala, in compliance with the direction
1882 in that behalf contained in the said will of the said Bunehordass
PcBMA- Canjee, and shall be indorsed in the joint names of the said Ltbch"
Jee^^ D^^ss ^*^^* Damjee, Ptirmammdass Jeevundass, Venayekrao Wassoodeo,
*> Khutttts Mv>coonjee, and Stmderdass Modjee^ who shall be the trns-
Wassoodeo. tees of the charity, and that the said Luckmidasa Dcmjee shall
during his life be the sole managing trustee and keep the account
of the said charity, and that after his death or resignation the
said Pti/rmammdass Jeevundass shall be the managing trustee, in
like manner and with the like powers, but that the said pro-
missory notes shall be kept in the custody of the said Purmantm-
dass Jeevundass.*' Now nothing is clearer there than that the
parties conceived that they were acting under the will, though
they did more than the will authorized. The power to appoint
new trustees had not arisen. Neither had they power to make
any binding appointment of a sole manager. If indeed all they
meant was, The trustees shall be responsible for the management,
but we will agree that one shall do the work, then they would be
making an arrangement inter se which is common enough among
trustees; but if they meant that which is now relied upon by the
Appellant, if they were intending to constitute a wholly new
basis for the trust, then they were departing from the provisions
of the will, which they evidently intended to abide by.
There is one subsequent deed of the 9th of September, 1874,
made between Luekmidass the Appellant, and the Respondent of
the first part, Bhanabhoy of the second part, and the three parties
of the first part, with Khuttas Mucconjee and Sunderdass Modjee of
the third part. The object of that deed was to appoint five trus-
tees of the charity. Bhanabhoy was then blind and desired to
retire ; Jairaz Champsey was dead ; and the consequence was that
the trust was not sufficiently manned. The appointing parties
are the three remaining executors and the Appellant, who was
recognised by the testator as entitled to act with the executors in
the management of the trust. They assume that they have a
power of appointment which under the terras of the will they
really have not. But they still wish to act in accordance with
the will, and in the recital which immediately precedes the wit-
nessing part of the deed it is said that the parties of the first and
VOL. IX.] INDIAN APPEALS. 97
second parts, in execution of the power reserved to them in the J. G.
will of Bunchordasa Canjee and of all other powers, have proposed 1882
to nominate and appoint two new persons to be trustees in the pxJi^.
room and stead of Jairaz, who was dead, and Bhrniahhoy, who was j^y^NDA s
blind ; and they effect the appointment accordingly. Then they «
provide in a subsequent part of the deed that one trustee for the Wassoodeo.
time being shall be the manager; that Luckmidass shall be the
first manager, and that when he ceases to be a trustee the Appel-
lant shall be the manager. They may have thought that they
bad power to appoint one of their own body to be manager, taking
the responsibility for the whole. It is not an unreasonable
arrangement from the point of view of the trustees inter se ; but
that they intended at this time to depart from the trusts of the
will is conclusively negatived by the recital which has just been
read. If they did intend it, their intention could not take effect.
That being so, it is difiScult to see on what point the decree is
wrong. Once establish the will and all the rest follows. It is
quite right to constitute the trust fully ; and the Court has not
gone beyond its proper discretion in appointing two new trustees.
It is quite right that all the notes and securities shall be put in
proper custody ; and that the Court has ordered.
With reference to the question of costs, it is suggested that an
injury is done to the Appellant by the order that though the
costs of the other parties shall be paid out of the charity fund, he
shall be left to bear his own costs. On considering that matter,
their Lordships do not see their way to alter the decree of the
Court below. It would be departing from the general rule that
the discretion of the Court below with respect to costs is not
altered when there is no substantial alteration made in the decree
itself. It is not a universal rule, but it is a general rule and a
sound one. In this case their Lordships see no reason to depart
from the rule. If the Appellant had on attaining age disputed
the right of the testator to establish this charity, there would
undoubtedly have been a suit instituted for the administration of
the trusts of the will and the establishment of the charity by
settingi^part a proper portion of the testator's estate to answer it ;
and the costs would have fallen on the residue of the estate. By
the arrangement made in 1870 the Appellant himself comes
98 INDIAN APPEALS. [L. E.
J. G. forward to assent to the appropriation of a proper sum to answer the
1882 (»haritable trusts, and he takes all the residue clear of that liability.
Po^A- ^® therefore has, by not disputing the will at that time, escaped
J^vmmAss *^® liability to costs which would certainly have fallen on the
V. residue of the estate. Their Lordships entirely acquit the Appel-
Wassoodeo. lant of any covetous or sordid motives in this litigation. He has
been willing to part with the money and to establish the charity
which his uncle desired ; but he has also desired to get that which
the will did not give him, — ^the entire control over it, and that is
the cause of the dispute. Their Lordships think his own costs
must now be borne by himself. He does escape the costs of the
suit so far as the Plaintiff and the Advocate-General have incurred
any, for those are to come oat of the fund ; and their Lordships
think that he has obtained quite safiScient advantage by the decree
as it stands in respect to costs.
The result is, that their Lordships will humbly advise Her
Majesty to dismiss the appeal ; and the Appellant must pay the
costs of the appeal.
Solicitors for Appellant : Hughes dt 8an$,
Solicitors for Bespondent : Pollock & Co.
VOL. IX.] INDIAN APPEALS. 99
BAO KABAN SINGH Dependant; j.c*
AND
1882
HAJA BAKAR ALI KHAN Plaintiff. April %e, 27,
ON APPEAL FROM THE HIGH COURT AT CALCUTTA.
Limitation — Act IX, of 1871, 2nd Bched. No. 145 — Adverse Possession — Pas-
session hy the Collector not (adverse to the true Owner,
Although under the old law of limitation a Plaintiff must prove that he
was in possession of the property in suit within twelve years before suit, yet
undOT Act IX. of 1871 he may sue within twelve years from the time when
the possession of the Defendant, or of some person through whom he claims,
became adverse to him.
A Collector in possession of land for the purpose of protecting the GoT^em-
meut revenue, is bound to pay the surplus proceeds of the estate to the
real owner, and his possession does not become adverse to the real owner by
reason of paying such proceeds to an adverse claimant.
Appeal from a decree of a Full Bench (Jan. 31, 1878) whereby
a decree of a Divisional Court (April 17, 1876) was upheld, which
affirmed a decree of the Judge of Aligarh (April 15, 1875) in favour
of the Bespondent, the Plaintiff.
The suit was brought on the 6th of June, 1874, against Rao
Kha/rag Singh^ Boo Budar Singh, and Boo Karan Singh, the
above-named Appellant, to recover principal and interest due on .
two registered mortgage bonds, dated respectively the 7th of
January, 1862, and the 6th of October, 1862, executed by JBa-
harjit Singh, as father and guardian of the said Kharag Singh
and Btidar Singh, then minors ; and also to recover the amount
claimed by sale of mouzah Khurd Khera, pergunnah Koil, hypo-
thecated by the said bonds, of which property the Appellant, Boo
Earcm Singh, claimed to be in possession.
The defence, so £Eir as concerns the sole Appellant Boo Karan
Singh, was that he had been in adverse possession of the property
for more than twelve years before the commencement of the suit,
so that the claim of the Eespondent was barred by the limitation
* Present:^ Sir Basseb Peacock, Sis Bobest P. Collisb, Sib Richabd
Couch, and Sib Abthub Hobhouse.
100 INDIAN APPEALS. [L. R.
J. C. in article 145 of Act IX. of 1871, The Appellant further con-
1882 tended that the consideration for the bonds never passed, and that
Bao Kaban the bonds were not executed in good faith by Baharjit Singh for
®'^|^° the benefit of the minors.
Raja Bakab The three Courts mentioned above, held that the Defendant,
At.t Khan,
the above Appellant, had failed to prove an adverse possession of
the property for the twelve years aforesaid ; that the considera-
tion for the bonds had duly passed, and that the bonds were
executed in good faith and for the benefit of the minors.
The concurrent findings in favour of the Bespondent upon the
two latter questions, being findings of fact^ the question injappeal
arose out of the plea of limitation.
The facts are stated in the judgment of their Lordships.
0. W, Arathoon, for the Appellant, contended that by a general
principle of law the Plaintiff could not recover unless he shewed
a possession within twelve years from date of suit. [Sir Barnes
Peacock : — General principle does not prevent a Plaintiff from
recovering possession of his property at any time. You must
shew the limitation clause on which you rely.] See Act IX. of
1871, 2nd sched. No. 145.
Leith, Q.C., and Witty for the Bespondent, were not called
upon.
The judgment of their Lordships was delivered by
Sir Barnes Peacock : —
This is a suit brought to recover a sum of Bs. 13,745 on two
bonds, one dated the 7th of January, 1862, for Bs.4000, and the
other dated the 6th of October, 1862, for E8.1000. Those bonds
were executed by Baharjit Singh, the father of Kharag Singh
and Rudar Singhy who were infants, for money advanced by the
Plaintiff to enable them to defend certain suits brought by Karan
Singh. It appears that Badam Singh was entitled to certain
property, and that upon his death his widow took possession.
Karan Singh, who is now the Appellant, brought a suit to turn
the widow out of possession upon the ground that Badam Singh
had made him his heir-at-law. That suit was defended by the
YOL. IX.] INDIAN APPEALS- 101
widow, who died during the pendency of it ; and the grand- J.
children Kharag and Bui(Mr Singh were made parties to the suiti 1882
BaharjU their father acting as their guardian. The suit was bao^kIban
determined in favour of the Defendants. After the death of the ^^^
widow, Karan Singh claimed the property on behalf of his grand- ^^^ Bakab
father Qholab Singh, on the ground that the infants, who were
sons of a daughter, were not, according to a custom of the family,
entitled to inherit the estate. The father of the infants borrowed
the moneys for the purpose of defending the suits, and it is now
admitted that no question can be raised as to the validity of the
bonds, the father having been justified under the circumstances in
borrowing the money, and the Plaintiff in lending it, for the
benefit of the infants. The bonds are both in the same terms : —
^ I therefore covenant in writing that I shall pay the above-men-
tioned amount in full, with interest at one rupee per cent, per
mensem, on demand, without raising any objection or pretext ;
that until the payment of the amount of this bond, the share
in mouzah Khurd Khera, pergunnah Barovli (which is already
hypothecated in satisfaction of the former loan), shall remain
pledged and hypothecated in satisfaction of this loan also ; and
that I shall not alienate it elsewhere by means of mortgage sale."
That is what is usually called a mortgage bond. The Plaintiff
claimed to enforce payment of the money due under the bonds
by sale of mouzah Khurd Khera, the estate which was hypo-
thecated. The only question now remaining, the bond having
been held to be a valid bond, is whether the Plaintiff in the suit
is barred by limitation.
The second suit against the infants was referred to arbitration,
mider which, by an award dated the 5th of August, 1863, the
village Khurd Khera, which was sought to be sold by auction,
together with other villages and properties belonging to Badam
Singh, were declared rightfully to belong to Golah Singh, the
Defendant's grandfather, and not to Kharag Singh and Budar
Singh. The Defendant Karan Sin'gh, as guardian of Oolab, sued
on the said award, and obtained a decree from the Principal
Sudder Ameen's Court on the 81st of August, 1863, in execution
of which he was put into possession in October of the same year.
Pending the disputes between Karan Singh and the infants,
Vol. IX. I
102 INDIAN APPEALS. [LB.
J. 0. the Collector, in order to secure the Grovemment revenuey attached
1882 and took possession of the property, and retained possession from
Bao Ea&an 1861 nntil October, 1863, when, in consequence of the decree
Smoh ^f ^Yxe Principal Sudder Ameen, he delivered possession to the
Raja Bakab Defendant and paid over to him the surplus profits of the estate
after deducting the Government revenue and expenses. The
present suit was brought in the year 1874 ; and at that time
twelve years had not elapsed from the time when the Defendant
obtained possession from the Collector. It was contended that
the Plaintiff must prove that he was in possession within the
period of twelve years ; but when their Lordships come to con-
sider the present law of limitations, they find that that is not
correct. It would have been correct under the old law, under
which the suit must have been brought within twelve years from
the time of the cause of action ; but under the present law it may
be brought within twelve years from the time when the possession
of the Defendant, or of some person through whom he claims^
became adverse to the Plaintiff. His possession since 1863 was
not twelve years' possession ; but it is contended that he was justi-
fied in adding or tacking to his possession the possession of the
Collector from 1861. Their Lordships must assume that the
Collector properly took possession for the purpose of protecting
the Government revenue. It was the duty of the Collector, whilst
in possession under the attachment, to collect the rents from the
ryots, and having paid the Government revenue and the expenses
of collection, to pay over the surplus to the real owner. If
the Defendant was the real owner the surplus belonged to him;
but if, on the other hand, the infants were the right owners, then
the surplus belonged to them. The Plaintiff was not bound by
the decision of the arbitrators, for his bonds were prior to the
submission to arbitration. The Collector, by paying over the
money to Karan Singh, did not give Kar(m Singh a title.
It appears now, as between the Plaintiff and the Defendant^
that the infants were entitled to the property, because no evidence
whatever has been given to shew that the custom of the family
set up by the Defendant, namely, that the son of a daughter could
not inherit, ever existed. According to the ordinary Hindu law
the infants were entitled to inherit. Therefore, althoagh the
VOL. IX.] INDIAN APPEALS. 103
Collector gave up possession of the estate and paid oyer the surplus J. 0.
proceeds to Karan Singh^ that did not shew that he was holding 1882
for Karcm Singh. The Defendant does not claim through the rao Kaban
Collector, and he cannot add to his possession from the year 1863 ®^J*°
the possession of the Collector from 1861 to 1863. Baja Bakab
At.t Khan.
Under these circumstances their Lordships think that the
majority of the Judges of the High Court came to a correct
conclusion that this suit was not barred by limitation , and con-
sequently that the Plaintiff is entitled to recover.
Their Lordships will therefore humbly advise Her Majesty to
dismiss the appeal, and to aflSrm the decision of the High Court.
The Appellant must pay the costs of the appeal.
Solicitor for Appellant: T.L. Wibon.
Solicitors for Bespondent : Pritehard & Sans.
I 2
104 INDIAN APPEALS. [LB.
J. c.» KAJAH NILMONI SINGH (Defendant) . Appellant;
1882 ^^j,
^*-2.7,8; BAKKANATH SINGH (Plaintiff), and \
March 10. ^ ^'
— SECEETARY OF STATE FOR INDIA I Respondents.
(Defendant)
ON APPEAL FROM THE HIGH COURT AT CALCUTTA
QhatwdLi Tenures^JReg. XXIX, qf 1814--Jf(xfo of Descent—Aaseta hy Descmt
in the Hands of a Son.
The lands in suit being lands the tenure of which is analogous to a
ghatwali tenure of the nature described in preamble to Reg. XXIX. of
1814, had been held by the Plaintiffs father during his lifetime, and
had at his death descended to the Plaintiff as his son and heir, the Plaintiff
having been moreover appointed thereto by the Gbvemment.
ffeldy that they were not liable to be seized in execution of a decree
against the father as assets by descent in the hands of the Plaintiff, his
son.
Such tenures are not resumable by the zemindar or by the Qovemment.
They are not transferable, nor saleable in execution of a decree, nor divisible.
Though hereditary they are not governed by the ordinary rules of inherit-
ance, under the Hindu or Mahomedan law, and are subject to the condition
of the Government's approval of the heir.
Rajah Lelanund Sing v. Qovemment of Bengal (1) approved.
Appeal from a decree of the High Court (June 9, 1879),
setting aside under the 15th section of its letters patent a decree
of the High Court dated April 21, 1877, and restoring a decree
of the Judge of Bti/rdwim (May 25, 1875), which set aside an
execution sale of the lands in suit dated August 10, 1874, to the
1 Appellant, and confirmed the Respondent BdkrancUh Singh in
possession^
The object of the suit, which was brought on the 11th of Sep-
tember^ 1874, was to get rid of the effect of a sale to the Appellant
in execution of a decree which he had obtained against the
* Present : — Lobd Blackburn, Sib Babnes Peacock, Sib Bobebt P. Collieb,
Sib Richabd Couch, and Sib Abthub Hobhouse.
(1) 6 Moore's Ind. Ap. Ca. 101.
VOL. IX.] INDIAN APPEALS. 105
Plaintiffy Bdkranaih Singh's father, of a jaghire tenure wbioh had j. o.
been held by the father in his lifetime and after his death by i882
Bakranath 8ing^ and to have Bahra/ruUh Sing maintained in bajTh
possession of the said jaghire as against the Appellant, the Bajah ^i^moni
of PcusheU. The Plaintiflf's contention was that the Government v.
was the proprietor of the tenure, and that the Plaintifif held it, not gmoH
as heir to his father but as appointee of the Government, on con-
dition of performing police service, and that it could not therefore
be sold in execution of a decree obtained against the last holder.
The Government supported the PlaintifiTs claim on the ground
that as previous decisions had established that the jaghire in suit
was held " as police service lands in lieu of wages, subject to the
discharge by the jaghiredar of police duties," and as the Appellant
had caused them to be sold ** without any specification that they
were service lands," he could acquire no title by the purchase.
In appeal the Government admitted that the tenure was here-
ditary in the absence of some special objection to the person
entitled to succeed.
The Appellant contended by his written statement (inter alia)
that the lands in suit were part of his zemindary held at variable
rents and subject to the obligation of rendering certain services
to the zemindar, and that the interest of the Plaintiff was liable
to sale in execution and in satisfaction of the debts of his father,
and had been so sold.
The proceedings in the suit and the issues are set out in the
judgment of their Lordships.
The question decided was whether the land in suit was liable to
be seized in execution of a decree against the father as assets bv
descent in the hands of the Plaintiff, his son.
The Judge decreed that the execution sale be annulled, and
declared the Plaintiff's right to continue in occupation of the
land in suit as the service-tenant of Government and as the rent*
paying tenant of the Appellant, the Eajah pf Pachete,
The High Court {MarJcby and Mitter, JJ.), in accordance with
the opinion of the Senior Judge (Hitter, J., dissenting), reversed
this decision and dismissed the suit.
In appeal under the 15th clause of the letters patent, the High
Court (L. S. Jackson, C. J., Ainslie and White, J J.) reversed the
106 INDIAN APPEALS. [JLB.
J. a decision of Marhby, J., and confirmed the decree of the First
1882 Court.
Bajah ^^3 material part of the jndgment of L. B. Jaehson, C. J., was
^^^ asfoUows:-
Bakbanath ^ ^^^ Bajah it appears brought a suit against the father to recoyer
Sd^h. possession of some lands quite unconnected with the jaghire. He
got a decree for possession, and costs amounting to B8.72y and it
was in execution for these costs that the proceedings took place
which have given rise to the present suit.
** The decree being against Beer Sing, and Beer 8mg having
died before execution fully had, sect. 210 Act VIII. of 1859
authorized application to execute against his legal representative,
and such execution would be permitted in the manner prescribed
by sect. 203. That section permitted attachment and sale of
' property of the deceased person,' and it seems to me that the
principal question which we have to consider is, whether mouzahs
Dhekia and others were property of the deceased, which had come
into the Plaintiff's possession. The jaghire in question was not
enjoyed by Beer Sing without conditions, nor was it a simple
inheritance. The holder of it was bound to perform certain
duties of a public nature. Mr. Justice MarKby observes that the
character of these services was * exceedingly indefinite,' but that
is precisely what might have been expected. It was not the
practice of the country and of those times to define exactly the
nature of services to be rendered in consideration of a grant.
Both parties, grantor and grantee, designedly left it vague and
elastic. The grantor trusted that superior power would make the
conditions capable of extension in any direction required, and the
grantee relied on the indolence or negligence of his superior to
make the compliance with these conditions in general easy. The
vagueness of the service required, therefore, is not to be taken as
denoting insignificance.
**The duties, theu, were to be performed, and performed as the
condition of holding the jaghire, which the Government had
endowed by setting aside a third of the profits of the land, and
no one could perform the duties unless he were appointed or
approved.
''Mr. Justice MarJcby admits that he did not perform them as
yOL. IX.] INDIAN APPEALS. 107
appointee of the zemindar, and it seems to me impossible to J.O.
escape the conclnsion at which Mr. Justice MUter has arrived, 1882
namely, that the ultimate right of appointment, as of dismissal, bajaa
rested with the Grovemment In connection with this part of the ^^'^^^
subject, as we seem to be in some danger of neglecting or for- «•
getting the ancient law of the country, I think it well to fortify Sinqh.
myself by the authority of the eminent author of the * Analysis of
Begulations,' Mr. /. H. Ecmrington.
** In the judgment of the Division Bench, on which Mr. Justice
Marlcby relies, I find the following passage, which I assume to be
in accordance with the evidence in the case: — 'On examining
the figures given in this statement, it appears that no difference
whatever was made between what are called jaghire villages and the
other villages of the estate, while no right is claimed for the
Government, except the right to exact a certain share of the pro-
duce as land revenue.' The conclusion therefore seems unavoid-
able, that Government, after the decennial settlement, retained
no interest in the land except the right to receive rents from it
as &om all other lands not specially exempted. The fact that the
Government officers encroached upon the rights of the rajahs by
habitually treating these lands as if they belonged to the class of
digwari jaghires, is no more evidence of their right than is the
document set out by the Bespondent proof that the Govern-
ment officers had a right to compel the jaghiredars of mouzah
Dhdda to furnish rations for their camp, though apparently they
did so.
** In the present case Mr. Justice Bomesh Chunder Hitter gives
it as the result of an examination of the settlement record, that
the Government had set aside, as the jaghiredars' emolument, one-
third of the assets, which, accordingly, were not included in the
jumma, which was the basis of settlement with the zemindar.
" Now let us turn to Mr. Ha/irrington (3 Anal 509). After men-
tioning Eeg.. XXIX. of 1814 he goes on: — * Tenures of this
description were mentioned generally in a note to the 2nd volume
of this analysis, as held at a low rent by ghatwals or guards of
passes. They exist to a considerable extent in all the hilly dis-
tricts on the western frontier of Bengal, and appear for the most
part to have originated in assignment of lands for the protection
108 INDIAN APPEALS. [L. B.
J. G. of the ghats and villages near the hills. . There is^ howeyer, a
1882 material difference in the tenures of ghatwals. Those of Surhut
Rajah ^^^ DeogwTy in the district of Birlhoom, to whom the provisions
NiLMONi ^f jj^g^ XXIX, of 1814 immediately relate, have a defined and
V- permanent interest in the lands which compose their respective
Sakrak^ath
SiNQH. mehals, and which consist of entire villages or more extensive
tracts of lands : whereas the sirdar and inferior ghatwals in the
contiguous zemindary of Biahenpore have small and specific por-
tions of land in different villages assigned for the maintenance of
themselves and of the paiks and chowkidars acting under them,
of a nature analogous to the chakran assignments of land to
village watchmen in other districts. The ghatwali tenure, how-
ever, as ascertained from the result of inquiries made by the
magistrate of zillabs Burd/wan, Birhhaom, and the jungle mehals,
and communicated to the Court of Nizamut Adawlut in the year
1816, differs essentially from the common chakran in two respects,
first that beiug expressly granted for purposes of police at a low
assessment, which has been allowed for in adjusting the revenue
payable by the landholders to Government at the formation of the
permanent settlement, the land is not liable to resumption nor the
assessment to be raised beyond the established rate at the discre-
tion of the landholders ; secondly, that although the grant is not
expressly hereditary, and the ghatwal is removable from his office
and the lands attached to it for misconduct, it is the general usage
on the death of a ghatwal who has faithfully executed the trust
committed to him to appoint his son, if competent, or some other
fit person in his family to succeed to the office.'
** He proceeds : — 'The above discrimination between the ghatwali
tenure, which being an appropriation of land at a low jumma for
a |K)lice establishment, may be considered within the 4th clause
of sect. 3, Beg. I of 1793, and the common chakran assign-
ments in lieu of wages to zemindary servants which have been
annexed to the malgoozari lands, and declared responsible for
the public assessment by sect. 41, Beg. VIII. of 1793, is taken
verbatim from a letter written by order of the Nizamut Adawlat
to the Calcutta Court of Circuit on the 30th of October, 1816. It
is probable that some specific provisions may hereafter be enacted
for defining more exactly the rights of the ghatwals referred to.
VOL. IX.] INDIAN APPEALS. 109
At present, however, those of zillah Btrbhoom only are mcluded j. 0.
in the enactments of Beg. XXIX. of 1814.' 1882
** The terms of Reg. I. of 1793, sect. 8, clause 4, are as follows : — bajah
" * The jumma of those zemindars, independent talookdars and ^g^^^
other actual proprietors of land which is declared fixed in the v.
Bakbanath
foregoing articles, is to be considered entirely unconnected with sinoh.
and exclusive of any allowances which have been made to them
in the adjustment of their jumma for keeping up thannahs or
police establishments, and also of the produce of any lands which
they may have been permitted to appropriate for the same pur-
pose; and the Governor in Council reserves to himself the option
of resuming the whole or part of such allowances or produce of
such lands according as he may think proper, in consequence of
his having exonerated the proprietors of land from the charge
of keeping the peace, and appointed officers on the part of the
Government to superintend the police of the country. The
Governor-General in Council, however, declares that the allow-
ances or produce of lands which may be resumed will be appro-
priated to no other purpose but that of defraying the expense of
the police, and that instructions will be sent to the Collectors not
to add such allowances or the produce of such lands to the jumma
of the proprietors of land, but to collect the amount from them
separately.'
'^ It seems to me, as it evidently did to Mr. Harrington^ that the
reservation is one that would be within the meaning of this clause ;
and, therefore, it clearly cannot be said in this case that the
Government had no interest reserved, although it had bound
itself to hold the reserved allowance applicable to certain pur-
poses only, and it seems to follow most plainly that the reserved
one-third is held by the jaghiredar directly from the Government,
as it forms no part of the zemindar's jumma.
'^ But, as I have already said, it appears to me needless, for the
purpose of the present appeal, to determine with whom the ap-
pointment lay. What is material is this, that the incoming
jaghiredar took the land subject to either appointment or approval,
and with an attached burthen of public duty. These two re-
strictions appear to me conclusively to shew that the Plaintiff
did not hold these mouzahs as * property of the deceased judg-
110 INDIAN APPEALS. [L. B.
J. 0. ment debtor which had come into his possession/ bat that he held
1882 them as a quasi public servant on precisely the same tenure as
•^^^ his father had held them, and that the father's interest was strictly
NiLMOMi limited to his own life and performance of the functions. How-
V, ever slight the restrictions on succession, and in whosesoeyer
^1^^™ hands they rested, they appear to me sufficient to deprive the
jaghire of the character of simply heritable property."
DoynOy for the Appellant, contended that the Appellant had a
right to have the lands sold in execution of his decree against
the Plaintiff's father. They were included in his permanently
settled zemindary of Pcieheie. The services, which were private
services, as well as the rent belonged to him. The Plaintiff's
tenure had been admitted to be hereditary, and to have come to
him by descent from his father, the judgment-debtor. The
Bespondents have not shewn that at the decennial or permanent
settlements the Gk>vemment retained any right of dispossession
over this tenure, or of interference with its hereditary descent, or
with the ordinary rights of the zemindars. Nor have they given
sufficient evidence to prove that the Government had acquired or
exercised any legal right to require police services from the
holders of the tenure. Such right, if it existed, would not
necessarily take away from the tenure its liability for the debts
of the last holder.
The jaghiredars, to which class of tenants the Plaintiff claimed
to belong, were one of the quasi-military classes, holding portions
of the lands of Pachete, who were liable to be called on to repel
invasion, arrest thieves, and maiatain order. They differ entirely
from the class called digwars, who were rent-free tenants, ap-
pointed by and subject to the magistrates and free of all obliga-
tions to the zemindar. The jaghiredars, as alleged by the
Bespondents, paid to the zemindar or to the Government prior
to the permanent settlement two-thirds of the profits or fair
rental of their lands, and retained for themselves the other third.
They were liable to be called upon for aid by the digwars, at the
Bajah's cost.
In 1771 it appears that Mr. HigginsoUy who was civil and
military "supervisor" of the district prior to the permanent
VOL. IX.] INDIAN APPEALS. Ill
settlement of Paohete in 1789, gaye to the jaghiiedars leases at J. 0.
two-thirds of the ordinary rental. None of these leases have 1882
been prodaced. It does not appear whether the remission of one- bajah
third rent was in consideration of ancient tennre or of services. ^S^^^
It does not appear whether the settlement of the Paohete zemin- «•
SlAIEBANATH
dary was Tillage by village^ or in lamp for the whole estate. It Simgw.
however included the JPlaintiflTs jaghire. Bat it was presamed
against the Appellant that the Gk)vemment retained at the time
of the settlement in respect of the one-third rent remitted a right
to police services from the jaghiredar and a right to dismiss and
appoint him. There is no foundation for snch assumption, and
no evidence given in support of such a contention. With regard
to the history of this raj and of the dealings of the Government
with it, and with regard to the rights of landholders, reference was
made to the 5th report of the Select Committee, p. 395 ; Beg. I.
of 1793, sects. 2, 8 ; Harrington's Analysis, vol. iii. p. 237. The
&ct that the police responsibility was taken away from the zemin-
dars in 1792 shews that prior thereto it rested upon them. The
police jaghiredars were then their subordinates, but in 1792 were
discharged from police duties. The relationship, however, remained
to their own local chief. Beference was made to Baja Lelanv/nd
8mgh v. Oovemment of Bengal (1) ; Beg. VIII. of 1793, sects. 36,
41, 67, sub-8. 4 ; Beg. XXII. of 1793, preamble and section 1 ;
Harrington's Analysis, vol. iii. p. 239, 241 ; Beg. VIII. of 1814,
XX. of 1817. The Government have no right with regard to lands
of the nature of these jaghires. A present was made to the
zemindar of the one-third rent. Beference was then made to Bajah
LeUmwnd Sing Bahadoor v. Thakoor Mimoonnyim Singh (2);
Joyhishen Mookerjee v. Collector of East Bvnrdwan (3), with regard
to the incidents of a tenure where there were services of a public
character : Bajah Nilmoni Singh v. Balcranath Singh (4) ; Binode
Bam Sein v. Deputy Commissioner of the Sonthal Districts (5).
Nothing has been shewn to have occurred to render inalienable
a tenure which is admittedly hereditary, and which in its earlier
history was alienable. Its position before the decennial settle-
(1) 6 Moore's Ind. Ap. Ca. 101. (3) 10 Moore's Ind. Ap. Ca. 16.
(2) Law Eep. Supp. Vol. p. 181. (4) 10 Suth. W. R. 255.
(5) 7 Suth. W. B. 178.
112 INDIAN APPEALa [L. B.
J. a ment was that it was granted out of this zemindary by a prede-
1S82 cessor of the Bajah in consideration of pnblio services to the
j|2^ zemindar. The jaghiredar was not a servant of the State bat of
NiLMONi ii^Q zemindar ; and at the permanent settlement this was recog-
DINGS
9. nised ; and it rests upon the other sicje to shew that the Oovera-
SiNOH. ment was entitled to the services claimed. As to its hereditary
""■^ tenure rendering it alienable, see Eeg. XXXVIL of 1793, sect. 15,
and a decision thereon : Biihul BvU v. LdUa Baj Kishore (1).
Oraham, Q.C., and Woodroffe, for the Bespondents, contended
that the execution sale did not pass any title to the lands in suit
to the Appellant. Neither the lands nor BakranatVs tenure
thereof, whilst in his possession as jaghiredar under the Grovem-
ment, was liable to be sold in execution of a decree against his
deceased father. The tenure was a public service tenure, Grovem-
ment and not the Appellant being entitled to the 8ervice& No
one could in law acquire any right or title to the lands in suit so
as to oust Bakrcmatht unless upon a valid appointment or approval
of such person by Government as jaghiredar thereof instead of
the Eespondent. Originally this zemindary was in Birlhoom, and
governed by regulations applicable to Birlhoom ; being transferred
from the jurisdiction of the magistrate thereof by Beg. XYIIL
of 1805. This tenure is one of the semi-military tenures
analogous to if not identical with those described as ghatwali
in Eeg. XXIX. of 1814. Their origin is to be found in a com-
pact between the sovereign power and the grantee, but when that
took place is not clear except that these tenures did not owe
their existence to any of the Bajahs of Pcichete, but date back to a
time antecedent to the grant of the dewanny in 1765. It was in
1771 that these tenures were brought under British rule. The
jaghiredar^ then received their leases from the supervisor of
Birlhoom at a jumma equivalent to two-thirds of their mal-
goozari, the remaining third being retained by them as remune-
ration for the services which were the condition of their tenure.
The permanent settlement could not alter the nature of the
tenure. Nor did any of the Begulations confer upon it an alien-
able character, or render it resumable by either the Government
(1) 2 H. 0. R. (N. W.) (Agra High Court) p. 284.
NiLMOKI
6INOH
V.
Bakbanath
VOL. IX.] INDIAN APPEALS. 113
or the zemindar. Beferenoe was made to HaaringUm'^ Analysis, J.O.
vol. iii p. 413 ; Bajah Nilmoni Singh \. OovemmerU and Others (1) ; 1882
Binode Bam 8ein v. Deputy Oommimoner of the Santhai Dia* bajah
triets (2) ; Bajah Nilmoni Singh ▼. Bahranath Singh (3) ; HurlaJ
Sing ▼. Joraumn Singh (4) : Bajah Ldanund Singh v. OovemmeiU
of Bengal (5) ; Kocideep Narain Singh ▼. The Oovemment (6) ; '"^raoa!
Beg. L of 1793, preamble; Beg. XXXVH. of 1793; Beg. II. —
of 1819 ; Sartuiehwnder Dey ▼• Bhagut BhanOchmdir Singh (7);
Fories y. Meer Mahomed Tujuee (8). With regard to the admis-
sion made as to the hereditary character of this tenure, that goes
no farther than what is described in Harrington^a Analysis,
vol. iii. p. 509, in commenting on the Birbhoom ghatwals. It
means that it is usual to appoint the son unless there is some-
thing to disqualify him.
Dogne replied.
The judgment of their Lordships was delivered by 1882
Sir Babnes Peacock :— ito^io.
This is an appeal from a decree of the High Court at CaJcutfa.
The Appellant is Bajah Nilmoni Sing, the rajah and zemindar of
Paehete. He was the Defendant in the suit out» of which the
appeal arises, and which was brought against him by the Be-
spondent, Bahranath Sing, for confirmation of possession of a jaghire
mehal, consisting of mouzah Dhekia and other mouzahs specified
in the schedule to the plaint, by establishing his title to the same
and reversing a summary order of the 10th of August, 1874.
It appears that the Appellant^ having obtained a decree against
Beer Sing, the father of the Bespondent, for the sum of Bs.72
odd, awarded to him for costs, had caused the mouzahs in question
to be attached in execution of the decree, and that on the 11th of
June, 1874, a Proclamation was issued for the sale of the right,
title, and interest of the judgment-debtor therein on the 10th of
August in that year. In the Proclamation the Plaintiff was
(1) 6 Suth. W. R. 121. (6) 6 Moore's Ind. Ap. Ca. 101.
(2) 7 Suth. W. R. 178. (6) 14 Moore's Ind. Ap. Ca. 247.
(3) 10 Suth. W. R. 265. (7) S. D. A. (1853), p. 900.
(4) 6 SeL Rep. 169. (8) 13 Moore's Ind. Ap. Ca. 438.
114 INDIAN APPEALS. [h. E.
j.O. described enoneonsly as the jadgment-debtor, whereas he was
1882 only the heir-at-law against whom the decree had been reviyed
^][^g aflber the death of his father. Beer Sing.
NiLMONi On the day appointed for the sale^ the Bespondent presented
V, a petition stating that he was not in possession of any property of
^Sot^™ the deceased judgment-debtor, and that the Government jaghire
mehal could not be sold on account of the debts of the deceased ;
that since the death of his father, the late Beer Smg^hd had been
appointed jaghiredar, and was in possession of the mouzahs lEittached
as ghatwal appointed on the part of Government ; that the decree-
holder, without describing the mouzahs to be jaghire, and without
stating the nature of his father's interest therein, bad secretly
done the acts relating to the execution of his decree ; and that
the Petitioner, having received information that the jaghire mehals
would be sold on the 10th of Aughst, had presented the petition
stating his objections. Upon that petition the summary order
referred to in the plaint was passed by the Moonsiff: — ''This
petition of claim has been filed to-day just before the sale ; the
claim cannot be allowed at such a time. It is ordered that the
petition of claim be rejected." The sale accordingly took place,
and the present Appellant became the purchaser.
The suit out of which this appeal arises was originally insti-
tuted in the Court of the Moonsiff of ChowJd Chmgajalffhati, in
the district of West Burdwomy and the Secretary of State for
India was made a pro forma defendant. The suit was subse-
quently removed into the Court of the Judge of West Bv/rdwan.
The Government put in a written statement, in which they
alleged that the lands were police-service lands, and that they
had been held by jaghiredars in lieu of wages for the performance
of police duties from before the permanent settlement, as had
been formerly determined in the presence of the Bajah Defendant
by the Deputy Commissioner of Manbhoom^ in Case No. 105 of
1863, and the several Courts of Appeal ; that the lands not being
transferable, and the Eajah Defendant having caused them to be
sold without any specification that they were service lands, and
having himself purchased them at the sale, could acquire no title
by the purchase.
The Bajah Defendant, in his written stateuient, contended,
VOL. IX.] INDIAN APPEALS. 115
amongst other thmgs, that the moossahs were not a jaghire consti- j. o.
tuting Goyemment property, bat part of his permanently settled i882
mal estates, and that they had been granted by his father to the ^^jIh
FhuntifTs £ftther as a service tenure. Nilmoni
SnraH
Farther, he made the following statement : — v.
Baxsakath
"Third, *Tarraf Dhehia/ in which these, mouzahs are com- "^"^
prised, was divided into two (equal) parts, one of which is Plain-
tiflTs ancestral property, and the other was enjoyed by Dhiirmo
Bos Ohuckerlutttf as a service tenure in the manner described
above. Subsequently, the half share of turraf Dhekia, held by
the said Vhurmo Das, having been sold by auction for arrears of
rent, his grandson, Udoy Ohuckerhuttyy brought a civil suit to set
aside the sale, alleging the share to be Government jagir pro-
perty ; but, in the judgment of the High Court, the suit was
dismissed, on declaration that the disputed estates appertained to
the mal land, and in rejection of the allegation as to the Govern-
ment jagir lien, as will appear from the decision. Therefore the
Plaintiff's suit is evidently false."
The Plaintiff himself was examined, and stated that his pro-
fession was that of a ghatwali jaghiredari, that he was jaghiredar of
ghat Dhekia, that he was appointed in 1273 by the magistrate
of Bancoara, and served the Grovemment and carried out the
orders issued by the thannah ; that the jaghire lands did not
remain in his possession anless he performed the service; that
the person who is appointed in the place of a dismissed ghatwal
holds possession of the land ; that after his appointment the sub-
inspector put him into possession: and that he never did any
service for the Bajah, and did not receive any permission from the
Bajah on his appointment.
Amongst other issues, the following were raised : —
2nd. Whether the status or condition of the lands as Govern-
ment service, i.e. ghatwali or jaghire, had been decided in a former
suit by a Court of competent jurisdiction.
3rd. Whether the land in suit was held by the Plaintiff as
service land, ue, ghatwali or jaghire under Government, or as service
land under the Defendant, Bajah Nilmoni Sing.
4th. Whether the land was land on account of which rent was
116 INDIAN APPEALS. [L. E.
J. O. paid to the Bajah by the Bajah's appointee, and whether this
1882 rendered the tenare a saleable one.
BajIh ^^ Whether the PlaintifiTs interest in the land was snch an
l^LMOTw interest as admitted of being brought to sale in satisfaction of a
V. decree dne from the Plaintiff's predecessor to the Bajah,
Singh. The case was tried by the Officiating Jadge of West BwrdAJixm.
""■^ On the trial the Government accepted the fall burthen of the
suit, and supported the Plaintiff. It still holds the same position,
haying been made a Bespondent, and having appeared by counsel
before their Lordships and opposed the appeaL
The only substantial question to be decided is, whether the
mouzahs in question, which had been held by the Plaintiff's
father during his lifetime, and which at his death descended to
the Plaintiff, as his heir, and to which the Plaintiff was appointed
by Government, were liable to be seized in execution of a decree
against the father as assets by descent in the hands of the Plaintiff,
his son.
Neither the origin of the jaghire nor the precise time at which it
was created is known, but it appears that as far back as 1771,
corresponding with 1178 B.S., the villages of which it was com-
posed were held by jaghiredars who paid to Government two-thirds
of the annual value thereof as revenue, and retained the other
one-third as remuneration for the services under which the jaghire
was held. The villages included in the jaghire were permanently
settled as part of the zemindary of Pachete, of which the De-
fendant Appellant is the zemindar. In fixing the Grovernment
revenue at the time of the decennial settlement, the lands in^
eluded in the jaghire were assessed at the two-thirds then payable
by the jaghiredar to the Government, and the one-third retained
by the jaghiredar in lieu of services formed no part of the assets
of the zemindary in respect of which the Government revenue was
fixed.
Jaghiredars were successively appointed or approved by Govern-
ment up to the time of Gooroo Chum Mookerjee, who was appointed
in 1816 in the place of Boop Sing, who was dismissed for mis-
conduct.
In February, 1817, Gooroo Churn petitioned the magistrate for
leave to associate Dhurmo Doss ChuckerluUy with himself as head-
VOL. IX] INDIAN APPEALS. 117
man; this was sanctioned, and they divided the jaghire and the J. 0.
duties. On the death of Oooroo CfhwrUy his son applied to be 1882
installed as his successor, but Boop Sing haying applied to be bajIh
reinstated, his application was granted. In 1834 Boop Sing ^^^^
attempted to oust Dhurmo Does OhuoTcerlmtty^ but this was not t-
allowed, and the jaghire has ever since remained divided. Singh.
It was contended, on behalf of the Appellant, that, as the lands
were included in bis permanently settled zemindary, the services
as well as the rent belonged to him; that the services were
private services, and that he had a right to cause the lands to be
sold in execution of his decree.
In support of his case, the decision of the High Court referred
to in the Bajah's written statement was cited. It is set out in the
appendix to the record, and was in a suit brought against the
Bajah by TJdoy Chui^herbutty, who had been appointed successor of
Bhwrmo Doss Chu^Tcerbutty, to obtain possession of the mouzahs
which constituted that portion of the jaghire which upon the division
of it had been allotted to Dhv/rmo Doss, whose right and interest
had been sold by the Bajah in execution of a decree for rent
obtained by the Eajah against him. The Government was a party
to that suit, and supported the claim of the Plaintiff therein.
The first Court held that the Plaintiff bad a right to recover
possession of the jaghire lands, but that decision was reversed on
appeal by the High Court. In speaking of that case, the officiating
Judge in the present case remarked: — **It is not revelant as
evidence in this case, but is useful as a precedent or in argument.
The Court found in that case that the services exacted by Govern-
ment were encroachments on the Eajah's rights, and that the
duties, i,e.y service, attached to the holding of the land, and not
the holding of the land to the appointment to perform the duties.
With respect to the lands in dispute, I have to remark that the
Bajah's evidence in this case, as well as that of the Government,
shews that the opposite is true in this case," Then, after referring
to the evidence, he says : — " I therefore conclude that the perform-
ance of the services is the chief title to the jaghire lands, and that
no man has any right to hold these lands except on a title arising
out of a valid appointment to discharge the services ; to adapt the
words of the High Court's judgment," or rather the converse of it,
Vol. IX. K
118 INDIAN APPEALS. [L. B.
J. 0. ** to the facts of the case, * the holding of the lands attaches to the
1882 duties, and not the performance of the duties to the holding of
r2jIh *h© land.' *' On the third issue he found that the land in suit was
^^^^^ land held by the Plaintiff, Bdkranath Sing, as service under
«• Government, i.e., not ghatwali but jaghire land, and was not held as
SnfOH. service under the Bajah. On the 4th issue he found that the land
""" in suit was not land on account of which rent was paid to the
Eajah by the Bajah's appointees ; and on the 6th that the FlaintifiTs
interest in the lands was not such as admitted of its being brought
absolutely and without special conditions to sale in satisfaction of
a decree due from the Plaintiff, or his predecessor, to the Bajah,
but that the interest was saleable for the purpose aforesaid, pro-
vided it be sold subject to the performance of the jaghire services
by the purchaser, after he has obtained appointment to the duties
at the hands of the magistrate or his representative police autho-
rities, and installation by the same authorities. He accordingly
annulled the sale of the lands under the execation ; set aside the
summary order of the Moonsiff, and declared that the Plaintiff
had a right to continue in possession as the service tenant of the
Government, and as the rent-paying tenant to the Plaintiff. The
case was appealed to the High Court. The appeal was heard by
a Division Bench, consisting of Mr. Justice Markhy and Mr.
Justice Bomesh Chunder Hitter, who differed in opinion. The
decree of the officiating Judge was reversed, and the suit dis-
missed, in accordance with the opinion of the senior Judge, Mr.
Justice MarJcbffy Mr. Justice Bomesh Chv/nder Mitter dissenting,
and holding that the decree ought to be affirmed.
Mr. Justice Markby agreed with the officiating Judge that the
Bajah had not shewn that the Plaintiff held as his appointee ; he
relied upon the fact that the lands were part of the revenue-paying
lands of the Bajah, and also upon an admission of the Advocate
General, on behalf of the Government, that the tenure was m
hereditary one, unless there was some special objection to the
person entitled to succeed. He also relied very strongly upon the
decision in Udoy Chund Chuck&rbulty^s case, already referred to,
and added, *^ An appeal against this decision was lodged in the
Privy Council by the Government, but it has not been prosecuted;
and it is admitted that there is no intention to prosecute it." He
VOL, IX.] INDIAN APPEALS. 119
stated that he thought it was his plain duty to follow the former j. c.
decision, unless he had the clearest possible reasons for differing i882
from it ; and that so far from differing from the decision, having kajj^
considered the evidence and heard the arguments, he entirely Nilmoni
concurred in it. He then proceeded to discuss the question «.
whether the fact that the holders of the lands were liable to per- {stngh.
form some services of an exceedingly indefinite character, but ""*"
something of a police kind, to Grovernment took away from this
tenure the character of alienability, which it would otherwise
possess, and expressed his opinion that it did not.
An appeal was preferred under sect. 15 of the letters patent of
the High Court from the decree of the Division Bench to the
High Court, and was heard by Mr. LotUs 8. Jackson, then
officiating Chief Justice, Mr. Justice Aimliey and Mr. . Justice
Sewell White, when the decree of the Division Bench was reversed,
and the decree of the first Court affirmed by a majority, consisting
of the acting Chief Justice and Mr. Justice Seweil White, against
the opinion of Mr. Justice Aindie. Their Lordships concur gene-
rally in the view taken by Mr, Justice Bomesh Chunder Hitter
and the acting Chief Justice, and are of opinion that the decree
now under appeal ought to be affirmed. The judgment of Mr.
Justice White was founded merely upon the form of the Proclama-
tion; he concurred with the first Court in holding that as the
Proclamation did not describe the lands as held under a service
tenure, the sale to the Bajah, under the execution, passed no title
to the property, and he abstained from expressing an opinion upon
the question as to which Mr. Justice MarJcby and Mr. Justice
Bomesh Chunder Hitter differed, viz., whether the interest of the
Plaintiff's deceased father in the lands was such that when they
came into the possession of the Plaintiff they were assets of the
father, and as such liable to be attached and sold for his debts.
According to the report of Lata Kanji, tehsildar of Paehete,
made on the 18th of July, 1799, it appears that there were in
ChaJcla Pachete, in addition to the digwars, three other classes of
guards, whom he describes as jaghir^dars, ghatwals, and chowkidars.
He says of the first, they hold their mouzahs in jaghire, and when-
ever the digwars require assistance in arresting thieves or rioters,
the jaghiredars assist them with their men. Of the second, that is
K 2
120 INDIAN APPEALS. CL. B.
J. a the ghatwalsy he says the second were posted at the ghats, thirty-
1882 six in number. In twenty-three of these the ghatwals were sub-
Bajah ordinate to the digwars, and were paid by them out of their jaghires;
^Sra^T' thirteen are occupied by the Eajah's own immediate servants paid
«- by him.
Sakbajtath
Singh. It is clear that the jaghiredar in question was not one of the
ghatwals referred to in the report as being sabordinate to and
paid by the digwars out of their jaghires, for they were paid by the
one-third of the malgoozari, which they were allowed to retain as
a compensation for their services.
Mr. Justice Bomesh Chtmder Mitter held that the tenure in
question was analogous to a ghatwali tenure, Mr. Justice Aindie
treated it as one of the ghatwalis to the south of Birbhoom. Their
Lordships entertain no doubt that whether it was a ghatwali or
not the tenure was analogous to a ghatwali tenure of the nature
described in the preamble to Reg, XXIX. of 1814 ; and the Acting
Chief Justice appears to have entertained the same view, by
referring to Mr. HarringUyrCs Analysis of the Eegulations, vol, iii.,
509, where, after mentioning Beg. XXIX. of 1814, he goes oa to
say, tenures of this description were mentioned generally in a note
to the 2nd volume of this Analysis, as held at a low rent by
ghatwals or guards of passes.
The preamble of Reg. XXIX. of 1814 is as follows : — •* Whereas
the lands held by the class of persons denominated ghatwals, in
the district of Birlhoom, form a peculiar tenure to which the provi-
sions of the existing regulations are not expressly applicable, and
whereas every ground exists to believe that according to the
former usages and constitution of the country this class of persons
is entitled to hold their lands generation after generation in
perpetuity, subject nevertheless to a fixed and established rent to
the zemindar of Birbhoom^ and to the performance of certain
duties for the maintenance of the public peace and support of the
police." Paehete was formerly one of the pergunnahs and mehals
of zillah Birbhoom, but by Eeg. XVIIL of 1805 was separated from
the jurisdiction of the magistrate of that zillah, and placed under
the jurisdiction of a distinct ofScer to be denominated Magistrate
of the Jungle Mehals (see sects. 2 and 3 of that Regulation).
Their Lordships consider that the jaghire in question, although not
VOL. IXJ INDIAN APPEALS. 121
falling within the Begulation, was a tenure of the nature of those J. c.
described in the preamble. In the case of Bajah NUmoney Singh i882
V. The Oovemment and Others (1), it having been found by the jujIh
Lower Courts that the lands were held upon a ghatwali tenure^ Nmoni
the High Court upon special appeal held that they were not v,
resumable by the zemindar, upon the ground that the tenure had Binoh.
been forfeited on account of the tenant's refusal to perform them«
The Chief Justice remarked, " If the Government received only
two thirds of the annual value of the lands as rent or revenue,
and allowed the tenant to retain one third on account of services,
the services must have been public and not private. The Govern-
ment would not have allowed any portion of their revenue in con-
sideration of private services to be rendered to the zemindar."
That case was affirmed by Her Majesty in Council on appeal (2).
The permanent settlement of the lands did not alter the nature
of the jaghire or of the tenure upon which the lands were held, nor
could it convert the services which were public into private ser-
yices under the zemindar. The zemindar became entitled only
to the rent or revenue which was previously payable to the
Grovernment and in respect of which he was assessed, and not to
the services in respect of which the one third of the rent or
revenue was allowed to the tenant as compensation for the services.
Those services continued to be due to the Government.
In the very luminous judgment pronounced by Lord Kingsdown
in the case of Bajah Ldanund Sing v. ^Ihe Qovemment of Bengal (3),
the origin and nature of the ghatwali tenures of Birlhoom, and
the effect of the permanent settlement thereon, were fully ex«
plained, and it was there held that lands held under that tenure
were not resumable by Government under Bengal Begulation I. of
1793, s. 8, cl. 4, as lands included in the allowances to zemindars
for thannah or police establishments. In that case it was no
doubt held that it was the province of the Bajah of Khwruchpore
to appoint and dismiss the ghatwals (p. 127), but it was also
stated that ghatwals held their lands in virtue of sunnuds granted
by the zemindar, except some who had received theirs from the
former authorities (p. 123), it was also found that in that case the
lands had been granted by the ancestors of the Bajah (p. 112),
(1) 6 Suth. W. R. 121. (2) 18 Suth. W. R. P.C., 321.
(3) 6 Moore's Ind. Ap. Ca. 101.
J
122 INDIAN APPEALS. [L. B.
J. 0. and it was said that the regalation did not apply to lands which
1882 the zemindars had permitted other persons to hold free from rent,
j^2^ or at a reduced rent, or (referring to the cases in which the sun-
NiLMONi jjujjg j^ad not been granted by the zemindar) to lands which such
V. persons had a right to hold free from rent or at a reduced rent
Baksanat'H
81NGH. The above cases shew that the jaghires of which the lands ia
question formed one, and which were expressly found, in the case
above referred to between the Appellant and Beer Sing the father
of the Plaintiff, and also in the present case, to be analogous to
the ghatwali holdings of Birhhoomy are not resumable by the
zemindar or by the Government.
In the case of Hurlah Singh v. Jorawan Sing (1), cited with
approbation by Lord Kingsdown in 6 Moore, 125, it was held that
the ghatwali tenures were not divisible on the death of a ghatwal,
but descended to the eldest son.
In delivering the judgment in that case, Mr. F, C. Smith said,
** Begulation XXIX. of 1814 says nothing on the subject, the point
Inust therefore be decided with reference to the usual practice,
and the meaning and intent of the term ghatwal. Now the ghat-
wali lands are granted for particular purposes, especially of police,
and to divide them into small portions amongst the heirs of the
ghatwals would be to defeat the very ends for which the grants
were made. I have submitted the question to the Judges of the
Court, and all, with one exception, are of opinion that a mehal of
this nature cannot be divided, but should, on the death of an
incumbent, devolve entirely on the eldest son, or the next
ghatwal."
It was stated by Mr. Z>. C. Smith, one of the Judges consulted
that the chakeran lands of Bengal always go to the eldest son or
to the nearest member of the family most capable of performing
the duties. See also Sutherland's Weekly Rep., special vol., p. 39.
These jaghires, although hereditary, are not governed by the
ordinary rules of inheritance, under the Hindu or Mahomedan
law, and are subject to the condition of the G-overnment's approved
of the heir.
The same principle which precludes a division of a tenure upon
death must also apply to a division by alienation. Their Lord-
ships are of opinion that the tenure is not transferable or saleable
(1) 6 Sel. Rep. 170.
VOL. IX.] INDIAN APPEALS. 123
in execation of a decree, and that it is not one of the tenures J. 0.
rellBrred to by the Benffol Beg. XXXVIL of 1793, s. 15. 1882
In the case of Bcyah Ldammd Sing v. Doorgobutty and Others (1) bajah
it was held that the ghatwalis of Kurruckpore were not capable of ^JjJ^^
alienation by private sale or otherwise, nor liable to sale in «•
execation of decrees except with the consent of the zemindar and Sutgh.
his approval of the purchaser as a substitute for the outgoing
ghatwaL In that case, however, as in the case already cited
from 6 Moore, Ind. Appeals, the ghatwal had been appointed by
the Bajah, and the Bajah, and not the Government as in the present
case, had a right to appoint and dismiss the ghatwal.
In the case of Binode Bam 8ein v. The Deputy Commissioner of
the Sonihal' Pergtmnahs (2) it was held, and in their Lordships
opinion rightly, that the surplus proceeds of a Birhhoom ghatwal
tenure, which had passed by descent from ancestor to heir, were
not liable, in the hands of the heir, for the debts of the ancestor ;
and reference was made to a decision of Mr. Hawkins in the
Sadder Court (3), in which it was held that the lands were not
alienable.
In a case also between the Appellant and the Bespondent
Bdkranath Singh, it was held that the holder of the tenure in
question in this suit is not responsible for the debts of a former
jaghiredar. The Deputy Commissioner in his judgment said, '^ As
jaghiredar, the Defendant has what his father had, a life interest, in
the jaghire. Whether the son will succeed or not is, notwithstand-
ing the tenure is hereditary, uncertain, as he may at any moment
be dismissed from Government employ," rather he should have
said may never be sanctioned as jaghiredar. He proceeds, *' The
jaghire is strictly a life tenure as far as the jaghiredar is personally
concerned, he holds the land in lieu of pay, and a new jaghiredar
receiving the jaghire would not be bound by any arrangement made
by his predecessor. A newly elected jaghiredar would not be held
responsible for debts incurred by the late jaghiredar as such, as
were he to be so he would lose the benefit of his pay. Thus, a
jaghiredar cannot be held responsible for arrears of rent due by a
former jaghiredcor." That decision was upheld on appeal to the
High Court, 10 Suth. W. B. 255. The case is expressly in point, for
(1) Suth. W. R. (1864) p. 249. (2) 7 Suth. W. R. 178.
(3) 2 Sevestre's Reports, 423.
124 INDIAN APPEALS. [L. R.
J. 0. if a successor is not liable for rent of the jaghire due from his pre-
1882 decessor it follows d fortiori that he cannot be liable for an
^2^g ordinary debt. It is unnecessary to decide whether the decision
NiLMONi jg res judicata or not.
V. The above decisions are more than sufficient to outweigh the
Saebanath
Singh. decision in the case of Udoy Chum Chv^ikerbutty to which Mr,
Justice MarJcby attached so much weight, even if that case had
not been decided upon a different finding of facts. Their Lord-
ships, however, are of opinion that the learned Judges took an
erroneous view in that case of the effect of the permanent
settlement.
With reference to the argument upon which Mr. Justice Aindie
so strongly relied as to the difficulty under which the zemindar
would lie for the recovery of his rent if the lands could not be
sold in execution of a decree for rent against his tenant, it is
sufficient to say that the zemindar at the time of the permanent
settlement must have been aware of the nature of the tenure
upon which the lands were held, and that this case does not
involve the necessity of deciding what remedy the zemindar has
for recovering his rent, whether by sequestration of the estate or
by application to the Government to remove the tenant, or by
what other mode. Their Lordships therefore abstain from ex-
pressing any opinion which would be a mere oliter dictum upon
the point.
It is quite clear that if the jaghire were transferable without
the consent of Government, either by descent to an heir, or by
voluntary sale, or sale in execution, or otherwise, there would be
no security that the transferee would be a proper person to dis-
charge the duties in respect of which the lands are held at the
reduced rent. The transferee might be a person of questionable
or even of bad character, as remarked by the Court in Suth.
W. R. (1864), p. 250.
For the above reasons, their Lordships will humbly advise Her
Majesty to affirm the decree of the High Court, from which the
appeal has been preferred, and to dismiss the appeal.
The Appellant must pay the costs of the appeal.
Solicitors for Appellant : Lamhert, Fetch, & Shakespear,
VOL. IX.] INDIAN APPEALS. 125
E VENKATA KANNAKAMMA ROW ) ^
Others J Plaintitps;
EAJAH RAJAGOPALA APPA ,ROW BA-
HADUR, THE COURT OP WARDS, and \ Dependants,
Others ♦ . • . •
ON APPEAL FROM THE HIGH COURT AT MADRAS.
Partition — Mesne Profits of Share — Allowances — Limitation,
In a suit for partition by three out of six sons of a deceased zemindar
against the eldest son (two brothers being parties Defendant), who wrongly
contended that the zemindary was impartible : —
Eeldy that the Plaintiffs should recover their moiety of the zemindary
together with mesne profits accruing thereon for the period of their dispos-
session thereof, such period not to exceed three years next before the com-
mencement of the suit, and the amount of such mesne profits to be subject
to an allowance for all or any portion thereof as might be proved by the
Defendants to have been duly applied for the benefit of the joint family.
Appeal from a decree of the High Court (Jan. 31, 1879)
modifying a decree of the District Judge of Kistna (March 26,
1877) in a suit brought on the 3rd of February, 1873, against
Eajah Narayya, the zemindar in possession, and his second and
third brothers by his three youngest brothers. The main ques-
tion at issue in this suit and also in another suit, Majah VenkcUa
Karasvmha Appa Bow Bahadur v. The Court of Wards (1),
was as to the impartibility of the zemindary of Nuzvid. Both
the above-mentioned Courts held in both suits that the same was
impartible. The last-mentioned suit was decreed by the High
Court in 1874, but that decree was reversed by Her Majesty in
Council in accordance with a judgment of the Privy Council,
dated the 13th of December, 1879 (after the decree of the High
Court in this suit) and reported in Law Eep. 7 Ind. Ap. 38. The
* Present: — Sir Baenes Peacock, Sir Robert P. Collier, Sir Richard
Couch, and Sir Arthur Hobhoube.
J.O.*
1882
Marek 15.
(1) Ind. L. R. 1 Madras, 129.
126 INDIAN APPEALa [L. B.
J. 0. Respondents thereupon conceded that the present appeal must as
1882 regards the main issue share the fate of its predecessor, and that
Bajah the present Appellants were entitled to a decree for partition.
■jsj^^^j^ Some questions, however, remained as to the form of the decree.
Row
j^'^^ Coune, Q.C., and Grady, for the Appellants, contended that
Rajaoopala besides a decree for possession of their moiety they were entitled
Afpa Bow >i ^
Bahadub. to mesne profits in respect thereof from the 28th of October, 1868,
the date of the death t)f their father until they were put in pos-
session. Their right to possession accrued at that date, and inde-
pendently of the claim arising out of wrongful dispossession, they
were entitled as members of a joint family to an account as
against the managing member of his management and dealings
with the joint estate : Ahhay Chand/ra Bat Chowdri v. Pyarimohan
Ouho and another (1).
Mayne, for the Eespondents, minors in charge of the Court of
Wards, contended that the original principal Defendant, their
father, had acted fairly in maintaining the impartibility of the
zemindary, and the Court of Wards had no alternative but to
maintain before the High Court the decree which had been
obtained. The account should, in the absence of fraud, or wast-e,
or vexatious defence, be taken upon the present state of the pro-
perty. Eeference was made to Tarachand v. Reel Bam (2) and
Appovier v. Bama Svhha Aiyan (3).
Covne, Q.C., replied.
The judgment of their Lordships was delivered by
Sib Barnes Peacock : —
It is not now disputed that the zemindary of Nvavid is not
impartible, nor is it disputed that the Plaintiffs Appellants are
entitled to recover one half of that zemindary. The only question
which is now raised is whether they are entitled to recover mesne
profits of that moiety.
Their Lordships are of opinion that they ought to make the
(1) 5 BeDg. L. R. 347. (2) 3 Mad. H. C. B. 177.
(3) 11 Moore's Ind. Ap. Ca. 75.
VOL. IX.] INDIAN APPEALS. 127
same decree now which the first Court ought to have given when J. 0.
the first Defendant, Bajah Narayya Appa Bow, was living. The 18S2
minors, the sons of Bajah Narayya, appealed to the High Court. Bajah
If the first Court had given the proper decree, it would have been x^^miA
that the Plaintiffs should recover from the first Defendant, Bajah ^ow
Narayya, one-half of the zemindary of Nuzvid, together with the Bajah
mesne profits of that one half of the estate. A^Tlia^
Their Lordships therefore think that the decree of the High Bahadub.
Court must be altered ; and they will humbly advise Her Majesty
that the decree of the High Court be reversed so far it dismisses
the claim of the Plaintiffs Appellants to the one half share of the
zemindary of Nuzvid, and that, in lieu thereof, it be declared that
they are entitled to recover from the representatives of the first
Defendant out of his assets one half of the said zemindary, with
mesne profits thereof from the time of the Appellants' disposses-
sion, provided that they shall not recover such mesne profits for a
period exceeding three years next before the commencement of
the suit, subject to an allowance to the Bespondents for all or any
portion of such mesne profits which Bespondents ma.y prove to
have been duly applied for the benefit of the joint family; and
that the case be remitted to the High Court to give effect to
these directions. The Bespondents must pay the costs of the appeal
out of the estate of the first Defendant.
Solicitors for Appellants : Frank Biehardson & Sadler.
Solicitor for the India Office: H. Treasure.
128 INDIAN APPEALS. [L. K.
J.O.* MUTTATAN CHETTIAR Plaintiff;
Mareh 22, 23 : SANGILI VIEA PANDIA OHINNATAMBIAE Defendant.
May 10.
ON APPEAL FROM THE HIGH COURT AT MADRAS.
Mitdkshara Law — Assets hy Descent — Power of Alienation over Estate inherited
from Maternal Grandfather.
Edd, that the interest which the Defendant took by heritage from his
father in an impartible zemindary was liable as assets by descent for the
payment of his father's debts.
Qirdhari Lall v. Kantoo Loll (1) approved and declared applicable to the
Madrons Presidency.
Eeld, further, that a zemindary to which a Hindu succeeds by inheritance
to his maternal grandfather is not his self-acquired property ; but, qusercy
whether he is under the same restrictions as to the alienation or hypotheca-
tion thereof as he would have been if it had descended to him from his father
or paternal grandfather.
Appeal from a decree of the High Court (March 3, 1880).
which varied a decree of the District Court of TinneveUy (Nov. 29,
1876).
The facts of the case were not in dispute, and they, together
with the proceedings in this and a former suit, are stated in the
judgment of their Lordships.
The questions raised in the appeal related to the nature of the
interest which the late zemindar of Sivagiri (the Respondent's
father) possessed in the zemindary which he had inherited under
Mitakshara law from his maternal grandfather ; and to the extent
of the Respondent's liability for his father's debts*
Leithy Q.C., and Mayne, for the Appellant, contended that the
zemindary was not the ancestral property of his father in the
sense of Hindu law (Mitakshara) so as to vest in the Respondent
any interest in the property during his father's lifetime. It
descended to the Respondent's father as heir to his maternal
* Present : — Sib Barnes Peacock, Sib Richabd Couch, and Sib Abthub
HOBHOUSE.
(I) Law Rep. 1 Ind. App. 321.
VOL. IX.] INDIAN APPEALa 129
grandfather. The son accordmgly had not the same interest in j. o.
it; nor was the father under the same restriction as to alienation 1882
as he would have been had the estate descended to him from his muttTtan
father or paternal grandfather. In the latter case the son would Cbbttiab
have had a vested interest and rights co-equal with his father. Sangiu Yiba
But that depends upon his being interested in his grandfather's natambiab.'
estate. In the former case, that is in the case of an estate de-
scending to a father from his maternal grandfather, the son has
no interest in that grandfather's estate. This interest is con-
tingent upon his surviving his father, for a daughter's son's son is
not an heir. Consequently he cannot rely upon blood relation-
ship alone in making title, but must aver that his father, who was
contingent reversionary heir expectant on his mother's death, sur-
vived his mother, and took possession of his maternal grand-
father's estate. Wherever it is necessary for a son to make an
averment of that nature, he has no power to contest his feither's
alienation. His inheritance is one liable to obstroction, that is,
liable to be defeated by something other than his own death. It
has been held that a son cannot prevent alienation by his father
of property which the latter inherited collaterally, and that the
restriction upon the father's alienation only applies to the grand-
father's property : see Baboo Nund Coomar Lall v. Moulvie Razee-
ooddeen Hossein (I) ; Mitakshara, c. 1, s. 5, w. 9, 10, and again
c. 1, sect. 1, vv. 3, 27, 33. The whole of the passages in the
Mitakshara on this subject must be read as referring to a grandson
by male descent: Musmmat Phootbaa Koer v. Loll Juggesmr
Sahoy (2) ; Pitam Singh v. TJjagur Singh (3).
Secondly, the whole zemindary, or at least the Respondent's in-
terest therein which he took by inheritance, was liable as assets by
descent in the hands of the Bespondent as heir of his father for
payment of his father's debts. There is a pious duty on the part
of the son to pay his father's debts, and a legal obligation so to
do out of the estate which he inherits from his father, except as
regards debts contracted for immoral purposes. See Girdharee
Lail V. Kantoo Lall and Others (4). [Sir Richard Couch : — ^In
Eantoo Lalls Case the debt was contracted before the son's birth.]
(1) 10 Beng. L. R. 183, 192. (3) Ind. L. R. 1 Allahabad, 651.
(2) 18 Suth. W. R. 48. (4) Law Rep. 1 Ind. Ap. 321.
130 INDIAN APPEALS. [L. R.
J. 0. The debt was contracted before and the security given after the
1882 son's birth. [Sib Bichabd CJough : — ^The debt being contracted
MtjttTtan l>^fo'© tt® birth is part of the reasoning on which the judgment
^^^^'^^'^^^ proceeds. Sir Barnes Peacock referred to Hunoamanpermud
Basqua Yiba Pcmday y. Musit. Bahooee Munraj Eoonweree (1), judgment of
vATAMBiAB. Lo^ Justico Eniffkt Bruee.'] Reference was then made to Suraj
Btmri Koer y. 8heo Proshad Singh (2), where the ratio decidendi
is given at p. 109. See also Muddenffopal Lcdl v. Musst, Oountm'
huUy (8) a judgment of Phear, J., referring to Laljeet Singh v.
Rajcoomar Singh (4). Beference was also made to Adurmoni Deyi
y. Chawdhry Sib Narain Kwr (5); hachmun Dasa v. Oiridhwr
Chowdhry (6) ; Laljee Sahoy v. FaJceer Chand (7) ; Upooroop Te-
wary v. Lalla Bandhjee Suhay (8) ; Narayana Charya v. Narso
Krishna (9) ; Kaatur Bhavani v. Appa (10) ; Ponnappa PiUai v,
Pappuviengar (11), See also Colehroohes Digest, book 1, c. 5,
pi. 169, 170, 173; Vyavahara Mayukha, c. v. s. 4 ;• Maenaghten^a
Hindu Law, c. x. Of Debt, Case 3 ; Strangers Hindu Law, c. viii.
par. 1 ; c. ix. par. 3.
The Eespondent did not appear.
The judgment of their Lordships was delivered by
Sib Babnes Peacock :—
The Appellant in this appeal was the Plaintiff, and the Re-
spondent the Defendant, in a suit, No. 13 of 1875, brought in the
District Court of Tinnevelly. It appears that in an origiDal suit,
No. 8 of 1867, brought in the District Court of TinneveUy, the
late zemindar of Sivagiri, the father of the Defendant, put in a
razinama, dated the 20th of January, 1868, whereby he acknow-
ledged the sum of Bs.55,872. 12a. to be due, and agreed that the
amount should be paid on the 31st of December, 1872, together
with interest at one per cent, per mensem, by the instalments
(1) 6 Moore, Ind. Ap. Ca. 421. (6) Ind. L. R. 6 Calc. 865 (F.B.).
(2) Law Rep. 6 Ind. Ap. 88. (7) Ind. L. R. 6 Calc. 135.
(3) 15 Beng. L. R. 266. (8) Ibid. 749.
(4) 12 Beng. L. R. 373. (9) Ind. L. R. 1 Bomb. 262.
(5) Ind. !• R 3 Calc. 1. (10) Ind. L. R. 6 Bomb. 621.
(11) Ind, L. R. 4 Madras, 1.
VOL. IX.] INDIAN APPEALS. 131
mentioned therein, and he thereby hypothecated certain lands J. 0.
therein specified, being part of the zemindary, as a security for the 1882
payment of the principal and interest. MuttItak
On the 4th September, 1868, a decree was passed in accordance Chethae
with the razinama. The money not having been paid according Sanoili Vika
to the stipulations the property hypothecated was attached, in natambiSu"
the lifetime of the late zemindar, for instalments Nos. 1 to 9
mentioned in the razinama. The Plaintiff Appellant, in his
plaint in the suit now under appeal, alleged that the whole
zemindary was on several occasions attached by other creditors,
and that subsequently to the death of the late zemindar, the
Plaintiff again attached the hypothecated property on the 23rd
of February, 1874, for the tenth instalment of the razinama
decree ; that the District Court advertised that all the property in
the zemindary would be sold in a lot on account of all the
creditors ; that the Plaintiff presented a petition to the said
district Court praying for a separate sale of the hypothecated
property mentioned in the decree, or for the sale of the whole
zemindary subject to his hypothecation lien ; that the Court dis-
missed the said petition, on the 23rd of February, 1874, without
any inquiry ; that subsequently, on the 25th of February, 1874,
the right, title, and interest of the late zemindar in the whole of
the zemindary was sold by auction and^ purchased by Suhranumia
Mudahar of TinneveHy ; that the Defendant presented a petition
praying for the release of the attachment made by the Plaintiff
for the last instalment, and that on the said petition an order was
passed by the Court, on the 18th of April, 1874, to the effect that
the attachment ceased with the sale of the zemindary. The
Plaintiff further alleged that by reason of the objections and
measures taken by the Defendant the judgment debt remained,
unpaid, and that the Plaintiff had thereby sustained heavy loss.
The Plaintiff in his plaint also alleged that the zemindary was
the self-acquired property of the late zemindar, and, moreover,
that the debt acknowledged by the razinama was a just one,
having been contracted by the late zemindar for the up-keep
of the zemindary for the liquidation of debts contracted on the
liability of the whole zemindary before the birth of the Defen-
dant, and for the benefit of the zemindar's family, and he prayed
132 INDIAN APPEALS. [L.E.
J. 0. that a decree might be passed cancelling the orders passed on
1882 the 23rd of February, and the 18th of April, 1874, and uphold-
MuTTATAN ^ the attachment made by Plaintiff in Suit No. 8 aforesaid,
CwxiAB confirming his right to recover the judgment debt of the said
SANonj ViBA Suit No, 8, on the liability of the said Sivagiri zemindary, and
jfATAxsuB. adjudging the sum of Bs.88,062. 12a., as per particulars given to be
recovered by the Plaintiff, with subsequent interest and costs
from the Defendant and on the liability of the property hypothe-
cated to the Plaintiff under the decree in the Suit No. 8, and
specified in the schedule thereto, and of all other property that
had devolved on him from the late zemindar, and granting such
other relief as the Court might deem proper and necessary in the
case.
In the particulars given, the sum of Rs.88,062. 12a. was made
up of R8.79,574. 13a. for principal, and Rs.8487. 9a. for interest
due under the decree according to the terms of the razinama.
The property mentioned in the schedule to the plaint was the
same as that hypothecated by the razinama.
No written statement was put in by the Defendant.
The case was tried by the district Judge of Tinnevelly, who, on
the first hearing, was of opinion that, as the only basis of the
plaint was the razinama decree in original Suit 8 of 1867, on
which the Plaintiff had already taken out execution and received
partial satisfaction, the plaint must be thrown out.
On appeal, however, the High Court reversed that judgment,
stating that '* the questions raised in this suit are the liability of
the property in the hands of the present zemindar to satisfy the
decree obtained by the Plaintiff against the late zemindar ....
The question of liability and of its extent being one of very con-
siderable diflBculty .... a suit regularly conducted was the
most appropriate method of determining it." The case was, there-
fore, remitted for trial on its merits, and was heard again.
On the hearing, after the remand, the contention of the Defen-
dant was, first, that the suit was not legally maintainable ; secondly,
that the nature of the debt was not proved to be one legally or
morally binding upon the present zemindar; and, thirdly, that
the late zemindar had no power for this debt to encumber any
portion of his estate beyond his own tenure of the property.
VOL. IX.] INDIAN APPEALS. 133
The oonnsel for the Plaintiff sought to shew — J. 0.
1st. That the debt which is the basis of the snit was one in- 1882
curred before the birth of the present zemindar ; Muttayan
2ndly. That it was a bond fide debt for absolute necessity and C=^^
not for mere extravaG:ance ; Sangiu Viba
° , Pandia Ouin-
3rdly. That the entire zemindary was the self-acquired property natambiab.
of the late zemindar, and could be alienated at will by him,
and therefore that the hypothecation created by him was
enforceable.
It was stated by the district Judge in his judgment that though
no issues were settled, the above points were virtually the issues
to which both parties at the final hearing addressed themselves.
The following is the history of the zemindary as found by the
district Judge, and concurred in by the High Court : —
'*The zemindari of Sivagiri was an ancient polliem of the
district of Tinnevelly^ and was converted into a zemindary with
a permanent peishcush by the Government in the year 1808, and
the then poligar was granted a sannad-*i-milkeut istimrar, and
was created first zemindar of Sivagiri. He died on the 21st of
February, 1819, and, having left no male heir, his only daughter
was created second zemindar of Sivagari (Exhibits E 1 and E 2).
She died in 1835, and was succeeded by her elder son Varagtma
Bama Fandia GhinnatamUar (Exhibit E 7), the third zemindar.
During his time a new sannad was applied for, in consequence of
the original being lost, and was issued to him in October, 1841.
Exhibits E 11 to E 19 give the history of the sannad, a copy
of which is Exhibit 1 8. It is in the usual form and concludes
with the words * you are hereby authorized and empowered to
hold in perpetuity to your heirs, successors, and assigns at the
permanent assessment herein named the zemindary of Sivagiri*
This man died the 27th of September, 1873, and has been suc-
ceeded by his son Sangili Vira Pandia Chinnatanibiar, the fourth
zemindar, the Defendant " (Eespondent).
In the course of his judgment the district Judge, speaking of
suit No. 8 of 1867, made the following observations. He said : —
" This suit ended in a razinama by which the zemindar pledged
himself to pay Es.55,872 with interest, and he pledged a certain
tank in the village of Sivagiri as security for the amount.
Vol. IX. L
134 INDIAN APPEALS. [L. B.
J. 0. ^* It was while that suit was in course of execution that the
1882 whole zemindari was attached by this Court, and for three years
Mttttatan taken into this Court's management for the liquidation of the
^^'^J''^^^ judgment* creditors, and these Plaintiffs received their shares in
Sakqili VntAthe rateable distribution from the produce of the whole estate,
PandiaOhik- . '^
KATAMBIAB. VIZ.,
"*" " Es. 7452. 13.7 on the Ist of July, 1872,
" „ 4230. 5. 9 on the 21st of November, 1872,
« „ 7609. 10. 10 on the 29th of January, 1874, and
** „ 3777. 8. 5 on the 14th of April, 1874,
in all, Bs.23,070. la. 7p. in payment of this razinama A 2.
'^ This suit is brought for the balance of that razinama debt,
and the whole arguments of the Plaintiff's counsel have been
directed to shew that the claim is due from the whole estate.
Even under the razinamah A 1, which is the basis of this suit,
the lien could have only been against the land therein named,
viz., certain lands under one tank, but, under the provisions of
sect. 271, the Plaintiff as mortgagee, if he wanted to hold his lien
upon this one tank, cannot, of course, partake in the rateable dis-
tribution, and he would have to reimburse, with its accumulated
interest, the Ks.23,070 which he has received before he could
seek to exercise his right as a mortgagee under sect. 271. This
principle has been maintained by this Court with regard to other
of the judgment creditors who shared in this distribution, and
who, like this Plaintiff, having benefited by the attachment of the
whole estate and shared in its produce, although he had merely
an interest in a fractional portion thereof like this Plaintiff, also
sought to get an interest which, if he ever possessed it, he had
waived by taking part in the distribution."
He then, after examining the evidence as to the receipts, the
peishcush, and the expenses of the estate, proceeded as follows : —
'^ I find, therefore, upon the record as it is now before the Court,
that this Plaintiff cannot succeed in the present suit, —
*' 1st. Because this claim is based upon a debt which is covered
by a decree now in course of execution. This ground
has, however, been reversed by the High Court in their
judgment.
" 2ndly. I find that he cannot succeed as, having taken his
VOL. IX.] INDIAN APPEALa 135
share of the rateable distribntion of the proceeds of the whole J. 0.
estate, he is legally prevented by the proviso of sect. 271 1882
from still enforcing his share over his mortgage property, muttatak
This opinion, before stated, has been confirmed by the High Ohbttub
Court in appeal in Civil Miscellaneous Begular Appeal, Sakoili Yira
-*.-r *-k/mrv i> i o"*/* PANDIA OHIN-
No. 260 of 1876. natambiab.
" Further, though the Plaintiff's counsel urged the Plaintiff's "'^
lien over the whole estate, there is no foundation whatever upon
the record for such a plea.**
''He sought to establish that the debt was one of family
necessity. I find it not to be so established. . . .
''The Plaintiff says that this debt is one which the son is
legally bound to pay for his father. I find that it is not so. . • •
''The Plaintiff has urged that the zemindari was the self-
acquired property of Varaguna Bama Pandia Ghinnatcmhiary the
Defendant's father, and that he could therefore alienate the whole
of it at will without reference to his sons, and that it is to be
governed strictly by Hindu law. I find that it was not his self-
acquired property, although it came to him through his mother,
but as ruled in his case by the Sudder Court in Appeal Suit,
No. 90 of 1851, wherein the whole of the Plaintiff's present argu-
ment was advanced and disposed of. I therefore find that the late
zemindar had power only to alienate his life interest for his debts,
and not to alienate his son's reversion, and moreover that, in point
of fact, he did not attempt so to alienate it for the present
Plaintiff's debt.
" F,or all these reasons I find that the estate now in the hands
of the zemindar (Defendant) is not liable to satisfy the Plaintiff's
judgment claim against the late zemindar, and further that the
Plaintiff is, as above stated, legally debarred from bringing this
suit."
" I therefore dismiss this suit,"
Their Lordships think it rigbt here to remark that there was
great irregularity in the district Judge's proceeding to a final
hearing without issues having been settled, so that the parties
might before the trial know to what points they would have to
address themselves, and also in his having, in direct opposition to
the judgment of the High Court,, held in his judgment, after the
ISe INDIAN APPEALS. [L. K.
J. O. remand, that the Plaintiflf was legally debarred, as above stated,
1882 from bringing his suit.
MuTTAYAN ^^® Plaintiff appealed from the decree of the district Judge to
Ohbttiab j.|jQ High Court upon the following grounds, viz. : —
Sanqili Viba 1. That the Plaintiff was entitled to a decree for the amount
Pandia Chin- , . ,
NATAMBiAR. clai mecl .
2. That the zemindary of SivagiH came to the Defendant
burdened with the debts of his father, whether incurred
before or after Defendant's birth, and having assets of his
father in his possession he was liable for his father's debts
to the extent of the assets.
3. That the district Judge was in error in holding that the
Hindu law did not apply.
4. That the zemindary was the self-acquired property of the
Defendant's father, or at all events it was not property
in which the Defendant acquired any rights by reason of
his birth. The Defendant merely succeeded to the estate
left on his father s death and had no independent rights in
the property.
5. That if the zemindary should be held to be ancestral pro-
perty in which the Defendant acquired rights by his birth,
the Plaintiff was still entitled to charge his debt upon the
zemindary, the Plaintiff's debt having been incurred in
circumstances which would make it a binding charge upon
the estate.
6. That the Plaintiff was not precluded, as the Judge held,
from maintaining the suit.
Upon that appeal the High Court, after adverting to the nature
of the suit and to the contentions of the Plaintiff and Defendant
respectively, proceeded as follows : —
" The lower Court originally held that the suit was not main-
tainable, but on appeal it was decided by this Court that the
question of the liability of the estate in the hands of the Defen-
dant to satisfy the decree against his father was one of considera*
able difSculty, and that a regular suit was the most appropriate
mode of determining it. The history of this zemindary, in so far
as it is necessary for the purpose of this suit, is sufficiently set
forth in paragraph 8 of the judgment appealed against. In his
VOL. IX.] INDIAN APPEALS. 137
revised judgment the district Judge considers that, as the second J. 0.
zemindar was a woman, the third zemindar wonld, under the 1882
ordinary Hindu law, have held the zemindary as his self-acquired muitatan
property, but that he had not held it as such by reason of its Chettiab
being an impartible estate, held exceptionally under a sannad Sanoili Yiba
(Exhibit E 18) from the GoTemment. The first question for de- katambiab.
cision is whether the Hindu law is not applicable in this case. It
seems to us that the sannad only rendered permanent the peish-
cush or assessment, which had varied from time to time, changed
the character of the estate, which had till then been that of a
southern polliem, into that of ordinary Hindu property, and re-
cognised the ordinary Hindu law as governing the succession to it
in order to determine the right of interference exercised by Govern-
ment OQ the ground of tenure, without prejudice to impartibility
or any other special incident which has already attached to the
estate by the custom of the family, originating no doubt in the
ancient tenure. We are therefore of opinion that the zemindary,
though impartible by custom, is doubtless governed by the Hindu
law, subject, as observed by the Privy Council in 9 Moore, I. A.,
685, to such modifications as flow from its impartibility.
" This view brings under our consideration the next question,
whether, when the zemindary vested in the Defendant's father, it
became his self-acquired property. In support of this contention
it is urged for the Appellant, 1st, that the second zemindar was
a woman ; 2odly, that she took an obstructed heritage ; and,
Srdly, that when it passed into her son's possession it ceased to be
ancestral property in which his son (Defendant) had ownership by
birth.
" For the reasons mentioned in our judgment in the Shivagunga
case, we think that though a daughter, inheriting to her father,
succeeds as heir, and does not take, as is at times stated, merely a
life estate, still she takes but a qualified heritage, which, under
the text of Catyayana, passes upon her death to her father's in
preference to her own heirs. Her succession being thus rather a
case of obstruction or interposition than of regular inheritance for
herself and her own heirs, and the estate taken by her being,
moreover, as observed in that judgment, not her stridanan, her
intervention as heir does not, in our opinion, alter what was
188 INDIAN APPEALS. [L. B.
J. O. originally ancestral into self-acqaired property. According to all
1882 the texts of the Hindu law of which we are aware, the absence of
HuTTATAx paternal or maternal property or of any aid from it is a necessary
Chittiab ingredient in the conception of self-acqnired property, and the
Sangili ViRA author of the Mitakshara defines it as property which has been
Paio^ia Chin- r r ^
NATAMBiAB. acquircd by the coparcener himself without any detriment to the
goods of the father or mother (Mitakshara, chap. 1, sect. 4, c. 2).
We think it is clearly erroneous to say that property inherited
through a mother is self-acquired as between her son and
grandson.
" It may not be ancestral in the sense in which property inhe-
rited by the &ther from the paternal grandfather is liable to
partition under the Mitakshara law at the instance of the son, but
it is not self-acquired property on that ground for purposes other
than those of partition."
The High Court then, after considering the question whether
the restriction as to the alienation of ancestral property, imposed
upon a father by the Mitakshara law in regard to property de-
scended from his father or paternal grandfather extended to
property descended from his maternal grandfather, expressed their
opinion that the contention of the Plaintiff that the zemindary
should be treated for the purpose of alienation as if it had been
self-acquired by the father was not well founded.
They then proceeded thus : —
" The next question for decision is whether the debt sought to
be recovered, which though in part improvident, is neither im-
moral nor vicious, and which *is further partly secured by a
mortgage,' is binding on the present zemindar, * the Defendant in
the suit and the Eespondent in the appeal, who was not born when
it was contracted.' "
In determining that question they say : —
" As to the contention that a debt may not have been incurred
for family necessity and may still be binding on the son, provided
that it is neither immoral nor vicious, we do not clearly see our
way to uphold it. According to the text of Tagnyavdlcya, the
alienation of immoveable property without the son's consent is
forbidden, and, according to the text of Vrihaspatiy the father
can only alienate it where there is a family necessity. It is then
VOL, IX.] INDIAN APPEALa 139
argned that, as obseryed by the Jadicial Oommittee in Qirdharee J. 0.
LaU y. Kantoo Lall (1), the son is under a pious obligation to 1882
pay the &thei^s debt where such debt is neither immoral nor MTrrrATAv
vicious. Obettiab
" There can be no doubt that it is the pious duty of a son to p^^ q^,
pay his father's debt. Narada says that fathers desire male offspring natamwab.
for their own sake reflecting ' this son will redeem me from every
debt due to superior and inferior beings/ Therefore, a son be-
gotten by him should relinquish his own property and assiduously
redeem his father from debt lest he fall into a region of torment.
If a devout man or one who maintained a sacrificial fire die a
debtor, all the merit of his devout austerities or of his perpetual
fire shall belong to his creditors. (1 Dig. Higg. Edition 202.)
''If this text is to be enforced as imposing a legal duty, we
shall have to compel sons who have inherited no property from
their father, either ancestral or self-acquired, to pay the father's
debt, for the text directs him to pay it from his own property.
Again, this pious obligation is confined to the son and grandson,
and does not extend to the great grandson, and in the case of
the grandson it is limited to the payment of the principal.
Yrihaspati says, *the sons must pay the debt of their father,
when proved, as if it were their own, or with interest ; the son's
son must pay the debt of his grandfather, but without interest,
and his son or the great grandson shall not be compelled to
discharge it unless he be heir and have assets.'
" Vishnu observes likewise, *If he who contracted the debt
should die, or become a religious anchoret, or remain abroad
for twenty years, that debt shall be discharged by his sons or
grandsons, but not by remoter descendants against their will.'
(1 Dig. Higg. Edition 185.)
"Thus, the obligation does not depend on the relation as
partakers of the same funeral cake, and is not co-extensive with
the capacity to inherit.
" Consequently, if there are sons, grandsons, and great grand-
sons, the obligation must be held to be valid to the full extent of
the debt as against the first, to the extent of the principal as
against the second, and not at all as against the third. Again,
(1) Law Rep. 1 Ind. Ap. 321.
140 INDIAN APPEALS. [L.B.
J. 0- the allusion in the text of Narada to * every debt due to superior
1882 and inferior beings' would seem to favour the view that pious
MurrlrAK duties were enforced by Hindu tribunals in the exercise of their
Chbttiab jurigdiction over matters which are purely spiritual. When the
Sangili YnuL learned Advocate-General is pressed with these difiSculties in
NATAMBiAB. recognisiug the son's pious obligation as a legal obligation, he
"""* argues that though it is not to be enforced as such where no assets
are inherited^ still the son's ownership in ancestral property is
subordinate to that of the father, and the father's predominant
interest gives it the chaiacter of a legal duty with respect to the
alienation of ancestral property. But in chapter 1, sect. YI., 9,
the author of the Mitakshara says, ^ The grandson has a right of
prohibition, if his unseparated fftther is making a donation or sale
of efiects inherited from the grandfather, but he has no rights of
interference if the eflTects were acquired by the father. On the
contrary, he must acquiesce because he is dependent.' In p. 10
he states, * Consequently the difference is this : Although he has a
right by birth in his father's and grandfather's property, still, since
he is dependent on his father in regard to the paternal estate, and
since the father has a predominant interest a$ it was acquired hy
himself, the son must acquiesce in the father's disposal of his own
acquired property ; but since both have indiscriminately a right
in the grandfather's estate, the son has a power of interdiction (if
the father be dissipating it).' According to Vignyanesvara Yoga,
the author of the Mitakshara, the son's ownership in ancestral
estate is not subordinate but co-ordinate, and it is dependent only
where the father himself acquires the property. The course of
decisions in this Presidency from the date of the case cited in
Mad. High Court Rep. 47, has been to recognise equal ownership
by the son in the grandfather's estate, though it may not be
divided between the father and the son, and to uphold the father's
alienation only to the extent of his share, though in Bengal it
has been held that an undivided share is not alienable. This
difference in the view of the two High Courts is referred to by the
Judicial Committee in Been Byal Lai v. Jugdeep Narainsingh (1).
** In these circumstances, it is not easy to conclude that the
Lords of the Judicial Committee intended to vary the course of
(1) Law Rep. 4 Ind. Ap. 252.
TOL. IX.] INDIAN APPEALS. 141
decisions in this Presidency. In the decision in Kantoo LdtTs J. G.
case there are remarks which shew that the father and son ^ere t8S2
probably acting in coUnsion with one another against the purchaser, mcttayan
and that the suit was not brought till ten years after the sale was ^=®^'^^
completed. Sahoili Viba
*' The pious duty of a son may be a foundation for presuming matahbiab.
the son's concurrence in the alienation by the father when, with
the knowledge of it, the son elects to remain in coparcenery with
the father, and takes no step to set aside the alienation, until the
father becomes destitute after a considerable lapse of time, when,
acting in collusion with him, he tries to upset a transaction in
which he may be fairly presumed to ha^e acquiesced in the
special circumstances of the case. Furthermore, the property
now in litigation is an impartible zemindary, in which the son
cannot protect his interest as in ordinary property by electing a
diyision. The only question then which remains to be considered
. is, whether the debt now in dispute was incurred under family
necessity. The Court below holds that there was no necessity for
contracting the debt. Though we concur in the view that, under
more prudent management, the arrears of peishcush in 1853 might
have been avoided, still we think that, in so far as the plaint debt
was applied to the liquidation of debts which had been contracted
for paying the assessment, it is binding on the Defendant. The
original lender advanced the money to relieve the zemindary from
attachment for arrears of peishcush, and he was bound only to
look to the immediate pressure on the estate and the benefit
accruing to it from the advance. There is nothing in the evidence
to lead us to the conclusion that this was a fraudulent contrivance
between the late zemindar and the creditor to enable him to
apply the income from the estate to purposes other than those
warranted by the law. To this extent we think that the debt is
binding upon the zemindary.
. " We shall, therefore, vary the judgment appealed against so as
to adjudge to the Plaintiff Rs.26,049. 4a. 7p., with proportionate
costs on the security of the zemindary, and otherwise confirm it."
Upon that judgment the following decree was recorded: —
" This Court, in variance of the revised decree of the Lower
Court, doth order and decree that the Plaintiff do recover the sum
Vol. IX. M
142 INDIAN APPEALS. [L. R
J. a of Bs.26,049. 4a. 7p.f with proportionate costs in this Court and in
1882 the lower Court on the amount now adjudged; and this Court
McTTATAir ^^^ farther order and decree that the zemindary of Sivagki
^^'™'^''^*^ shall be liable for the satisfaction of the 'decree amount and
Sangiu VmA costs now adjudged, and that the decree be in other respects
PandiaOhin- ^ j„
NATAiEBiAB. coniirmea.
From that decree a petition of review was presented by the
Plaintiff.
The Defendant also applied for a review of judgment upon
the ground that the calculation upon which the decree was based
was erroneous, and that the amount decreed was too high.
The reviews were admitted and in delivering his judgment the
learned Judge, Mr. Justice MiMusami Atyar, before whom the
reviews were heard, declared that he still adhered to the prin-
ciples on which the decision passed by the late Chief Justice Sir
Waiter Morgan and himself rested, and confined himself in dealing
with the petitions of review to errors of calculation and to those
matters which shewed that the decree had not been drawn up in
conformity with the judgment, and then after dealing with the
errors in calculation and declaring that the error should be
corrected in the mode indicated, proceeded, —
** It is also from oversight that the decree contains no provision
for payment of interest at 6 per cent, per annum until date of
payment. The Bespondent has no objection to the amount
decreed being held to be a special charge on the village mentioned
in the plaint. The decree should be amended in this respect
also."
The first decree of the High Court was accordingly amended,
and the final decree passed on review was entered as follow: —
**This Court, in variance of the revised decree of the lower
Court, doth order and decree that the Defendant do pay to the
Plaintiff the sum of Es.35,132. 11a. 9jp., with further interest at
6 per cent, per annum upon Bs.32,284 from the 22nd of February,
1875, the date of the plaint, till date of payment, and that the
zemindary of Sivagari be liable for the satisfaction of the decree,
amount, and costs, now adjudged. And this Court doth further
order and declare that the said amount forms a valid charge over
the property mortgaged to the Plaintiff and described in the
VOL, IX.3 INDIAN APPEALS. 143
schedule hereunto annexed. And this Court doth further order J. a
and decree payment of proportionate costs incurred both in this 1882
Court and in the lower Court upon the amount allowed and dis- muttatak
allowed respectively; And it is hereby ordered that the Defen- OHBmaA»
dant do pay to the Plaintiff Bs.1692. 6a. 6p., being the amount of 6akgili Viba
Pandia Ohin*
nett costs as admitted by both parties due to Plaintiff after natambiab.
deducting the costs due by him to the Defendant*
*^ Bastngaperihutamy consisting of 58^ kotas, 4 merkals, and
I measure seed, wet land, inclusive of maniam lands, in the cusba
village of Sivagiri, in the Defendant's zemindary.**
From that decree the present appeal was preferred. The
Defendant did not appeal or file any cross appeal.
It was contended on the part of the Plaintiff, firsts that the
zemindary, having descended to the Defendant's father from his
maternal grandfather, was his self-acquired property, or at any
rate that he was not as regards his son under the same restrictions
as to the alienation or hypothecation of the property as he would
have been if it had descended to him from his father or paternal
grandfather ; secondly, that the whole zemindary, or at least the
interest which the Defendant took therein by heritage, was liable
as assets by descent in the hands of the Defendant, as the heir of
bis father, for the payment of his father's debts. Their Ijordships
are of opinion that the Appellant is entitled to sacceed upon the
second ground, and they therefore think it unnecessary to express
any opinion upon the first. Indeed, as the case has been argued
before them on one side only, and the same question may here-
after be raised in some other case, they consider it right to abstain
from expressing any opinion upon it, except that they concur with
the High Court in holding that the property was not the self-
acquired property of the Defendant's father.
As to the second ground, they consider that the case is governed
by the case of Oirdharee Lull v. Kantoo Loll (1). The doctrine
there laid down was not new, but was supported by the previous
cases therein cited. The principle of that case was adopted by
this Board in the case of Suraj Bunsi Koer (2), and. has been
(I) Law Bop. 1 lad, Ap. 321. (2) Law Rep. 6 Ind. Ap. 101.
144 INDIAN APPEALS. [L. U.
■J. a very properly acted upon in Bengal^ and Bombay, and in the
1882 North- West Provinces, and although it was not acted upon by the
iMuTTATAif High Court in Madras as it ought to have been in the case novr
.OaETMAE jjj^i^f appeal, it has since been acted npon in a Pull Bench deci-*
Saiwili Viix gion by all the Judges of that Court, except two who dissented,
.HATAMBiAB. of whoui Mr. Justice MtMusami Aiyar was one, in Pmneafpa
PUhd V. Pappuviengar (1), decided the Ist of April, 1881.
The reasons given in the judgment of the High Court in the
present case constitute no ground for the opinion that the case of
KaMoo LaH does not apply to the Madras Presidency. It was
said in the judgment in that case : '^ There is no suggestion either
that the bond or the decree was obtained benamee for the benefit
of the father, or merely for the purpose of enabling the father to
sell the family property and raise money for his own purpose.
There is nothing of the sort suggested and nothing proved."
That statement certainly did not justify the assertion of the
High Court, which was clearly a mistake, that in that case there
were remarks which shew that the father and son were probably
acting in collusion with one another against the purchaser."
One of the grounds relied upon by the High Court for con-
sidering that the case of Kantoo Lall was not applicable to the
MadATOA Presidency was that the course of decisions in the Madras
Presidency had been to uphold the father's alienation to the
extent of his own 'share, though it was said to have been held in
Bengal that an undivided share is not alienable, a difference re-
ferred to by the Judicial Committee in Deen Dyal Lais Case (2).
Assuming without admitting that the difference exists (see the
remarks in 6 Law Bep. Ind. App. 102) it is impossible to see
how the father's power to alienate his own share could constitute
a valid reason for supposing that where that law existed the son's
share taken by heritage from the father was thereby exempted
from liability for the payment of his father's debts. The fact of
the zemindary being impartible could not affect its liability for
the payment of the father's debts when it came into the hands of
the son by descent from the father. Their Lordships are of
opinion that no order ought to be made for cancelUng the orders
of the 23rd of February; and the 18th of April, 1874, or for
(1) Ind. L. B. 4 Madras, 1. (2) Law Reii 4 Ind. Ap. 262
VOL. IX.] INDIAN APPEALS. 145
npholdiDg the attachment made by the Plaintiff in Suit No. 8. By J. 0.
rach a decree, the rights of other creditors and those of the pnr- 1882
chaser nnder the sale of the 25th of February, 1874, might be M^riTAYAir
affected, and none of them are parties to this suit. Those orders 0*i*i-xiAB
and that attachment do not affect the rights of the Plaintiff as Sanoiu Yiba
against the Defendant It would seem from the proceedings in katambias.
the District Court of Tinnevdly, of the 18th of April, 1874, —
and the statement in the 10th paragraph of the plaint taken
together, that the life interest of the late zemindar, the father
of the Defendant, in the whole zemindary, including the part
hypothecated, have been sold to a bona fide purchaser. That
sale cannot be affected as to whatever legally passed under it by
any decree in this suit. The learned Jadge of the High Court
who heard the case in reyiew, and who declared in the decree that
the amount decreed forms a valid charge over the property mort-
gaged to the Plaintiff, did not allude to the decision of the district
Judge as to the abandonment by the Plaintiff of his lien under
the hypothecation by partaking of a rateable distribution with
the other creditors of the father, nor did he intend to affect nor
could he affect by that declaration the rights of persons not
parties to the suit, nor did he intend to nor could he by declaring
that the zemindary of Sivagiri should be liable for the satisfaction
of the decreed amount and costs affect the rights of the purchaser
under the sale admitted by the Plaintiff in the 10th paragraph of
his plaint. The Defendant is liable for the debts due from his
father to the extent of the assets which descended to him from
his father, and all the right and interest of the Defendant in the
zemindary which descended to him from his father became assets
in his hands, and that right and interest, if not duly administered
in payment of his father's debts, is liable as against the Defen-
dant to be attached and sold in execution of the amount that may
be decreed against him.
Their Lordships will therefore humbly advise her Majesty to
reverse the decrees of the High Court and of the District Court
respectively, and to decree and declare that the Defendant, as the
son and heir and legal representative of Varagmia Bama Pandia
Chinnatarnbiai\ deceased, the late zemindar of Sivagiri, do pay
to the Plaintiff, out of the property which was of the said Vara-
Vol. IX. N
146 INDIAN APPEALS. [L. B.
J. 0. gv/na Bama Pandia Chinnatamhiary deceased, and which came to
1882 the Defendant by heritage, the amount due on the 2nd of March,
MuttTtan 1875, under the decree of the 4th of September, 1868, mentioned
•Chettiab i^ ^Y^Q piaj^^ filgd jjj tljQ gjji^ j^Q 13 ^f 1375 i^ ti^e district
Sangili Viba Court of Tiimevelly, together with interest on the amount so due,
PAin)TA Chin- ,_ «/» i. % r^ i -^r i •» oprr
NATAMBiAB. at thc Tato of 6 per cent, per annum, from the 2nd March, lo75,
"■"" to the time of realization, and, farther to declare that, so far as
the Defendant is concerned, all the right, title^ and interest,
which descended to him from his father and came to him by
heritage, as well in that part of the zemindary of Sivagiri which
was hypothecated by his father, as in that part thereof which was
not hypothecated, are liable, so far as they had not been ad-
ministered in payment of his father's debts, to be attached and
sold in execution of the amount for which it shall be declared
that the Defendant is liable, together with such interest as afore-
said, after giving credit for any portions thereof, if any, which
since the said 2nd day of March, 1875, have been paid or satis-
fied ; and, further, that the case be remanded to the High Court
with directions to ascertain and determine what amount was on
the said 2nd day of March, 1875, due under the said decree of
the 4th of September, 1868, and whether any and what portion or
portions thereof has or have been satisfied or discharged since the
said 2nd day of March, 1875, and to pass a decree in accordance
with the aboTO directions, and awarding costs both in the district
Court and in the High Court in proportion to the amounts
decreed and disallowed respectively.
And it is hereby ordered that the costs of this appeal be paid
by the Eespondent.
Solicitors for Appellant : Burton^ YecUes, Hart, & Burton.
VOL. IX.] INDIAN APPEALS.' ^ 147
PORESHNATH MOOKERJEE Defendant; j^.
AND 1882
ANATHNATH DEB Plaintiff.
ON APPEAL FROM THE HIGH CX)URT AT BENGAL.
Estoppd — Plea.
A dur-putnidar defeated a suit for rent brought by his putnidar (who was
,' also zemindar) on the plea that he had parted with his dur-putni interest
to his wife and son, who were accordingly sued, and their dur-putni interest
sold in execution to the zemindar.
In a suit by the zemindar, suing as dur-putnidar, against his tenant, the
Appellant intervened and claimed title to the dur-putni under a mortgage
from the former Defendant (made subsequent to the dismissal of the former
suit). He alleged that the wife and son were merely benameedars and that
he had completed his title by a purchase in execution of a decree obtained
on his mortgage : —
Eeld^ that the Appellant, who admittedly would have been estopped as
mortgagee by the plea of his, mortgagor from setting up his present claim,
. was in no better position by reason of his purchase in execution.
Appeal from a decree of the High Court (Nov. 21, 1878) re-
versing a decree of the District Judge of zillah Beerbhoom (Jan. 18,
1877) whereby the Ilespondent's suit was dismissed with costs.
The Eespondent sued one Bistoo Chimder Boy, originally sole
Defendant, to recover from him as ijardar or lessee for a term the
rent due in respect of certain lands called Hooda Ldba, to the rent
of which the Eespondent claimed to be entitled as purchaser at a
sale in execution of the interest of the lessors, Dhtm Krishna Sen,
and another. Poreshnath intervened on the allegation that he and
not the Eespondent was entitled to receive that rent, as the true
lessor was one Ishan Chtmder Sen, father of Dhim Krishna^ and
that Dliwn Krishna and the other nominal lessor were benamee for
Isha/n; and that he {Poreshnath) had at another sale in execution
purchased the interest as such lessor of Ishan Chimder Sen. The
Judge held that Poreshnath had established his allegation, and
that the Eespondent had no right to the rent in question.
* Present :-^m Babnbs Peacock, Sib Robert P, Collier, Sir Richard
Couch, and Sir Arthur Hobhouse.
Vol. IX.
May 11.
148 INDIAN APPEALS. [L.B.
J.O. The High Court in appeal held that the rule laid down in
1882 Pieha/td v. Bears (1) was applicable to the circumstances of this
PoBESHNATB casc, aud that the Appellant was estopped, under the circumstances
Moo^EBjBB gi^^^^j jjj ^YiQ judgment of their Lordships, as hihan Chunder would
•^^^^^™ haye beep, from setting up a claim inconsistent with certain repre-
sentations made by Ishan Chunder, which had induced the Eespon-
dent to believe, and to act upon such belief, that Dhtm Krishna
Sen and another were the true owners of the interest in question.
Leith, Q.O., and Doyne, for the Appellant, contended that it
was not proved that the Respondent had been induced to purchase
from the benameedars on the representation of JsAaii Chunder thai
they were absolutely entitled. The evidence shewed that the
Respondent had notice of the fact that the transfer by Ishan
Chtmder to his wife and son was benamee. Even if that were not
so, Poreshnath did not take directly from Ishan Chunder either as
mortgagee or as assignee and was not bound by his representations.
He obtained a decree on a mortgage bond, and at a sale in exe-
cution of that decree became the purchaser of the land in suit
Reference was made to the India/n Evidence Act, 1872, s. 115 ;
Co. Liu. 352 a ; Comyns' Digest, Estoppel ; Richards v. Johnson (2) ;
Dinendronath Sawnyal v. Bancoomar Ohose (3).
Woodroffe, for the Respondent, was not called upon.
The judgment of their Lordships was delivered by
Sib Richabd Couch : —
The question in this appeal, which is from a decision of the
High Court at Cahutta on an appeal from the District Court, is
stated by the learned Chief Justice in giving the judgment of the
High Court, in which he says : — ** The point upon which, in our
opinion, this case should be decided is rather of a peculiar nature.
The Plaintiff is the zemindar of a share in a property called lot
Shahcivmpore, and he also claims to be the dur-putnidar of a
portion of the same property. In his character of dur-putnidar^
he brings this suit against the Defendant No. l^'^Bishtoo Chimder
(1) 6 Ad. & E. 474. (2) 4 H. & N. 660.
, (3) Law Rep. 8 Ind. Ap. 71.
VOL. IX.] INDIAN APPEALS. 149
Boy, — ** as ijardar of part of the estate for rent and for road-cess. J. o.
The Defendant resists the claim npon the ground that Poreshnath, i882
the Defendant No. 2, is the real owner of the dar-patni ; and the pqbimiinath
Defendant No. 2 has intervened for the purpose of supporting his Mookbbjeb
title to the rent as against the Plaintiff. It appears that some Anathnath
time ago, in the year 1259 (a.d. 1852), one Ishan Chunder pur- !
chased and was the undoubted owner of this dur-putni estate. In
the year 1265 " (a.d. 1858), Ishan " Chunder, being in difficul-
ties, sold or professed to sell the dur-putni to his wife Kripamoyi
and his son Dhv/n Krishna ; and thereupon the names of Eripa"
moyi and his son Dhun Krishna were entered in the Plaintiff's
serishta as the owners of the dur-putni." It has been suggested
that this is not correct : there is a question whether it was in the
Plaintiff's serishta, but it is not material : — " After this sale, the
rent of the dur-putni being in arrear, the Plaintiff (whether in
ignorance of the sale or not does not appear) brought a suit for
the rent against Ishan Chtrnder, who defended the suit upon the
express ground that he was no longer the tenant, and that he had
parted with his interest in the dur-putni to his wife and son ; and
he not only defended the suit on this ground, but he stated in his
evidence that the sale to his wife and son was an absolute and
bond fde one ; that the dur-putni really belonged to them, and
that he had no right or interest in it."
It appears from what has been stated by the learned counsel for
the Appellant, that in this suit Ishan Ckimder put in a written
statement to this effect on the 7th of November, 1872, and the
suit was dismissed on the 18th of November, 1872. The learned
Chief Judge proceeds : — " Upon the strength of this evidence
Ishan Chimder defeated the Plaintiff's suit, and the Plaintiff had
to pay the costs of it. Having failed in that suit, the Plaintiff
then brought another suit for the same rent against Kripamoyi
and Dhtm Krishna. He obtained a decree against them, and
under that decree the dur-putni was sold, and the Plaintiff
himself became the purchaser of it. Upon the title thus acquired
the Plaintiff brings the present suit against the Defendant No. 1,"
Bishfoo Chtmder Boy, — " the ijardar of that portion of the pro-
perty ; and assuming that the title derived in this way is a good
one, there is no doubt as to his right to recover the rent as
2
150 INDIAN APPEALS. [L. B;
J. 0. against the Defendant No. 1." Then the learned Chief Jastice
1882 alludes to the question of the amount to be recovered which the
PoBESHNATH Appcllaut wds wilHug to give up, and in order to avoid the neces-
MooKBBjKB gj^y Qf ^ remand, says : ** Consequently the only point for our
Akathnath consideration is, whether the Plaintiff on the one hand, or the
Dbb.
intervening Defendant on the other, is entitled to the rent of the
dur-putni. The claim which the intervening Defendant Bets up is
by right of Ishcm Chimder. He says that Ishan Chunder mort-
gaged the property to him, and that such proceedings have been
taken upon that mortgage that he is now entitled, in lahan
Chimder*€ rights, to the rent of this property as the owner of it"
The proceedings thus alluded to were these: On the 11th o£
January, 1873, about three months after the written statement
had been put in by lahan Chv^der, and the suit had been dis-
missed, a mortgage bond was given by IsJum Chimder to Paresh-
nath^ who brought a suit upon it and obtained a decree on the 6th
of September, 1875 ; which Mr. LeUh^ who was counsel for the
Appellant, stated, although the form of the decree does not
appear, was the ordinary decree as upon a mortgage boQd. Oa
the 13th of September, 1875, he obtained an order for sale in
execution of that decree, and the side took place on the 18th of
December, 1875, being a sale of the right, title, and interest of
Ishan Chimder^ and Poreshnath became the purchaser for the sum
of E8.5600. The certificate of sale was granted on the 24th of
March, 1876, and in that it is stated that Poreehnath purchasecl
the property for Rs.5600, and had put in a receipt crediting the
amount of consideration against the decrotal amount received by
him. In fact he did not pay any money upon the purchase which
he had made at the sale, but became the owner of the property in
satisfaction of his mortgage. It was decided by the First Court
that the intervening Defendant had a right to go into the question
whether Ishan Chunder were the real owner of the dur-putni of
not, a^d that Court found upon the evidence that the sale by him
to his wife and son was a benamee transaction, and that Ishan
Chtmder was the owner. Consequently the question really is,
whether Poreshnath is estopped by the written statement which
Ishan Chtmder made in the former suit. The learned Chief
Justice says : *' It appears to us that, inasmuch as the intervening
VOL. IX.] INDIAN APPEALS. 151
Defendant claims under Ishan Chundefy and can take no better J. 0.
title than Isihan Chvmder himself^ and as Idian Chumder has 1882
directly induced the Flaii^tiff to believe that he had sold his pro* Pobeshn^th
perty absolutely to his wife and son and led him to bring a suit ^^^^^^^
against them for the rent, and under the decree obtained in that Akatonath
suit to purchase their interest in the property, it does not lie in — 1
tlie mouth of lahan Chwnder^ or any one claiming under him by a
Bubsequent title, to set up a claim to the rent in this suit as
against the Plaintiff."
Their Lordships think that is a right conclusion ; that, looking
to what took place, PoreshntUh cannot be considered as baying
put himself, by reason of his purchase at the sale which he had
brought about in execution of his decree on the mortgage bond,
in a better position than he was in as mortgagee taking from Hhan
Chunder. It is admitted that, if he had claimed as a mortgagee
or a& an assignee of JbJum Chtmdery he would be estopped ; and
their Lordships think that he is substantially in the same position,
that he did not by purchasing in this way put himself in a better
position, and consequently that he is estopped by the statement
which hhan Ohwnder made, and that the decree of the High
Court is correct.
Their Lordships will therefore humbly advise Her Majesty to
dismiss the appeal; and the costs theseof will be paid by the
Appellant.
Solicitors for the Appellant : Oehme <& StmmerJiays^
Solicitor for the Bespondents : T. L. Wilson^ *
152 INDIAN APPEALS. [L. B.
J.0.» EDWARD D. SINCLAIR Plaintiff;
1882 ^ND
^a^J^i^e^T; L. P. D. BEOUGHTON (Administratob ^
— ' Genebal op Bengal, and Administratob
TO THE Estate op Sib Henby Tombs,
deceased), and the GOVERNMENT
OP INDIA
Dependants.
ON APPEAL FBOM THE COURT OF THE COMMISSIONER OP LUCK-
NOW AND FROM THE COURT OF THE JUDICIAL COMMIS-
SIONER OF OUDH.
lUegctH Arrest and Detention — Powers of the ComrMmder of Military Canton"
ments—Act XVIIL of ISbO—Dangerous Lunatic'-Act XXX VI, of 1858.
Act XVIII. of 1850 is an Act for the protection of judicial officers acting
judicially and of officers acting under their orders.
In a suit against the officer in command of the military cantonments in
Lmknow for damage to the Plaintiff, in consequence of the Defendant having
put him under an unlawful arrest and having wrongfully confined him
in his own premises for three successive days, and for having cauBed violence
to be used to his person and property ; it appeared that the Defendant had
acted bond fide, and under the erroneous belief that the Plaintiff was danger-
ous, by reason of lunacy ; that he had put him into confinement in order
that he might be visited and examined by medical officers until such officers
should feel themselves justified in reporting whether he was a dangerous
lunatic or not ; that he had after such medical officers had pi|>orted him per-
fectly sane, kept him on their recommendation in restraint in order that he
might be removed from the cantonment and placed under the observation of
the civil surgeon; —
Eeld, that the Defendant had acted without legal authority under
Act XXXVL of 1858 or otherwise, that he was not protected by Act XVIH.
of 1850 or otherwise, and that he was liable in damages to the Plaintiff.
Appeal in forma pauperis, by special leave, from a judgment of
the Commissioner of iMeknow (July 2, 1874) whereby the
damages awarded to the Appellant by the Judige of the Civil
Court of Lueknow (May 12, 1874) in respect of wrongful impri-
sonment, were reduced from Bs.3000 to B3.300, and from a judg-
ment of the Judicial Commissioner of Ovdh (Nov. 17, 1874),
* Present ;— .Snt Babnes Peacock, Sir Momtagub E. Smith, Sib Robebt P.
CoLLiEB, and Sib John Mellob.
V.
Bbouqeton.
TOL. IX.] INDIAN APPEALS. 153
whereby the above-mentioned judgment of July 2, 1874, was J. o.
reversed and the Appellant's suit dismissed. 1882
The suit was instituted on the 3rd of November, 1873, by the s^olaib
Apj^llojii in forma pauperis in the GivU Court, against General
Sir Henry Tombs to recover damages, laid at Bs.25,000, in respect
of the wrongful imprisonment of the Appellant in his own pre-
mises on the 1st, 2nd, and 3rd of November, 1872, under the
orders of the Defendant.
Under Act VIII. of 1859, sect. 70, the Government of India
undertook the defence of the suit on behalf of the Defendant.
On the 12th of February, 1874, the Defendant, just befqje
leaving for England^ where he shortly afterwards died, filed
a written statement wherein he, after referring to the conduct
of the Appellant and to the claim made on him for protection
by the lady residing in the opposite house, among other things,
set forth that after due inquiry into the Appellant's sanity
he, as officer commanding the cantonment and consequently in
general control of the police within its limits did, in good faith,
and considering himself bound in the interests of public safety so
to do, plaoe an unarmed guard of soldiers over the Appellant in
substitution for the police originally employed by him for that
purpose and conined him to his own house until the return of the
cantonment magistrate, honestly believing when he did so that
the Appellant was dangerous by reason of lunacy actual or im-
pending, to himself and others.
The facts of the case are stated in the judgment of their Lord
ships.
The following issues were settled : —
1. Was Defendant guilty of false imprisonment ?
2. If so, was Defendant justified in his act, either on the repre-
sentation of the medical officer or in the interests of the public ?
3. Was Defendant, as the officer commanding the cantonment
of LucJcnow, competent to take up the duties of the police, on his
treatment of Plaintiff under the provisions of Act XX 11. of 1864,
sect. 11, or otherwise ?
4. Was Defendant empowered, under the provisions of Act
XXXVL of 1858, in making over the Plaintiff to the court of
the cantonment magistrate, or did he so under due course of law ?
^ i
154 INDIAN APPEALS. [L. R
J. 0. 5. Was Plaintiff subject to undue violence and ill-treatment,
1882 whilst in arrest and confinement/ under the order of the DefeU'^
SiNOLAw dant?
Bboughtok ^* '^^^ *^® damages at which the Plaintiff has assessed his claims
excessive, and, if so, what damages, if any, is Plaintiff fairly and
reasonably entitled to ?
On the 12th of May, 1874, the Civil Judge of Luehnotv pro-
nounced judgment in the suit. He observed that the violent
fits of temper and uncontrolled passion displayed by the Appel-
lant, combined with acts of a peculiar and eccentric character,
lupd brought his sanity into question, and that the conclusion
which the public had, rightly or wrongly, drawn from them, had
in all probability influenced the Defendant in taking the measures
which he, as officer in command of the Division had, on witnessing
the Appellant's conduct on the 1st of November, 1872, considered
it necessary to take, in the interests of the public. He found that
those acts and that conduct were not in themselves sufficient to
justify the conclusion that the Appellant was labouring under any
aberration of his mental faculties, necessitating a resort to those
measures, and that on the evidence of Drs. Outhrie and Scott he
must be taken not to havabeen insane, or in any way dangerous,
when they visited him on the Defendant's request, and he held
that the Defendant had no authority to act against the Plaintiff
in the manner established by the evidence. He thus summed
up his conclusion : —
^^ Whilst, then, there is established a clear case of false im-
prisonment, on insufficient grounds, it is at the same time equally
manifest that General Ton^B was not actuated by any malice or
personal feeling against the Plaintiff. He was a perfect stranger
to him. Nothing had passed before the arrest which would induce
the belief that the General had used his position and authority,
intentionally, to the injury and degradation of the Plaintiff. From
all I can make out it is unquestionable that the General acted, as
he represented the matter to the Government of Indda^ in the
discharge of a public duty^ having in view, no doubt, those ante-^
cedent acts of the Plaintiff, established by the evidence by^ which
he had unfortunately acquired some notoriety.
<^ Notwithstanding all this, I am of opinion that the Defendant
VOL. IX.] : INDIAN APPEALS. ~ 155
has rendered himself l^ally liable. He may have acted, as he J. a
thought, in the puUio interest, but he had no authority to resort 1882
to extreme measures, nor did the necessity arise for such a mode binolaib
of procedure, and that he acted erroneously admits of no doubt. ^ *' j.
At the same time there exists, I consider, certain mitigating
circumstances, allusions to which have been made in the course of
the judgment, which must be considered and given due weight to,
in assessing the damages to which the Plaintiff may be held
entitled. The claim of the Plaintiff is excessive beyond all
bounds* There is no special reason assigned or proved for such a
claim, nor indeed is any case made out for damages to the extent
of Bs.25,000. Plaintiff was bound to prove his, title to such
relief. The Plaintiff preferred his claim as a pauper, and it is
very questionable whether, had he to pay the costs of such a claim,
he would not have moderated his demand. So that the amount
laid claim to is no criterion of the damages to which Plaintiff may
fairly and reasonably be held entitled.
^* Considering the Plaintiff^s position at the time of filing the
suit, and his station in life prior thereto, which are elements to be
considered and weighed, in assessing the damages in a case of this
nature, I am of opinion, after a careful consideration of the case
in all its bearings, that a sum of Bs.3000, as damages, will meet
all the requirements of the case, and at the same time meet the
ends of justice,
*^ In assessing the damages the Court has fully taken into con-
sideration the high standing of General Tombs"
By his decree of the same date in which the Government of
India was, through some misconception, treated as a co-Defendant^
the Judge awarded to the Appellant Es.3000 as damages, and
directed General Tomhs, as well as the Government of India, to
pay that sum, and Bsrl78 as costs, with interest thereon at 6 per
cent, from that date until liquidation, to the Appellant.
Jn appeal the Commissioner (July 2, 1874) awarded the Ap-
pellant a decree for Bs.300, and directed him to pay the Defen-
dant's costs of Bs.2700, being the difference between the sum
decreed in the lower Court and on the hearing of the appeal.
In his judgment he said: '^I do not think it is proved that
Plaintiff was at the time restraint was put upou him a dangei^us
_ 1
156 INDIAN APPEALS. [L. B.
J. a lunatic : but it is clear that Defendant believed him to be so, and
1882 on the whole I am of opinion that there were suflSeient grounds for
SiNOLAiB proceeding under sect. 4 of Act XXXVI. of 1858, which authorizes
BuouGHTON ^^^ apprehension of all persons believed to be dangerous by reason
of lunacy," and then proceeded : —
"Under English law a private person may, without any warrant
or authority, confine a person disordered in his mind, who seems
disposed to do mischief to himself or any other person, the restraint
being necessary both for the safety of the lunatic and the preser-
vation of the public peace.
« *^ The police powers of the officer commanding a station are not
very clearly defined in Act XXII. of 1864; it gives him general
control, and empowers him to send any process, requiring imme-
diate service or execution, by any means not immediately at his
disposal to the police for execution, under the same rules as pro-
cesses of the cantonment magistrate, but the deputy inspectors of
police can arrest, without warrant, any person believed to be
dangerous, by reason of lunacy (vide sect. 4, Act XXXVI. of
1858), and I have no doubt that the officer commanding a canton-
ment has power to order the deputy inspector to make such arrest,^
and that the deputy-inspector would be bound to obey any such
order. Plaintiff alleges the brigade-major did order the deputy-
inspector to arrest him, and that he refused, but this officer, vide
his deposition, denies this, and there is no evidencQ in support of
the allegation. The arrest was purely a police matter, not in-
volving the exercise of any magisterial powers.
^* The circumstances attending the arrest are not clearly brought
put in evidence ; there seems, however, no doubt that, though the
police were present, the actual arrest was made by European
soldiers, acting independently and not assisting the police officer,
as provided by sect. 91 of the Code of Crinxinal Procedure. It is
pleaded (and with truth) that there is nothing unusual in enaploy-
ing unarmed European soldiers to watch Europeans, when only
native policemen are available, and it is further urged that the
employment of Europeans was specially desirable in this case,
as the presence of natives was likely to irritat^e Plaintiff and make
him violent.
'^ It is not alleged that Defendant proceeded under either of the
VOL. IX.] INDIAN APPEALS. 157
Acts above cited, or indeed, under any particular law, but it is J.O.
contended that he felt bound to take immediate steps, himself, in 1882
the absence of the cantonment magistrate and the magistrate of sinolaib
the district, and that he acted as a sensible and considerate man, -qj^^^q^^^
and that subsequent inquiry into the legality of his proceedings -- — '
shews that they were juflifiable by the law.
*' It appears to me that the arrest was not illegal, though the pro-
cedure in effecting it was irregular, and, as already noted, it would
have been more considerate to have consulted the medical officers
before resorting to extreme measures.
" It is necessary here to compare briefly the procedure prescribed
by Act XXXVI. of 1858, with that actually followed, in respect
of Plaintiff.
'^The arrest should properly have been made by the deputy
inspector, and, if it had been, Plaintiff would have been put in
charge of native constables, there being no European police.
** The Act directs that the person arrested shall be brought before
a magistrate, who, with the assistance of a medical officer, shall
examine him, and if the medical officer shall sign a certificate in
the prescribed form, and the magistrate is satisfied, from personal
examination or other proof, that such person is a lunatic, and a
proper person to be detained under care and treatment, he shall
make an order for such lunatic to be received into the asylum, &c.
*' Plaintiff was confined in his own house by European soldiers ;
he was visited, within about half-an-hour by two medical officers,
who recorded an opinion that it was necessary for them to have
Plaintiff longer under observation before they could make up
their minds as to his sanity ; the following day they pronounced
Plaintiff perfectly sane, but recommended that he should be placed
under the surveillance of the civil surgeon. An application was
made at once to the deputy commissioner accordingly, but, before
his reply had been placed before Defendant, Plaintiff had been
taken by his guard before the cantonment magistrate, as above
stated ; he had then been about fifty-four hours in confinement.
No formal certificate, in the form laid down in Act XXXYI. of
1858, was drawn out at the time or till after a considerable
period. Owing to the conflict of medical opinions, already referred
to, it is impossible to give a decided opinion what the result would
158 INDIAN APPEALS. [L. B.
J. 0. have been if FlaintifF had been examined by a magistrate and the
1882 civil surgeon, in accordance with the proyisions of the Act."
SiNOLAiB The Judicial Commissioner, on the 17th of November, 1874,
Bboughton. ^^^^ ^^^^ *^ officer commanding in cantonments is vested within
— * cantonments with all the police powers which a magistrate of a
district may exercise within his district /^and that as there was a
duty imposed on the Defendant as officer commanding in canton-
ments, to take action in consequence of his bond fide belief that
Plaintiff was dangerous by reason of lunacy, actual or impending,
and that as the action taken was in perfect good faith, and in
performance of the duty thus imposed, the Defendant was not liable
at law for damages in consequence of any wrong that might have
been unintentionally done to Plaintiff."
The material part of his judgment is as follows : —
*' There seems to be considerable misapprehension as to the
positicm of an officer commanding in cantonment?, in regard to
the police ; for the Commissioner writes : * The police powers of
the officers commanding a station are not very clearly defined in
Act XXII. of 1864,' and a similar opinion was expressed by the
learned counsel for the Appellant, in addressing me, but in my
Opinion the position of the officer commanding admits of no doubt
whatever. He is vested within cantonments with all the police
powers which a magistrate of a district may exercise within his
district* That this is so, is clear from the following examination
of the provisions of Acts XXII. of 1864 and V. of 186h By
sect. 11, Act XXIL of 1864, the police force employed in any
military cantonment is to be deemed part of the general police
force under the local government in whose territories such
cantonment is situate within the meaning of sect. 2, Act Y. of
1861, and all the provisions of the said Act shall be applicable to
such force. Had the section ended here, the administration of the
police within a cantonment would have been regulated by sect 4,
Act y. of 1861 ; for by that section the administration of the
police, throughout the local jurisdiction of the magistrate of the
district, is under the general control and direction of such magis-
trate, vested in a district superintendent, &c., and by sect 4, Act
XXIL of 1864, a cantonmenf is a division of a district within the
meaning and for the purposes of the Code of Criminal Procedure.
TOL. IX.] INDIAN APPEALS. 159
Bat the last sentence of sect. 11, Act XXII. of 1864, snbstitntes J. 0.
tbe commanding o£5cer of a cantonment for the magistrate of the 1882
district as head administrator of the police within the limits of gi^^is
the cantonment It will be observed that the words nsed are bbqughton
identical with those nsed in that part of sect. 4, Act V. of 1861,
which I have already quoted, the term * commanding officer of
snch cantonment ' being substituted for ' magistrate of the dis*
trict' The sentence runs: — ^The administration of the police,
within the limits of any cantonment in which there shall be a
cantonment magistrate, shall be vested in the district supers
intendent, subject to the general control and direction of the
commanding officer of such cantonment' Clearly then, an officer
commanding a cantonment in which there is a cantonment magis-
trate, as there is in Lmknow^ has within the limits of his canton-
ment all the general police powers conferred by Act V. of 1861 on
a magistrate of a district ; and, as all the provisions of this Act
are declared applicable to the police force in cantonments, the
commanding officer is entitled to the benefit of any statutory
protection accorded by the Act to members of the police force.
It would then, in my opinion, have been a complete and sufficient
answer to this suit had the Defendant pleaded the provisions of
sect. 42 of Act. V. of 1861, for the action was brought for a thing
done under the general police powers given by the Act, but it was
not commenced within three months after the act complained of,
nor yet within three months after the Plaintiff had been released
from jail, and was at liberty to commence it, nor were the other
provisions of the section complied with. On this ground alone, I
should feel justified in accepting this appeal and setting aside the
decrees of the lower Courts, but,, as the point was not raised in the
lower Courts, nor even in this second appeal to my Court, I prefer
to discuss the principle on which the appeal to my Court is mainly
based. ^
" I turn to the ninth plea, which is : — * For that public officers,
placed in a position such as that of Sir Henry Tomls, ought not
to be liable for damages if they only do what a reasonable and
prudent man would do for the safety of the public, and particu-
larly when they inflict no actual damage on any individual.'
This plea is good. There can be no doubt that if a duty is
^ /
160 INDIAN APPEALa [L. R.
J. 0. imposed upon a person, the law protects that person in the bona
1882 fide performance of that duty, and will not permit any one
SiHOLAiB wronged through an error nnintentionally committed by such
Brocohton. P®^8^^ i^ *^® performance of his duty, to recover damages in
— a Court of law. As pointed out in the arguments addressed to
the Court, protection is accorded by the law under certain circum-
stances, even to private individuals who arrest criminals (and the
arrest of criminals and lunatics is analogous), while a much wider
protection is afforded to persons making arrests in the perform-
ance of a duty imposed upon them. Were this not the case the
administration of government would be greatly weakened, if not
imperilled. I cannot but think that the Lower Courts, in grant*^
ing the decrees they did, acted under a misapprehension of the
relations subsisting between an officer commanding in canton-
ments and the police force, and, owing to this misapprehension,
they did not fully appreciate the fact that the Defendant, Sir
Henry Tomhs, was bound to take some action for the preservatioa
of the peace in consequence of the eccentric conduct of the Plain-
tiff. It is immaterial for me to determine whether the course
adopted by Sir Eenry Tombs was the precise course that he ought
to have adopted ; it is sufficient for me to be satisfied that what-
ever he did was done in good faith, and that if a wrong was
inflicted on the Plaintiff it arose from a mistake. I think it as
well, however, to point out that when the Commissioner asserts
that the arrest should properly have been made by the deputy
inspector, he could scarcely have realized the fact that the officer
commanding in cantonments occupies, for police purposes, within
the limits of his cantonments, the same position as a magistrate of
a district does within his district. The Commissioner will hardly
assert that, if it is brought under the personal observation of a
magistrate of a district, that there is within his district a person
dangerous, by reason of insanity, the magistrate can take np action
for the arrest of that person until he can procure the attendance of
a deputy inspector of police. It will be seen that I lay great stress
on the position occupied by an officer commanding in cantonments
towards the police, and I have endeavoured conclusively to shew
what that position is. Holding, then, that there was a duty
imposed on the Defendants, as officer commanding in canton-
VOL. IX.] INDIAN APPEALS. 161
ments/to take action in consequence of his Ixmd fide belief that J. o.
the Plaintiff was dangerous^ by reason of lunacy, actual or impend- 1882
ingy and that whatever action was taken was taken in perfect good s^^lnt
faith, and in performance of the duty thus imposed on him, I am pbouohtoit
of opinion that the Defendant is not liable at law for damages in —
consequence of any wrong that may have been unintentionally
done to Plaintiff. I am of opinion, therefore, that a verdict should
have been given for Defendant, for, as remarked by the Calcutta
High Court in the case of Naha Krishna Mookerjee v. The Collector
of Eooghly and Another (1), there is no law in this country that
necessarily entitles a Plaintiff to a verdict for nominal damages.
In England, as a rule, costs follow the verdict ; but this is not the
case in this country, for by sect 187, Act VIH. of 1859, it is
incumbent on the Judge to direct by whom the costs of each
party are to be paid. In conclusion, I would observe that this
suit should not have been admitted in forma pauperis.^
The Appellant appeared in person, and contended that the
restraint to which he had been subjected was an illegal restraint,
that General Tombs was not a judicial officer within the meaning
of any Act, that there was no Act which protected him from
liability, and that his conduct was not free from malice. The
procedure which he adopted was not authorized by any law.
Doyne, and Woodroffe, for the Bespondent, contended that the
decree of the Judicial Commissioner was right and should be
affirmed. All the Courts were agreed that General Tomhs acted
with complete lona fides, and the Appellant's present contention
that though he began lona fide, yet malice arose afterwards or
must be inferred from his not attending to the warning of the
magistrates, is opposed to those findings. The errors imputed by
the first Court to the Defendant were merely lona fide errors of
procedure. [Sir John Mellob: — The restraint is the thing to
attend to. If that was unlawful, it probably matters not^ as
regards the cause of action, whether it was inflicted by police or
soldiers.] The Commissioner seems to think that the procedure
was wrong in sending the soldiers. At all events whatever lia-
bility there might be of the Defendant was terminated on the
(1) 2 Beng. L. R. 277.
V, '
Bbouohtov.
J62 DTOIAN APPEALS. [L. B.
J^C, Appellant's appearance on the 8rd of November, 1872, before the
1882 cantonment magistrate nnder the process issued by that officer
;Swot1ie ttn<ler Act XXV. of 1861, sect. 282. #The Indian Courts held
that the Defendant was in no way responsible for the proceedings
taken by the cantonment magistrate. Then it was contended that
in directmg the apprehension of the Appellant during the
absence of the cantonment magistrate, and in keeping him under
restraint until he was brought before the cantonment magistrate
on his return, the Defendant acted in the exercise of his juris-
diction as commanding officer of the LueTcnow cantonment. He had
police powers : see Reg. III. of 1809 and Reg. XX. of 1810. [Sib
Babnes Peacock : — These are B^^oZ regulations ; do they apply ?]
Act XXII. of 1864, sects. 11, 12, provide that the police force
employed in any military cantonment shall be deemed to be part
of the general police force under the local government within
whose territory such cantonment is situate, within the meaning of
Act y. of 1861. The commandant of a cantonment has a general
direction over all the police charged with keeping the peace.
When a person says that another is a dangerous lunatic the police
officer must exercise an honest discretion as to belief. The officer
must believe that he is mad ; the officer must be put in motion
on grounds that recommend themselves to his own mind. He
must have reasonable and probable grounds for that belief: see
CaMer v. ScJket (1) ; Sjpooner v. JvMow (2), decided long before
Act XVIII. of 1850. Here there was an exercise of discretion,
judicial or quasi judicial cast upon Tombs. [Sib Babnes Pea*
COCK : — ^He must either be a judicial officer acting judicially or
not. The phrase ^^ quasi judicial " would mean nothing more than
discretionary]. It is in the nature of a judicial act: see Kemp y.
Neville (3), for instance, where clearly judicial functions were exer-
cised : see also Eughes v. Bucldand (4) ; Fergmson v. Lord Kin^
noul (5). The Defendant was (a) protected by Act XVIII.
of 1860 ; (6) if not he was within the principle of Spooner v.
Juddow (6).
(1) 2 Moore's Ind. Ap. Ca. 293; (3) 10 C. B. (N.S.) 523.
3 Moore's P. C. 28. (4) 15 M. & W. 346.
(2) 4 Moore's Ind. Ap. Ca. 353. (5) 9 CI. & F. 251.
^' (6) 4 Moore's Ind. Ap. Ca. 379.
VOL. IX.] INDIAN APPEAL& 163
With regard to the liability of officials, they were not at one J^O.
time suable in the- country but only in the Presidenby Courts : 1882
Ghvemment y. Brijsoondree Daaee (1), where it was held that Binolaib
Government officers not coming within the definition of revenue BBouGHroif.
collectors were not responsible to the country Courts. If the "t-
Defendant be suable, he is protected as within the principle of
CaJder v. Ealket (2). [Sib MoKTAauE K SunTH : — ^The principle
of that decision is the principle of the construction of 21 Geo. 3,
0. 70, and so on in the later eases of the l^ter Acts. Do you
bring Tombs within the Acts ? If not, you must fall back on
some principle of common law which protects the exercise of not
merely judicial but every discretionary authority.] The principle
of law established by the cases cited may be stated thus : where
the law imposes upon a public officer a duty which requires the
exercise of a discretion, and such officer, in the hond fide exercise
of such discretion, acts in a mistaken manner so as to cause
damage to another, such officer is not responsible therefor even
though he be not acting as a judge. To hold otherwise would be
to expose an honest officer to consequences which would hamper
and impeach the exercise of the very discretion which it was
intended to clothe him with. Tombs therefore could arrest if ^
he believed the Plaintiff to be a dangeroas lunatic. [Sir Mon-
tague E. Smith : — Again, if the original arrest were justifiable, did
he take the proper steps after it? If more than a reasonable
time elapsed before he took the Plaintiff before a magistrate, is he
protected ?] The matter would stand thus : If a public officer is
by law bound to discharge public duties for the benefit of the
public which require the exercise of judgment and discretion,
such officer is quoad that duty within the protection of Act XVIII.
of 1850 : Collector ofHoogJdy and Others v. Tardknath MuJchopa-
dhya (8); Chtmdernarian Singh v. Brijo BuUvb Oooyee (4).
The intention with which the act is done is immaterial save as
bearing upon the question of bona fides : Lucas v. NockeUs (5) ;
OusdeifY. Plowden{6); so that even if General Tombs retained
(1) S. D. A. (1848), p. 456. (3) 7 Beng. L. R. 449-481.
(2) 2 Moore's Ind. Ap. Gas. 293; (4; 14 Beng. L. R. 254, 257.
3 Moore's P. C. 28. (5) 10 Bing. 157
(6) 1 Boulnois, Supreme Court Reports, 145.
Vol. IX. P
164 INDIAN APPEALS. [L. R.
J. 0. the Plaintiff with the view of obtaining a definite medical opinion,
1882 and not with the view of handing him oyer to the magistrate
Sinclair when the latter should return, such intention would not deprive
Brotjghton ^^^^'^1 Tombs of any protection which he might have when
" — such intention made^ as here, no difference in the actual result
to the Appellant, owing to the magistrate's absence. In no
sense was the Brigade Major Beadon the agent of General Towi)$
except for the purposes of the Acts, nor was Torfi)8 liable for
his actions. See Addison on Torts [3rd ed.], p. 14 ; Nicholson v.
Mounseif (1).
The Appellant replied.
J^ The judgment of their Lordships was delivered by
•^!!!!5- Sir Babnes Peacock :—
This is an appeal brought in forma pauperis by the Appellant,
Mr. Edtrnrd D. Sinclair^ by special leave of Her Majesty in
Council, from a judgment of the Judicial Commissioner of Oudhf
dated the 19th of November, 1874, in a suit brought by the Appel-
lant in the Court of the Civil Judge of Lticknow against the late
* Major-General Sir Henry Tomibs, and also from a judgment of the
Commissioner of Luehnow in the same suit.
The suit was commenced as far back as the year 1873, and was
for the recovery of damages laid at R8.25,000, alleged to have
been sustained by the Plaintiff in consequence of the" Defendant's
having put him under an unlawful arrest of European soldiers of
Her Majesty's Royal Artillery, and having wrongfully confined
him in his own premises for three successive days, viz., from the
Ist to the 3rd of November, 1872, and having caused violence to
be used against his person and property. The Plaintiff also com-
plained that the Defendant, subsequently to the first step, viz., on
Sunday, the 3rd of November,. 1872, forcibly delivered the Plaintiff
into the custody of the late Lieutenant Ouhhins, the then canton-
ment magistrate.
The Defendant, wbo was the officer in command of the military
cantonments in Imchnow, put in a written statement, and thereby
(1) 15 East, 384.
VOL. IX.J INDIAN APPEALS. 165
alleged that at about 8 a.h. on the 1st of November, 1872, he was J. G.
riding towards his house in cantonment, when he noticed a flag 1882
flying from the thatched roof of a house in which Plaintiff resided, Sinclair
and saw PlamtifF walking about in a yery strange and excited bbo^qhton
manner; that on being informed by Mrs. Qvlly (wife of Captain
GWZy, of the Eoyal Artillery), who resided in the house opposite
that of Plaintiff, that she was alarmed at the conduct of Plaintiff,
and on being asked by Mrs. Qvlly for protection against the Plain-
tiff (Captain OuUy being absent from the house), Defendant caused
due inquiry to be made regarding Plaintiff, and, on information
received by him, he directed two medical officers, Doctors Outhrie
and Scott, to examine the Plaintiff as to his soundness of mind ;
and that the medical officers, on examination of the Plaintiff, con-
sidered it necessary to recommend that he should be kept under
an European guard until they could form a decided opinion as to
his sanity. He further stated that, in the absence of the canton-
ment magistrate from the station on the 1st and the 2nd No-
vember, 1872, Defendant, as officer commanding the cantonments
of LucknoWy and consequently in general control of the police
employed in the military cantonments (see Act XXII. of 1864,
8. 11), considered that he was bound and justified, in the interests
of public safety, to act on the recommendation of the two medical
officers aforesaid, and believing the Plaintiff to be dangerous, by
reason of lunacy, actual or impending, placed over Plaintiff a
guard of unarmed European soldiers, to prevent him doing harm
to himself and others. That the substitution of unarmed European
soldiers for native policemen was in accordance with the usual
practice, in case of European lunatics, when European policemen
are not available.
That on the return of Lieutenant Otibhms, the cantonment
magistrate, to the station, on the 3rd of November, 1872, the
Plaintiff was made over in due course to the said magistrate
(sect. 4, Act XXXVI. of 1858), to be dealt with according to law,
and that Defendant was in no way concerned, nor could he be
held responsible for any proceedings that might have taken place
in the Court of the cantonment magistrate, or subsequently.
That Defendant acted throughout in perfect good faith, and in
P 2
166 INDIAN APPEALS. [L.B.
J. 0. the interests of pablic safety, and that no violence was used by
1882 the Defendant's order, or at his request.
SiNCLAiB ^hat the amount of damages claimed by the Plaintiff was
Bboughtok. excessive, with reference both to the Plaintiff's late position in
life and the nature of the alleged wrong.
The case was tried in the first instance by the Civil Judge of
Lucknow^ who gave judgment for the Plaintiff, and assessed the
damages at Bs.3000.
From that decree the Defendant appealed to the Commissioner
of LueJcnow, who upheld the decision, but reduced the damages to
Bs.300, and ordered the Plaintiff to pay the Defendant's costs on
Es.2700, the difference between the Es.800 and the sum awarded
by the Civil Judge.
It appears that, on the morning of the 1st of November, 1872,
the Defendant, who was then the commanding officer of the
cantonment at Jjuoknow, having reason to believe that the Plain-
tiff was a dangerous lunatic, caused him to be confined on his
own premises under a guard of unarmed European soldiers of Her
Majesty's Eoyal Artillery, and caused him to be soon afterwards
visited and inspected against his will by Drs. Guthrie and Seotty
in order to ascertain the state of his mind. Those gentlemen on
the same day reported that, having carefully examined the Plain-
tiff, they did not consider themselves justified in giving a decided
opinion on the case until it had been longer under their observa-
tion, and that they considered it necessary to recommend that
the Plaintiff should be kept under a European guard until the
case should be decided on. The Defendant in his written state-
ment admits that he felt himself bound, in the absence of the
cantonment magistrate, to act upon the recommendation of the
medical officers, though he there states his case as if the recom-
mendation had preceded the confinement, which was not the fact.
However, the Plaintiff W6ts kept under confinement from the 1st
to the 8rd of the month, and the medical officers were ordered to
visit him during his confinement, and did so against his will.
The Defendant signed on the report a memorandam as follows : —
** Mr. Sindair is a civilian, not belonging to the cantonments,
and it is hard on the troops to have to furnish a guard over him.
VOL. IX.] INDIAN APPEALS. 167
I hope, therefore, Drs. Chithrie and Scott will not be long in J. G.
making ap their minds. 1882
'' I believe Mr. 8indmr*s late chum, ' Mr. Beid^ could prove the sikolaib
insanity at once. Bboughton.
"Dr. Oarmon is quite willing to receive him, and it is my -*—
opinion then that he should be observed before being sent to
Bhowanipoor and not in cantonments.
" Make the substance of this known to Dr. Chithrie.
"Mr. Sinclair must be subsisted by the cantonment magis-
trate."
It is clear that the district magistrate, or the oflBcer exercising
the powers of the district magistrate, would have had jurisdiction
in the case if the Plaintiff had been taken before him under
Act XXXVL of 1858, sect. 4. It is clear, however, from the
memorandum signed by the Defendant, that he intended to keep
the Plaintiff under the European guard until the medical officers
could decide on the case, a detention which he was not authorized
to inflict.
The report of the medical officers, with the memorandum
thereon signed by the Defendant, was delivered to Captain
Beadon, the brigade major, and on the following day, Saturday,
the 2nd of November, Drs. Quthrie and Scott forwarded a further
report to the effect that they considered the Plaintiff perfectly
sane, but that they recommended him to be placed under the
observation of the civil surgeon. This recommendation, it must
be observed, was quite in accordance with the opinion of the
Defendant expressed in the memorandum on the first report of
which he directed that the substance should be made known to
Dr. Quthrie. The certificate is, unfortunately, not forthcoming,
and has not been accounted for, but it appears from the evidence
of Major Beadon^ the brigade major, that he forwarded it on the
2nd to the Officiating Deputy Commissioner, with a docket, which
was in the following terms : —
**No. 4071. Luchnow Brigade Office, 2nd November, 1872.
** Forwards medical certificate regarding Mr. Sinclair's state of
mind, and to request that very early steps may be taken to
remove him to the charge of civil surgeon.
168 INDIAN APPEALS. [L.B.
J« O; ** Mr. Sinclair is at present under restraint and in charge of a
1882 military guard.
SiNOLAia (Sd.) ** K. Beadon, Captain, Brigade Major.
Bboughton. " ^^ ^^® OflBciating Deputy Commissioner, Lucknow."
— In answer to that request Major Beadon received from the
Deputy Commissioner the following communication :—
" No. 4928. 2nd November, 1872.
*' To the Brigade Major, Lucknow.
"Sir, — In reply to your memorandum, No. 4071, dated 2ad
instant, I have the honour to state that, the medical officers who
have examined Mr. Sinclair having reported him to be perfectly
sane, I should not be justified in placing him under restraint, or
under observation, against his will, of the civil surgeon. The law
relating to lunatics is clear on this point, that a magistrate has no
power to act against any person (under Act XXXVL of 1858),
unless that person has been declared by medical authority lunatic.
** 2. I therefore regret that I cannot comply with your request
to move Mr. Sinclair to the charge of the civil ' surgeon.'
"4:. The cantonment magistrate will.be directed to give attention
to Mr. Sinclair s proceedings, and, should occasion require, to
bind him over to keep the peace, and consign him to custody should
sureties not beforthcominff.
" I have, &c.,
(Sd.) ^' E. H. DE Montmorency,
" Officiating Deputy Commissioner."
" No. 4929. 2nd November, 1872.
" Copy of the foregoing forwarded to the cantonment magis-
trate, Lucknow, for compliance with reference to the last para-
graph.
(Sd.) " J. H. Phillips, Head Assistant for
" E. H. DE Montmorency,
** Officiating Deputy Commissioner."
Major Beadon states his belief that he received that communi-
cation on Sunday, the 3rd of November, about 11 o'clock, but
that, as he never did business on Sunday, he did not shew the
letter to the Defendant on that day, but did so on the following
Monday.
V.
BBOUaSTON.
VOL. IX.] INDIAN APPEALS. 169
The Plaintiff was not released from confinement either on the J. 0.
second report of the medical ofiScers received by Major Beadon on 1882
the Saturday or on the receipt of the letter from the Deputy smcLAiB
Commissioner, at about 11 o'clock on the Sunday. On that day,
however, a summons was issued by the cantonment magistrate
directed to the Plaintiff requiring him to appear at one o'clock
on that day, to enter into his personal recognizance in Bs.500,
and two sureties in Bs.250 each, to keep the peace for six months.
That summons was delivered to and treated as a warrant by
Major Beadon, who forwarded it on the same day to the officer
commanding the Boyal Artillery, with a letter, of which the
following is a copy : —
" Memorandum, No. Urgent.
''From the Brigade Major to the Officer commanding Boyal
Artillery. Luekriow, 3rd Nov. 1872,
" Has the honour to request that Mr. Sinclair, at present under
a guard of the B.A., may be taken at once before the cantonment
magistrate, in accordance with the inclosed warrant, when further
orders will be given to the N, C. officer in charge as to his
disposal.
(Sd.) *' BiCHARD Beadon, Captain, Brigade Major."
The Plaintiff was accordingly detained in confinement in his
own house until about two or three o'clock in the afternoon, when
he was taken by the European guard against his will before the
cantonment magistrate, not to be dealt with as a dangerous
lunatic, but in consequence of the summons, and was committed
for want of bail. Subsequently the Colonel commanding the
European Artillery addressed the following letter to the Defen-
dant : —
" LueJcnoWy 3rd November, 1872.
**Ha8 the honour to report, for the information of the Major-
General commanding, that Mr. Sinclair has been removed to the
magistrate's office, as herein directed, but considerable delay has
taken place in doing this, owing to Mr. Sinclair refusing to be
removed, and refusing to put on his clothes.
" The bungalow in which Mr. Sinclair resided is not in charge
of any servant, aud there are several articles of his property there.
170 INDIAN APPEALS. [L. B.
J. 0. A gunner has been left to the care of these things, as also two
1882 ponies supposed to be Mr. Sinclair^ till further orders are
SiNOLAiB received as to their disposal.
Bboughton. (Sd.) '' Neil Maokay, Colonel,
" Commanding K.A., Oude Division."
It was contended by the Defendant in his written statement
that he was not liable for the detention of the Plaintiff after he
was made over to the cantonment magistrate, and the first two
Courts very properly adopted that view. It does not appear,
however, upon whose information and complaint the summons was
obtained, and their Lordships cannot help remarking upon the
great irregularity of the forcible execution of it as if it were a
warrant. The Defendant, however, is not liable for any force
used in compelling the Plaintiff to go before the magistrate.
Their Lordships must also point out that Colonel J, Beid^ the
Commissioner, in his judgment, has referred to several matters
which do not appear in evidence. Their Lordships have, how-
ever, entirely rejected those statements from their consideration,
and have not been in any manner influenced by them.
Sir Henry Tombs having died, the Administrator General of
Bengal, as administrator of his estate, appealed to the Judicial
Commissioner of Oudh, who, on the 17th of November, 1874, held
that an ofScer commanding in cantonments is vested within
cantonments with all the police powers which a magistrate of a
district may exercise within his district, and that as there was a
duty imposed on the Defendant, as oflScer commanding in.canton-
ments, to take action in consequence of his bond fde belief that
Plaintiff was dangerous by reason of lunacy, actual or impending,
and that as the action taken was in perfect good faith, and in
performance of the duty thus imposed, the Defendant was not
liable at law for damages in consequence of any wrong that might
have been unintentionally done to Plaintiff.
It may be taken as a fact upon the evidence and upon the
findings both of the Civil Judge and of the Commissioner that the
Plaintiff was not, at the time when the acts complained of were
committed, a dangerous lunatic. At the same time, there can be
no doubt that the Defendant acted bond fide in the discharge of a
V.
Bbouohton.
VOL. IX.] INDIAN APPEALS. 171
public dutf, and nnder the belief that the Plaintiff was dangerous J. C
by reason of lunacy. 1882
That belief might have justified the Defendant, who as com- si^I^ib
manding officer of the cantonment had the control and direction
of the police, in directing proceedings to be taken by the police
under the 4th section of Act XXXYI. of 1858, but it is clear that
the Defendant did not proceed, or intend to proceed, under that
Act.
The Commissioner in his judgment, referring to Acts XXII. of
1864 and XXXVL of 1858, says:—
" It is not alleged that the Defendant proceeded under either
of the Acts above cited, or, indeed, under any particular law, but
it is contended that he felt bound to take immediate steps himself,
in the absence of the cantonment magistrate and the magistrate
of the district, and that he acted as a sensible and considerate
man, and that subsequent inquiry into the legality of his proceed-
ings shews that they were justifiable by the law.''
The Legislature has been careful in providing for the protection
of lunatics, and it would be extremely daugerous if the doctrine
enunciated by the Judicial Commipsioner could be held to be law.
He draws no distinction between a mistake in fact and a mistake
in law, if bond fde. He says, " The main point raised in the
appeal to this Court is one of principle namely, when a public
officer, who is bound by his duty to take some action, fully intend-
ing in good faith to do what is right, makes a mistake and causes
wrong, is such officer liable to be mulcted in damages by a Civil
Court ?" And he held that he is not. Again, he says, " Holding,
then, that there was a duty imposed on the Defendant, as the
officer commanding in cantonments, to take action, in consequence
of his bond fde belief that the Plaintiff was dangerous by reason
of lunacy, actual or impending, and that whatever action was
taken was taken in perfect good faith, and in performance of the
duty thus imposed upon him, I am of opinion that the Defendant
was not liable at law for damages in consequence of any wrong
that may have been unintentionally done to the Plaintiff. I am
of opinion, therefore, that a verdict should have been given for
the Defendant."
172 INDIAN APPEALS. [L. K.
J. c. There is no law which authorizes the police or a magistrate in
1882 the exercise of police duties, or an officer in command of a can-
SiNCLAiB tonment, in consequence of a bond fide belief that a person is
^ ^- dangerous by reason of actual lunacy, to put him into confinement
BrOUGHTON. o J J7 r
■- — in order that he may be visited and examined by medical officers,
and to keep him in confinement until such officers can feel them-
selves justified in reporting whether the person is a dangerous
lunatic or not ; a fortiori, this cannot be done in the case of a
hond fide belief of danger from impending lunacy. The Defendant
had no authority for causing the Plaintifi" to be put under restraint
for such a purpose, nor had he, after the report of the medical
officers that the Plaintiff was perfectly sane, any colour of autho-
rity for keeping him under restraint in order that he might be
removed from the cantonment and placed under the observation
of the civil surgeon, even though recommended so to do by the
medical officers.
Neither the police nor a magistrate in the exercise of police
duties could, under Act XXXVI. of 1858, have had any colour
for doing that which the Defendant caused to be done.
The Appellant appeared in person, and argued his case with
considerable ability.
The Eespondent appeared by counsel, who, amongst other argu-
ments, contended that the Defendant was protected by Act X VIII.
of 1850. But there is no foundation for that contention. That
Act was for the protection of judicial officers acting judicially and
officers acting under their orders. It is clear that the Defendant
was not a judicial officer, and that he did not act judicially. Mr.
Woodroffe, one of the learned counsel for the Defendant, cited
many authorities, and amongst others, CaMer v. Hcdket (1),
Spooner v. Juddow (2), Hughes \ Buckland (3), and Fergusson v.
Lord Kinnoul (4), but none of those authorities have any bearing
upon the present case. He also referred to Lucas and Nochds (5),
but there is a great distinction between that case and the present.
The Plaintiff has complained before their Lordships that he was
not allowed by the Civil Judge to give his own evidence-in- chief
(1) 3 Moore's P. 0. 28 ; 2 Moore's (3) 15 M. & W. 346.
Ind. Ap. Ca. 293. (4) 9 01. & F. 251, 290.
(2) 4 Moore's Ind. Ap. Ca. 353. (5) 10 Bing. 157.
VOL. IX.] INDIAN APPEALS. 173
on his own behalf, and that he was merely examined in the nature J. G.
of cross-examination on behalf of the Defendant. It does not 1882
appear that the Judge refused to allow the Plaintiff to give evi- sinolaib
dence as a witness for himself; but, assuming that the Plaintiff is BBouanTON
correct in his statement, the fact would be merely a ground of
appeal from the Civil Judge, and such appeal is expressly
excluded from the leave given by the order of Her Majesty in
Council.
The Plaintiff is entitled to a decree, and the only question
remaining is as to the amount of damages to which he is entitled.
Their Lordships see no sufficient reason to alter the judgment of
the Commissioner of Lucknow in that respect. They will, there-
fore, humbly advise Her Majesty to reverse the decree of the
Judicial Commissioner, and also to reverse the judgment of the
Commissioner of Lucknow as regards the order that the Plaintiff
shall pay the costs on E9.2700, being the difference between the
Es.3000 awarded by the First Court and the Es.300 awarded by
the Commissioner, but to affirm the last-mentioned judgment in
other respects. The Eespondents must pay the costs of this
Appellant in person.
Solicitor for the Respondents : H. Treasure.
i
174 INDIAN APPEALS. [L. B.
J- c* KAJAH NILMONI SINGH DEO BAHADOOE Appellant ;
Ij^ AND
jjfojMS. TARANATH MOOKEBJEE Respondent.
ON APPEAL FROM THE HIGH COURT AT BENGAL.
Jurisdiction of Bent Courts — Transfer of Rent Decrees into another District for
execution.
The Rent Courts established by Act X. of 1859 are Civil Courts within the
meaning of Act VIU. of 1859, and under sect. 284 of Act VIII. a Collector
can transfer his rent decrees for execution into another district.
Appeal from an order of the High Court (July 7, 1880), made
in exercise of its power of superintendence over inferior Courts,
given by 24 & 25 Vict. c. 104, s. 15. It substantially set aside
certain orders (March 11, 1872, and May 27, 1879), of the Deputy
Commissioner of Manhhoomy transferring his own decrees made
under the Bent Ad (X. of 1859) to other districts for execution.
The grounds on which the High Court exercised its extra-
ordinary jurisdiction were that the decrees in question were
decrees of a Ee venue Court, and that the Deputy Commissioner
of Manhhoom had no authority under any law applicable to rent
suits in that district to make the order in question.
The judgment of the High Court {Bomes Chunder Mitter and
Maclean, J J.), was as ibllows : —
" If the orders complained of are passed without jurisdiction,
we think we have the power to interfere under sect. 15 of the Act
of Parliament constituting this Court (1).
** We are also of opinion that a Eevenue Court under Act X. of
1859 has no power to transfer a decree of its own to be executed
by another Court within the jurisdiction of the latter. Such power
cannot exist without an express provision of the law granting it.
♦ Present : — SiE Babnes Peacock, Sis Rodebt P, Collieb, Sib Richard
Couch, and Sib Abthub Hobhouse.
(1) Vide Qobind Coomar Chowdhry v. Eisto Coomar Chowdhry, 7 Suth,
W. R. 520.
VOL. IX.] INDIAN APPEALS. 175
It is clear, therefore, that both the orders complained of are such j. o.
as the Deputy Commissioner of Manbhoom had no authority to 1882
pass under Act X. of 1859, or any other law applicable to rent bIjah
suits in that district. ^B^^n
''But one of the orders was passed so far back as the 11th of i>bo
March, 1872, and we understand that sales and other proceedings «.
have been held and completed under it without any objection on mookewt™.
the part of the applicant. Under these circumstances, we do not —
think it right> in the exercise of our extraordinary power under
sect. 15 of the statute referred to above, to quash it now.
*' The other order complained of is comparatively of a recent
date, viz., the 27th of May, 1879, and from the time the peti-
tioner came to know of it, he has been diligently endeavouring to
have it set aside. Besides, if proceedings be allowed to proceed
in accordance with it, it may unnecessarily involve the parties to
this suit (and possibly also third parties) in profitless litigation.
Under these circumstances, we think it right to exercise our
extraordinary jurisdiction in respect of this order. We accord-
ingly set it aside, and direct the Deputy Commissionqr to recall
the certificates of non-satisfaction from the district Courts to which
they have been sent, informing them at the same time that the
order under which they were sent has been reversed.
**We are informed by the parties that proceedings are still
pending in the District Court of Nuddea under the first-mentioned
order. Although we decline to quash it formally on the grounds
mentioned above, we have yet expressed our opinion that it was
also uUra vires. We think, therefore, that the District Court of
Nuddea should be informed that it should not proceed further in
the matter, and return the record back to the Court of the Deputy
Commissioner of Manbhoom.
"Under these circumstances we think each party should bear
his own costs in this rule, which we make absolute in the terms
set forth above."
Doyne, for the Appellant, contended that under Act X. of 1859,
s. 151, the High Court had no power to set aside the order of the
Deputy Commissioner. And as regards the power of superin-
tendence under the Charter Aet (24 & 25 Vict. c. 104), the Deputy
176 INDIAN APPEALS. * [L.K.
J. a CommissioDer was within his jurisdiction and authority in making
1882 the orders complained of. Prior to Act X. of 1859 such juris-
Bajah diction could not be questioned. At that time regular suits for
^iToH^ arrears of rent were brought before the ordinary Civil Courts:
i>Bo Bee Beg. V. of 1831, repealed by Act X. of 1859. See also as to
9, the power of transfer for execution Act XXXIII. of 1852, ss. 1-7
MooKABJBE. ft^d 11 ; amended in certain respects immaterial to the present
question by Act XXXIV. of 1855, and substantially repealed by
the Civil Proeedtire Code, 1877. The question is did Act X. of
1859, or any subsequent Act take away that power of transfer as
regards rent decrees. It is erroneously assumed by the Eespon-
dent and the High Court that the provisions of Act VIII. of 1859
for transmission of decree for execution (sect. 284, &c.), have no
application to rent suits. But Act VIII. passed on the 22nd of
March, 1859, was extended by proclamation to the district of
Manlhoom in June, 1859 ; and even if that Act did not apply Act
XXXIII. of 1852 at least was applicable to decrees for rent.
Act X. came into force on the 1st of August, 1859, as regards
Manbhoom. Bent suits were to be instituted before the Collector,
and the decrees were to be executed by the Bevenue Courts within
their local jurisdiction. No provision was made for execution of
such decre)e8 out of the local jurisdiction. External executions
continued to be governed by Act XXXIII. of 1852, and sect. 23
of Act X. of 1859 did not take away the powers conferred by the
former Act. The intention of Act X. was to give exclusive juris-
diction to Collectors, but as the execution of a decree was not the
trial of a suit, it was not interfered with. Act X. of 1877 repealed
Act XXXIII. of 1852, but (see sect. 223) renewed the provisions
as to transfer of decrees for execution to another jurisdiction.
Leith, Q.C., and Cotvie, Q.C. ((7. W. Arathoon with them), for
the Bespondent, contended that the order of the High Court was
right. The earliest Begulation on the subject was Beg. I. of
1799. They contended that the legislation referred to did not
intend to give the powers of transfer beyond the local juris-
diction of the ofiScer charged to try the rent suits. No such
power was expressly conferred, and could not be assumed. As
regards Act VIII., the expression " Civil Courts " does not include
VOL. li.] INDIAN APPEALS. 177
the Eeyenne Courts. These latter Courts have special powers J.O.
under sect 92 of Act X. and the sections of Act VIII., which were 1882
intended to apply to them, were incorporated into Act X. itseK, rajah
excluding the section under which a power to transfer is claimed, ^g^^^ '
rSiB BARNBft Peacock :— See sect 284 of Act VIIL] The Court „ i>w>
in question was not then in existence. Act YIII. would only apply v,
to Courts in existence when it became law. [Sib Barnes Pea- mookerjbI.
COCK : — ^See sect. 6.] Two different procedures are provided, that
of Act VIII. apph'es to Civil Courts, that of Act X. to Kevenue
Courts. The latter Act incorporates certain specific sections of
the former, and thereby impliedly excludes those not so incor-
porated — the intention being that each Act should be complete in
itself. Beference was made to sect 67 of Act X. of 1859, also to
sects. 122 and 132. In regard to the suits now in question Act X.
of 1877 has no application.
The Appellant's counsel was not called on to reply.
The judgment of their Lordships was delivered by
Sir Arthur Hobhouse : —
The question presented to their Lordships in this appeal is,
whether the Deputy Commissioner of Manbhoom who has made
decrees in rent suits under the Bengal Bent Aet, No. X. of 1859,
can transfer those decrees for execution into another district.
That officer possesses the jurisdiction conferred on Collectors of
land revenue, and having made decrees in exercise of such juris-
diction has further proceeded to make two orders transferring two
decrees and execution. The High Court, in the exercise of their
power of revision, have substantially quashed his orders ; in point
of form, they have quashed one of the orders and they have stayed
proceedings on another. It is hardly necessary to enter into the
details of the litigation. The High Court have decided that the
Deputy Commissioner, as Judge of the Eent Court of Manhhoorriy
had no authority to pass the orders under Act X. of 1859, or any
other law applicable to rent suits in that district.
A question was raised with respect to the jurisdiction of the
High Court to entertain this question in revision at all. Their
178 INDIAN APPEALS. [L. B.
J. 0. Lordships do not think it necessary to say anything upon that
1882 point, except that they entirely agree with the view taken by the
Bajah High Court of their own jurisdiction.
^Sinoh' ^^® ^*^®^ question depends upon the construction of Act X. of
Deo 1859. That Act was passed for the purpose, among other things,
Jt5AHAIXX)B n n •
V. of transferring suits for arrears of rent to the jurisdiction of the
MooKEBjBB. collectors of land revenue ; and it provided by sect. 23, pars.
4 and 7, that all such suits " shall be cognizable by the collectors
of land revenue, and shall be instituted and tried under the pro-
visions of that Act, and, except in the way of appeal, as provided
in this Act, should not be cognisable in aiiy other Court or by
any other officer, or in any other manner."
It is not contended on behalf of the Appellant that Act X. of
1859 in any express way gave to the collector the power of
transfer which has been exercised. Neither is it contended for
the Kespondent that the words which have been read would,
without more, prevent the provisions of Act VIII. of the same
year from applying to the execution of a collector's decrees beyond
the jurisdiction of his Court. The contention of the Eespondent
is, that there is something in the language of Act X. of 1859
which excludes this power from the jurisdiction of the collector
sitting as the Judge of the Bent Court established by that Act
For that purpose the Eespondent's counsel referred to a number of
sections which may be illustrated by a single one. Sect. 77 deals
with cases in which a third party appears to claim title in a rent
suit ; it gives the collector certain powers of deciding the question
before him, and then contains this proviso : — "The decision of the
collector shall not aflfect the right of either party who may have a
legal title to the rent of such land or tenure to establish his title
by suit in Civil Court." There are a number of other sections of
similar frame ; and the contention is, that the expression " Civil
Court" is used in all those sections in such a way as to shew
that the fSramers of the Act X. of 1859 did not consider that
the Kent Courts established by that Act are Civil Courts.
It must be allowed that in those sections there is a certain
distinction between the Civil Courts there spoken of and the
Kent Courts established by the Act, and that the Civil Courts
referred to in sect. 77, and the kindred sections mean Civil
VOL. IX.] INDIAN APPEALS. 179
Courts exercising all the powers of Civil Courts, as distin- J.o.
guished from the Bent Courts which only exercise powers over i882
suits of a limited class. In that sense there is a distinction rI^
between the terms ; but it is entirely another question whether Nilmoni
the Bent Court does not remain a Civil Court in the sense that it Dbo
IS deciding on purely civil questions between persons seeking «.
their civil rights, and whether being a Civil Court in that sense, mookbbjbb.
it does not fall within the provisions of Act VIII. of 1859. It is "• —
hardly necessary to refer to those provisions in detail, because
there is no dispute but that, if the Bent Court is a Civil Court
within Act VIII. of 1859, the collector has under sect. 284, the
power of transferring his decrees for execution into another
district.
The consequence of holding as the High Court have held is,
that wherever Act X. of 1859 applies, persons seeking their rent
against a tenant who is insolvent in the district in which he is
sued have absolutely no remedy against him, though he may be
possessed of great wealth in another district. No reason has
been assigned, or so much as suggested, why such a distinction
should exist between a person who is claiming a debt founded on
rent and a person who is claiming a debt founded on any other trans-
action. The distinction does not exist in any other part of India,
neither indeed does it exist in those provinces of Bengal in which
Act X. of 1859 has been repealed, and the Bengal Act VIII. of
1869 has taken its place. Therefore although it is not impossible
that the Legislature should have intended to establish in Man-
hhoom and adjacent districts a distinction between claiins for rent
and ail other claims which does not exist elsewhere, it requires
very clear and cogent evidence on the face of the enactments,
to support the conclusion that they really do intend such a
distinction.
That consideration is somewhat emphasised by referring to
Act XXXIII. of 1852, which was an Act passed to fiEbcilitate the
enforcement of judgments in places beyond the jurisdiction of
the Courts pronouncing the same. It provides that with respect
to all Courts — ^not making a distinction between one Court and
another, but with respect to all Courts, — judgments may be
enforced in the manner provided in the Act, viz.^ by a transfer of
Vol. IX. Q
180
INDIAN APPEALS.
[L.R.
J. 0.
1882
Kajah
NiLMOMI
SiNOH
Deo
Bahaboob
V.
Tasakath
MooKKBjn^
the judgment ont of the district of the Judge who pronounces it
into the district of some other judge within whose jurisdiction the
debtor possesses property. It is true that in this Act it is said
that the word ^' judgment " means a judgment in a civil suit or
proceeding. But suits for the recovery of rent are civil suits or
proceedings ; and nothing can be clearer on the face of this Act
than that the Legislature intended that everybody who obtained
a decree in a Court of justice should have a remedy against his
debtor, wherever the property of that debtor might be.
The provisions of the Act of 1852 are substantially repeated in
Act VIII. of 1859 ; and though that Act speaks of Civil Courts,
and not all Courts as Act XXXIII. of 1852 does, yet the inten-
tion expressed is the same, viz., that all Courts entertaining civil
suits of any kind should have this power of transferring their
decrees for execution into another district. We find that
Act XXXUI. of 1852 was repealed in the year 1861, and it is
repealed as being simply obsolete, the only reason expressed for
repealing it being that Act YIII. of 1859 had been passed. If
Act VIIT. of 1859 covered the same ground as Act XXXIII. of
1852, the earlier Act had become useless and might be swept out
of the Statute Book. But the earlier Act would not have become
useless unless the later Act covered the same ground.
In the opinion of their Lordships it is clear that, looking out-
side Act X. of 1859, no intention of making a distinction between
rent suits and other suits in respect to the point now under
consideration can be ascribed to the Legislature.
Turning to Act X. of 1859, the preamble recites that **it is
expedient to re-enact, with certain modifications, the provisions of
the existing law in connection with demands of rent, to extend
the jurisdiction of collectors, and to prescribe rules for the trial of
such questions." It was pointed out by Mr. Doyne that the parti-
cular process now under consideration was not the trial of any
question regarding rent. But when we look at the provisions of
the Act, it is clear that they go beyond the trial of such ques-
tions, and provide for the execution of decrees. At the same
time the scope of the Act appears to be only to provide for the
execution of the decrees of the collector within his jurisdiction.
There is nothing in the Act which provides for any execution
VOL. IX.] INDIAN APPEALS. 181
beyond his jarisdiction. And there is nothing to forbid the J.O.
conclnsion that snch ezecntions are left to the operation of 1882
Act XXXIIL of 1852, or the corresponding portion of Act YIIL rI^I^
of 1859. ^i^^^"
Sect 160 of Act X. of 1859 has a bearing on this qnestion, D«>
That section provides that an appeal from the judgment of a «.
collector or deputy collector shall lie to the zillah Judge. But mootmw^.
the zillah Judge is a Civil Court to all intents and purposes. It
was not disputed that if an appeal went from the collector to the
higher Court, — ^to the zillah Judge or to the High Court, — and
the decree of the collector for rent was there affirmed, it would
become the decree of a Civil Court, which could not be excluded
from the. operation of Act VIIL of 1859. Then this consequence
would follow, that the act of the parties would alter the nature of
the decree; sfi long as the decree remains the decree of the
collector it is incapable of enforcenrent in any other district ; but
let the decree be affirmed by a Court of Appeal, and, though it is
between the same parties for the sapie subject-matter, it then
becomes enforceable in another district. It is very difficult to
suppose that any such result as that could possibly have been
intended by the Legislature.
These considerations lead to the conclusion that the Bent
Courts established by Act X. of 1859 must be held to fall within
sect. 284 of Act VIIL of the same year.
The result is that their Lordships will humbly advise Her
Majesty that the order of the High Court of the 7th of July, 1880,
be set aside and that it be ordered that the rule niai of the 17th
of May, 1880, therein referred to be discharged with costs. The
Respondent must pay the costs of the appeal.
Solicitors for Appellant : Lambert, Fetch, dt Shdkespear.
Solicitor for Respondent : T. L. Wilson.
Q2
182 INDIAN APPEALS. [L. R.
J.a* RAI BALKKISHNA Plaintiff;
1882 AND
Jti^e. MUSSUMAT MASUMA BIBI, MUSSUMAT
SAID-UN-NISSA BIBI, NAWAB MOHA-
MED HOSEIN KHAN, and the COL- ^ Defendants.
LECTOR OF GHAZIPUR on behalf of
THE Court of Wabds
TWO consolidated APPEALS.
[ON APPEAL FROM THE HIGH COURT IN THE NORTH-WESTERN
PROVINCES.]
Beg, LIT. of 1803 — Court of Wards — Incompetency of Ward to contract — Edd-
ing out hy the Court of its Ward as competent,
«
Where an estate has been properly taken possession of by the Court of
Wards under a proper power on behalf of its ward, the latter is incompetent
to bind the same by debts or alienation thereof.
Mohummiid Zahoor Alt Khan v. Musstimat Thakooranee Butta Koer (1)
distinguished.
Where the said Court has given to its wards, whether prudently or not,
a limited authority to raise loans for the purpose of paying antecedent debts,
heldf that that is not such a holding out to the world of the competency of
such wards as would induce any reasonable person to suppose that they had
power to contract debts.
Consolidated appeals from two decrees of the High Court
(May 26, 1879) whereby two decrees of the District Judge of
Benares (21st and 25th September, 1878) were affirmed*
The Appellaut was Plaintiff, and the above-named Bespondents
were Defendants in each of the suits ; the three first named being
made Defendants as having executed the mortgages on which the
Appellant sued, the fourth being made Defendant as representing
the Court of Wards which had assumed, in manner hereinafter
mentioned, the management of the mortgaged estate.
Both Courts concurred in holding that the mortgaged estates
• Present: — Sm Babnbs Pbaoock, Sir Robbbt P. Collieb, Sm Richabd
Couch, and Sib Abthub Hobhouse.
(1) 11 Moore's Ind. Ap. Ca. 468.
VOL. IX.] INDIAN APPEALS. 183
(the date of the mortgage deeds beiog Nov. 1, 1872, and Maich 7, j. O;
1874) belonged solely to the Bespondent Mamima Bibi^ and that i882
as that estate was, at the date of the mortgages, under the ]^
management of the Court of Wards (and had been so since May, Balkrishka
1869) she, Massuma Bibi, was incompetent to bind herself or her Mussuhat
estate by those deeds. In the first of the two appeals both Courts ^
were also of opinion that the sale in execution to the Appellant
of the interest of the original mortgagee was bad for irregularity
under the provisions of Act YIIL of 1859, sect. 249, relating to a
sale in execution of a decree for immovable property.
The facts of the case appear in the judgment of their Lord-:
The Judge of Benares in giving judgment referred for his
reasons to a former judgment delivered by him in an analogous
case, in which, after giving a history of the family from the grant
of the talook to 1868, narrating the assumption of the management
by the Court of Wards, the contracting of the various debts by
Mamma Bibi and her family, he referred to the various regula-
tions and Acts relating to the Court of Wards. That is to say, he
referred to Act XIX. of 1873, sects. 193, &c., and to Eeg. LII.
of 1803 ; and also to Mohummvd Zahoor Alt Khan v. Mussumai
ThaJcooranee BuUa Koer (1). He then proceeded as follows : —
**The Sunwani estate was in 1869, at the urgent represen-
tation of its proprietress, at the recommendation of the Collector,
Commissioner, and Board of Revenue, and with the sanction of
the Lieutenant-Governor, placed tinder the superintendence of
the Court of Wards, and Musmmat Mamma Bibi thus became a
disqualified proprietress. She was well aware what the efiect of
compliance with her entreaties would be, for, in her petition of the
22nd of February, 1869, she prayed that the Court of Wards
would take over charge of her estate, clear it of debts, and thus
save it from falling into other hands ; and she promised that if her
prayer were granted she would in future never do anything with-
out the order of the Court of Wards.
^'It is on all hands admitted that the estate was only brought
under the superintendence of the Court of Wards in 1869, and it
(1) 11 Moore's iDd. Ap. Ca. 468.
J 84 INDIAN APPEALS. [L. B.
J« p. has thus continned up to the present date^ and with reference to
18S2 the law and to the ruling above noticed, I find that Musmmai
^^ Masuma Bibi, being a disqualified proprietress, was of herself in-
Balkbishua competent to alienate or encumber her estate so long as it was
MuBsuMAT under the superintendence of the Court of Wards."
Masuha Bibl
And, further, he held in effect that, though the revenue autho-
rities had known of and sanctioned the obtaining of funds by
Mamma and her family to pay off a particular debt, they did
not give permission to execute the mortgage to the Plaintiff in
question in that suit by which money was raised to pay* off that
debt.
The High Court affirmed the judgment of the lower Court as
** right and sound."
LeUhy Q.C., and Doyne, for the Appellant, contended that it
had not been shewn that the Sunward estate had been duly and
legally brought under the Court of Wards, either in its ordinary
or extraordinary jurisdiction. Mussumat Bibi was a granddaughter
of the grantee of the talook, and under Mohammedan law was abso-
lutely entitled. She was, therefore, competent to bind the estate^
and did bind it by the mortgages in question. The mere fact that
the Court of Wards had taken possession of her estate did not
incapacitate her for contracting or alienating. The disqualification
must be shewn under the Regulation. The law which governs
these suits is Beg. LII. of 1803, which was extended to Benares^
where the mortgaged lands are situated, by Beg. YI. of 1822.
It was a re-enactment, in many of its sections, of Beg. X. of 1793.
Sect 7, however, makes an important addition. Beg. X. of 1793
contemplated the assumption of management by the Court of
Wards only of revenue-paying estates, the proprietors of which
should fall within some one or more of the disqualifications de-
scribed by the rules for the decennial settlements : see sects. 1, 2,
and 3.
Beg. LIL of 1803, though somewhat different (see preamble),
contemplated the same thing. [Beference was then made to
sects. 2, 3, 4 and 7, of the latter Begulation.] No distinction
was drawn by the Courts below between the ordinary jurisdiction
of the Court of Wards defined by the first three of those sections,
VOL. IX.] INDIAN APPEALS. 185
and the extraordinary jurisdiction defined by sect.' 7, which ex!- J.o.
tended it nnder the circamstances mentioned therein to cases of i882
revenae-paying lands acquired by a disqualified proprietor other- "^
wise than by inheritance, and also to non-revenue- paying estates Balkbishha
of disqualified proprietors. It was submitted that these cases Mussumat
could not, upon the undisputed facts, possibly be brought within J!ll.
the ordinary jurisdiction : and further, that no suGScieut foundation
had been laid for the extraordinary jurisdiction. The case of
Mohummud Zahoor Ali Khan y. Mussumat Thahooranee Rvita
Koer (1) is in several passages opposed to the conclusion at which
the Judge arrived, and related wholly to the ordinary jurisdiction.
As regards the question decided in the first appeal only, viz.,
that the sale in execution was illegal, sect. 249, Act VIIF. of 1859,
not having been complied with in regard to the affixing of the
written notification and the expiration of thirty days before the
sale, and execution having been sued out in Benares instead of
Ohazipur, where the land lay : it was contended that that ques-
tion ought to have been raised by a distinct allegation and issue.
Even if a sale of a mortgage security on land is an interest in land,
yet no objection to the alleged irregularity was made by the judg-
ment debtor, who was alone competent to make it, and the sale
consequently became irreversible under sect. 252, 256, 257. But
in point of law a sale of a mortgage security not yet due is but
the sale of a debt with a future and contingent right of enforcing
the same against the land, and is not the sale of such a *' right or
interest in land " as is contemplated by sect. 249 : see Shamsumder
Das V. Bohun Buhsh (2). See also Mvssmfiat Bhawani Kuar v.
Gidab Bm (3).
Sib Eobert P. Collieb : — Their Lordships only desire to hear
counsel for the Eespondent on the following points : (1.) Whether
the Court of Wards assumed the possession and management under
sect. 7 of Reg. Lll. of 1803. (2.) Whether the acts of the Court
were done irregularly.
Cowie^ Q.C., and Woodroffe, for the Respondent, the Collector of
(1) 11 Moore's Ind. Ap. Ca. 468. (2) 6 N. W. H. C. R. 252.
(3) Ind. L. R. 1 Allah. 348.
186 INDIAN APPEALS. {h. XL
J. a Ohazipw, contended that there was no distinction taken in the
1882 Courts below between the revenue-paying and non-revenue-paying
]^, lands^ and that the whole talook had been taken in charge by the
Bal^ishna o^^rt of Wards under Eeg, LII. of 1803. Tlje evidence shewed
MussuMAT that the charge of the Masuma Bibi*8 estates was validly committed
— ' to the Court under the orders of the Government at her own
request, and on the ground of her incompetence to manage and pro-
tect them. She was found by both Courts to be legally disqualified
to contract debts or to alienate the estates. And the evidence
shews that the Appellant had full notice of that disqualification.
The case in 11th Moore is distinguishable from this, for there the
Court of Wards treated the owner to competent and had intended,
but for the Mutiny intervening, to transfer the estate to her.
The incompetent ward, on whose behalf possession had originally
been taken, was dead, the Court continued to hold on behalf of a
female who was competent, and who had acquired title by in-
heritance, and it was held that mere possession by the Court did
not invalidate her acts. The Court declined the management.
Leith, Q.C., replied.
The judgment of their Lordships was delivered by
Sib Robert P. Collier : —
Two suits have been here consolidated, brought by Bai Bal*-
hrishna against MmmmcU Masvma Bihi, her daughter, her
daughter's husband, and the Collector of Ohazipur on behalf of the
Court of Wards.
The plaint in the first suit states that the claim is under a
deed of mortgage executed on the Ist of November, 1872, by the
Defendants 1, 2, and 3, that Ks.67,000 were borrowed of one
BishesJmr Pershad, and that as security for that amount the
Defendants mortgaged a 2-annas share out of 16 annas of talooka
Sunwani, It then states that the debt due to Bisheshur was
purchased under a sale in execution of a decree by the Plaintifi^,
who obtained a sale certificate, and thereby stood in the place of
BisheshuTf and ^' that inasmuch as the Simwani estate belonging
to the Defendants is under the superintendence of the Court of
Wards^ and as the Collector of Ghazipv/r is the manager thereof
VOL. IX.] INDIAN APPEALS. 187
on behalf of tbe Court of Wards, the Collector has also been made J. 0^
a Defendant.'' The Plaintiff prays judgment for the amount 1882
claimed. "bI^i
The plaint in the second suit is very similar. It is upon a Bai*^«hha
mortgage bond for B&39,900, executed, on the 7th of March, Mussumat
1874, by the same persons, to Bat Narain Dm himself. This
plaint also contains a statement that the Sumoani estate is under
the control of the Court of Wards; and that therefore the
Collector, who was in the management of it, is made Defendant
A written statement was put in on behalf of the Court of
Wards in the first suit, which stated, ^ That talooka Sunwani is
the sole and exclusive property of Maswna Bibiy* which is now
admitted; and that she was a ward of the Court, and had no
power to convey any portion of her estate by way of mortgage,
that the property against which the Plaintiff seeks to enforce his
lien belongs to No. 1 only, — that is, Maavma Bibi, — not to the
other Defendants ; and that the debt sued for was not borrowed
with the consent or knowledge of the Court of Wards.
The material issues framed are, "Who is the proprietor of
talooka Snnwani, and have Nawab Mohamad Sosein Khan and
Musmmuit Said-id'Niasa Begum any interest in this talooka or the
properties in dispute?" It is found they had not. "Was the
proprietor of or were the persons who may be found to possess an
interest in the property in dispute, legally competent to convey
that property by mortgage or sale while the estate was under the
superintendence and management of the Court of Wards ?" *' Is
the Plaintiff, as auction purchaser of the deed of mortgage, com-
petent to sue ? Was the deed executed with the knowledge and
consent of the Court of Wards ? If the deed is not valid, are
Maauma Bibi, Said-id-Nissa Begum, and Nawab Mahomed Eosein
Khan, or any of them, liable for the amount claimed, or for any
other amount ?"
The first suit was decided on what may be called a technical
point. On issue 4 it was held that the Plaintiff was not the
auction purchaser of the deed of mortgage, and therefore could
not sue ; and the decision was therefore against him. The Judge
appears also to have found the other issues very much as they
were found in the other case.
188 INDIAN APPEALS. [L.B.
J. 0. With respect to the second salt the issues are very much the
1882 same, and the findings are in favour of the Defendants upon all
j^ the material issues. They are in their favour upon the issue that
Balkbishka ijJj^ Defendants, who may be reduced to one, — viz., Masuma JBiMj —
MuBsuMAT were not competent to convey an interest in the property in
* dispute, and that the deeds sued upon were not known to the
Court of Wards. Under these circumstances, in the second case,
^he Judge of the first instance dismissed the suit as against the
Collector of the Court of Wards and as agabst Mamma Bibi^ but
granted the relief claimed against the daughter and the sou*in-]aw,
who were not under the Court of Wards. The two judgments have
been confirmed in every respect by the Court above, and the
appeals are from the judgments of that Court.
It has been contended on the ptut of the Plaintifis in the first
place that the estate in question, which seems to have been a
large estate, was not properly put under the jurisdiction of the
Court of Wards, so as to destroy the power which Mastmui Bibi
would have had of charging it; secondly, that even assuming
that it was, still that the conduct of the Court of Wards has been
such in lowing her and her son-in-law to manage the estate ad
to hold them out to the public and to creditors as capable of
charging it.
It now becomes necessary to refer to some of the provisions of
Beg. LII. of 1803, by which the Court of Wards was established.
By sect. 2, " The Board of Bevenue is hereby constituted a Court
of Wards for the superintendence of the persons and estates of
zemindars and other actual proprietors of land paying revenue to
Government who are or may be disqualified for the management
of their own lands, in consequence of their coming under any of
the descriptions of disqualified landholders specified in sect. 3 of
this Begulation." Those disqualified landholders are in the first
place females, who are treated as disqualified if so reported by
the Board of Bevenue, unless the Governor-General in Council
declares them competent; and there is another class of dis-
qualified landholders consisting of minors, idiots, lunatics, and
persons of bad character. This Act provides in the first place
only for the case of proprietors of lands paying revenue to the
Crovemmenti but the 7th section goes further, and provides '^ that
VOL. IX.] INDIAN APPEALS. 189
it shall be competent to the Goyemor-Qeneral in C!oancil to J.G.
eommit to the oharge of the Gonrt of Wards any estate paying 1882
revenue to Government, being the sole property of any disqualified b!]u
person or of any two or more persons, both or all of whom may Bal^bmhka
be disqualified, although the same shall not have descended to Musbuuat
such person or persons in the regular course of mheritance ; and
then it goes on to say — ** and also any lakheraj lands belonging to
such proprietor or proprietors, whenever the same shall appear t%
him for the interests of Government and the proprietor or pro-
prietors," and so on% There are further provisions with respect to
reports to be made to the Government, the appointment of a
manager, and a number of details as to the duties of that manager,
and the staff of assistants which he shall have, and so forth. Then
by sect. 19 it is stated that the manager shall have 'Hhe exclusive
charge of all lands, malguzarry or lakheraje, as well as of all
houses, tenements, goods, money, and moveables of whatever
nature belonging to the proprietor whose estates may be com*-
mitted to his charge, excepting only the house wherein such pro-
prietor may reside, the moveables wanted for his or her use, and
the money allowed for the support of the proprietor/* &c. So
that according to the provisions of tbis section if the Governor-
General in Council, or the Lieutenant-Governor who now exercises
his powers, is of opinion that it would be for the benefit of the
public or the estate to include any lakheraj lands under the
management of the Court of Wards, he may do so ; and then the
whole estate and effects, real and personal, of the proprietor are
vested in the Court of Wards.
Undoubtedly, the evidence in this case is somewhat meagre and
unsatisfactory as to/ the proceedings of the Court of Wards, both
as to the circumstances under which they took possession of the
estate and their dealings with it afterwards. What evidence there
is consists mainly of what will be now referred to. It appears
that on the 8th of October, 1868, the Collector of Ghazipur wrote
a letter to the Comniissioner of Benares, with a view, no doubt, of
its b^ing transmitted to the Board of Revenue, to this effect : —
^ 1 have the honour to Request that you will obtain the sanction
of the Board of Eevenue to my placing the estates of Masumct
Begwnh and Mvssumat Saed-un-nima Begvm (that is, the mother
190 INDIAN APPEALS. CL-B.
J. c. and the daughter) under the Court of Wards. These estates are
1882 held rent free ; they were granted on the usual fees to Mtumhi
"^ 8hariyat-ul-lah Khan in a,d. 1784, for good services rendered by
Balkrishna him, and have been in his family ever since. Lately, owing to the
MussuMAT estates being in the hands of women, they have fallen into great
^^^ ^^ disorder, large debts have accrued, and unless some steps are taken
this fine property will, I fear, soon be split up and come into the
^ssession of outsiders." He recommends accordingly, with a
view to the preservation of the property, that it shall be taken
into the custody of the Court of Wards. The next document is
one of the 24th of February, 1869, in which the lady herseK and
her daughter pray that the estate may be put under the Court of
Wards; and they make a proposal for the payment of some
revenue to the Government with a view of authorizing the Govern-
ment to take that step. The next document is a letter, No. 1107,
of the 18th of May, 1869, from Mr. Stmsonj secretary to the
Government of the North-Western ProvinoeSy to the secretary of
the Board of Eevenue, in which he says that he forwards an
opinion of the Government Advocate on the proposal of the Board
that the 8v/nwani talooka in pergunnah Bdlia, zillah Ohazipur, be
placed under the management of the Court of Wards. Then he
says : " I am to observe that to receive a small payment as land
revenue simply for the purpose of bringing the property within
Beg. LII. of 1803, is a proceeding to which the Lieutenant-
Governor would have been unwilling to resort. But on a reference
to the agents of the family who are now at Allahabad, it has been
alleged by them that the family are in possession of a small
assessed property. If this be the case, the Board are authorized
to assume the property KhaUa and Jogeer under their control, as
the Court of Wards." The Government, therefore, put the con-
struction upon the 7th section, which has been before read, that
if any part of the property pays Government revenue, then there
is a power to include all the lakheraj property ; and this letter
includes an opinion from the Government Advocate very much to
the same effect.
We are informed incidentally of what was done by a letter of
the 22nd of July, 1875, from the secretary to the Government of
the North-Western Provinces to the secretary of the Board of
VOL. IX.] INDIAN APPEALS. 191
Bevenne of the North-Western Provinces: — ^**In reply to your J. a
letter, dated the 24th of June last, I am directed to say that the 1882
Board have correctly interpreted the grounds on which the s^
Government in G.O. No. 1107, dated the 18th of May, 1869"— ^^^^^
which is the last letter referred to — ^''authorized the Board to Mussumat
assume charge of the Simwam estate m the Ohaztpur district as
the Court of Wards, viz., on account of the incompetency of the
proprietors to manage it." We have here, therefore, a statement
that this estate was assumed on the ground of the incompetency
of Masuma Bibi. Then the letter goes on to say : — '' The orders
as contained in Government Order No. 1107, dated the 18th of
May, 1869, were made subject to the condition that some portion
of the estate was assessed to revenue. The same condition was
subsequently referred to in Government Order No. 1110 " — which
we have not— "dated the 20th of May, 1S69. The Board, in
their docket, No. 894 " — which is not in the record — " dated the
18th of August, 1869, reported that the condition required to
make the orders of 20th of May, 1869, absolute was satisfied."
Then it goes on to say : " The proprietors are still deemed by the
Government incompetent to manage their estate. The Board
may therefore carry out their proposal to sell a portion of the
talooka to discharge the debts contracted." We have from this
letter information that the Government made some inquiries, and
in th« result were satisfied that Masuma Bibi had some rent-pay-
ing land, and if so, the condition under which they directed her
estate to be put under the management of the Court of Wards
was complied with ; and further it is here stated that the estate
was put under the management of the Court of Wards because
she was incompetent, and that she was so considered up to that
time, namely, 1875. Their Lordships understand that the whole
of Masuma Bibis property, including a house in Benares^ was
taken under the management of the Court of Wards.
That being so, this case is distinguishable from a case which has
been quoted from the 11th volume of Moore^s Indian Appeals,
page 468, in which under certain circumstances it was held that^
although an estate was actually in possession of the Court of Wards,
still the lady to whom it belonged, BuUa Koery might be capable
of contracting debts. The ground on which this case was decided
192 INDIAN APPEALS. [L. R,
J. 0. appears from what is said in the judgment delivered by Sir JameB
1882 ColviUy at page 483 of the volume referred to : '* The evidence in
^^ this case not only fails to shew that the necessary reports of the
' Balkbishna Collector and of the Board of Eevenue were made; it also, though
MussuMAT not uniformly consistent, goes far to negative any intention on
MasumaBibi. _ ^ , .1 ...,,, -Tk »r
the part of the revenue authonties to treat RuUa Koer as a dis-
qualified proprietor or a person incompetent to manage her affairs.
It shews that when her title was attacked in 1855 they declined
to act as a Court of Wards in its defence, but left her to sue or be
sued as a person mi jwris^ on her own responsibility and at her
own cost. It further shews that in 1856, and in the very month
in which she is alleged to have executed the bond, they had taken
all the necessary steps towards putting her into the full possession
and enjoyment of the talook, as a proprietor competent to its
management, on her entering into proper engagements for the
payment of the Government revenue/' In that case the estate
had been put under the Court of Wards in the lifetime of the
sifter who was incompetent. It had come by inheritance to Ba/M
Koer, who, according to that part of the judgment which has been
quoted, was not incompetent, and to whom the Board intended to
transfer the estate, and would have done so but for the Mutiny.
That case is altogether distinguishable from the present, where
the Court of Wards did hold the lady to be incompetent ; where,
so far from leaving her to sue and to be sued, they now take her
part and protect her ; and further, where they have assumed the
management and retain it to the present day, holding her to be
incompetent.
It now remains to deal with what may be called the substantial
case on the part of the Appellants. They say that, assuming
that the estate was properly taken possession of by the Court of
Wards under a proper power, still that the conduct of the Court
of Wards when they had taken possession was such as to hold out
Mamma Btbi to the world as capable of contracting, and that the
Flaintiffisi have been induced thereby to contract with her. It is
said that the Court of Wards have not assumed possession of the
property in the sense of taking the rents and profits at all, and
that they have appointed no manager. Undoubtedly, as before
observed, the evidence on these subjects is meagre, but their Lord-
VOL. IX.] INDIAN APPEALS. 193
ships by no means infer that the lady or her son-in-law and J. 0.
daughter have remained in possession of the rents and profits all 1882
along ; and with respect to a manager, whether or not a regular ^^i
manager was appointed does not very dearly appear, but in the Balkmshna
statement of the plaint the estate is said to be under the manage- MusauMAT
Masuua Bjbi.
ment of the Court of Wards, and appears undoubtedly in fact to —
hare been so.
The argument last adverted to appears to their Lordships not
to have been set up in either of the Courts below. There is no
issue addressed to it ; the judgment of the Court below is not ad-
dressed to it ; and even in the petition of appeal the point is not
taken. There is, indeed, in the second ground of appeal, this
statement : *^ The manner, the object for which, and the state of
things under which the estate was brought under the management
of the Court of Wards did not prevent the owner or owners of the
estate from raising debt by the hypothecation of the estate."
That refers to the object and the state of things under which the
estate was brought under the management of the Court of Wards ;
but it does not set up the case that the Court of Wards, after it
was brought under their management, so conducted themselves as
to render this lady competent. She having been incompetent
when they took possession of the estate, could any conduct of theirs
in the first place, render her competent ? in the second place, has
their-conduct been such that they are estopped, as it were, from
disputing that she was competent ? Those seem to be the ques-
tions. Assuming, however, that those questions, though not dis-
tinctly raised in the issues or in the judgments of the Court, or in
the grounds of appeal, could now be gone into, their Lordships
are of opinion, that, as a matter of fact, no such case is made out
on the part of the Appellants. It does indeed appear that the
Court of Wards allowed this lady and her daughter and son-in-
law more freedom of action than probably they ought to have
had or than was consistent with the regulation which has been
quoted. The circumstances under which they were permitted that
liberty of action appear upon the record. In a petition of the 4th
of January, 1872, by the son-in-law, who is called the Nawab of
Swnwani, there is this statement : ** The rent-free jagir of talooka
Sunwani has been, at our request, placed under the management
194 INDIAN APPEALS. [L. E.
J. 0. of the Court of Wards. Mr. Nieheh holds a conditional deed of
1882 sale of the said property, the term of which has expired on the 4th
"^ of September, 1871. As it is impossible to liquidate the debt
Balkbtshna without raising a fresh loan, which we have arranged for with
MussTJMAT certain bankers of Benares^ who have already paid into the Bank
" of Bengal a sum more than covering the debt in question, we are
therefore placed under the necessity of asking your written per-
mission " — this is, of the Court of Wards — " for contracting the
mortgage loan, so that we may be enabled to complete the requi-
site transaction with the bankers, and the property be thereby
saved from the liability of the deed of conditional sale. Peti-
tioners pray for the issue of early orders, as they will be put to
great expense for payment of interest pending receipt of permis-
sion." That petition is considered, and this Order is made:
" Forward a copy of this letter to Masuma Begum, and request
her to arrange that the money required for liquidation of the debt
as claimed by Mr. Smythe, attorney for Niokds, may be at once
deposited in the Bank of Bengal" It appears then that for the
purpose of liquidating a debt of large amount to Mr. JVfoMs,—
incurred antecedently to the assumption of the estate by the
Court of Wards, — the power was given to borrow considerable
sums of money, a power which probably ought not to have been
given ; but at the same time it is clear from the petition that the
Petitioner recognised the estate as being under the Court of
Wards, and was fully sensible that without express written per-
mission from them no transaction of the kind could be effected.
Probably the Court in granting this permission acted under
sect. 23 of Beg. LII. of 1803, in which, among other things,
it is said : " The circumstances of all such debts," — that is, ante-
cedent debts, — " however, shall be immediately reported to the
Collector, and by him without delay to the Court of Wards, with
his sentiments on the best mode of satisfying the same, for their
instructions, previous to any payment being made by the manager
in discharge of them." It would seem that the Court thought
that the best mode of dealing with this debt, incurred antece-
dently to their jurisdiction over the estate, was to allow the lady
herself and her daughter and son-in-law to contract fresh loans.
Upon this permission they did contract them, and it appears that
VOL. IX.] INDIAN APPEALS. 195
they entered into four bonds, one of them in favoar of the present j. c.
Plaintiff, Bat Narain Das, dated the 25th of January, 1872, for 1882
Rs.17,000, and three others to other persons whose names are not "^
material. The terms of these bonds are set out, and it appears Balkbishna
that in the bond given to this Plaintiff, there is this statement : Mubsumat
^' That as the talooka Simwani was held by the Court of Wards^
they were forbidden by law to borrow deb't without the sanction
of the Court ; they had obtained a written permission of the Com-
missioner, and executed the deed of simple mortgage." There-
upon the present Plaintiff advances this money, and receives a
bond, for the purpose of paying off an antecedent debt, which
debt is paid off, and the Plaintiff is paid also ; and on the face of
this bond he has express notice that there is no power on the
part of the lady to contract without the written permission of the
Court of Wards, which has been given. That being so, when we
come to the mortgage on which he sues, — ^and we are here deal-
ing with the mortgage given to himself, — this previous mortgage
to him is recited, which contains a statement of the want of power
in the lady to contract. He had, therefore, express notice when
he entered into the mortgage of the 4th of M^^rch, 1874, that she
was acting without authority, and when he took it he certainly
took the chance which every man must do who deals with a
person who he knows has no authority to contract.
It appears, then, to their Lordships that the giving on the part
of the Court of Wards, whether prudently or not, of this limited
authority to raise loans for the purpose of paying antecedent debts,
was not such a holding out to the world of the competency of
Mamma BiM, and her daughter and son-in-law, as would induce
any reasonable person to suppose that they had the power to con-
tract debts ; and that even if it were so, the Plaintiff at all events
knew the true state of the case.
The case against Bai Narain Das on the second bond on which
he sues is perhaps somewhat stronger than that on the first, because
the first was given to BishesJmr; and the question would be what
knowledge Bisheshur had. But when their Lordships consider the
necessary notoriety of a large estate being put under the manage-
ment of the Court of Wards, when they consider further that
express notice was given to all creditors of the estate being under
Vol. IX. R
Balebishna
196 INDIAN APPEALS. [L. R.
J. C. the management of the Court of Wards as early as December,
1882 1869, that part of the estate was in Benares and that the family
rai resided in BenareSy and that Bisheshur was a banker of Benares,
they cannot doubt that he must have been perfectly well aware, as
MusBUMAT jg^^' Narain Das himself must also have been, that this lady had
MA8UMA BiBT. '
not the power to contract.
Under these circumstances their Lordships are of opinion that
the judgment in the second case, that of the bond of the 4th of
March, 1874, is right.
With respect to the first case, their Lordships think the judg-
ment dismissing the suit on the ground that the Plaintiff was not
the purchaser of Bisheshwr^s mortgage, on the ground of the sale
being irregular, and of the Court not having jurisdiction to exe-
cute the decree, was wrong. The irregularities referred to, if they
existed, were cured by the certificate of sale; and though the
Court may not have had jurisdiction to attach lands out of its
district, it had jurisdiction to sell in execution the right to enforce
the bond. But for the reasons which they have given with respect
to the second case, they are of opinion that the judgment ought to
have been the same as in thq,t case, that is, a judgment dismissing
the suit against the lady and against the Court of Wards, but
giving it effect against the daughter and her husband. The judg-
ment in the first case must be so far modified.
In the result their Lordships will therefore humbly advise Her
Majesty that in Appeal No. 121 of 1878, the decree of the High
Court of the 26th of May, 1879, ought to be affirmed so far as it
relates to Mussumat Masuma Bill and the Collector of Ohazipar^
on behalf of the Court of Wards, and to the property alleged
to have been mortgaged, and to be reversed as to the other
Defendants; and that it be declared that Mussumai Said-tm-
Nissa and Nawab Mohamed Hossein Khan are liable to pay the
amount of principal and interest due on the bond in original suit
No. 4 of 1878, such interest to be computed at the rate of nine
annas per cent, per mensem from the date of the bond to the date
of the Order of Her Majesty on this report, and at the rate of
6 per cent, from the date of the Order to that of payment ; that
the case be remitted to the High Court with directions to cause
the principal and interest to be computed in accordance with the
VOL. IX.] INDIAN APPEALS. 197
above directiong. And that in Appeal No, 122 of 1878, the decree J, 0.
of the High Court ought to be affirmed, 1882
The Appellant must pay to the Collector of GhazeptAr, on behalf ^Ii
of the Court of Wards, his costs of these appeals to Her Majesty Balkbishna
in Council, after deducting therefrom the costs of the Appellant Mussumat
,, , .. , . ,.1 1 , MasumaBibi
caused by the opposition to the motion to consolidate the appeals.
Solicitor for the Appellant : T, L. WHson.
Solicitor for the Bespondent the Collector of Ghasdpur :
H. Treasure.
MISIR BAGHOBARDIAL Plaintiff; J. a*
AND
1882
EAJAH SHEO BAKSB SINGH .... Defendant. June 29;
July 15.
ON APPEAL FROM THE COURT OP THE JUDICIAL COMMISSIONER
OF OUDH.
Bes judicator—Act X. o/1877, sect, 13.
The words " Court of competent jurisdiction " in sect. 13 of Act X. of 1877,
mean a Court which has jurisdiction over the matter in the subsequent suit
in which the decision is used as conclusive ; in other words, a Court of con-
current jurisdiction, t.c, concurrent as regards the pecuniary limit as well
as the subject-matter.
In a suit for principal (Rs.12,000) and interest upon a bond brought in the
Court of a Deputy Commissioner, it was pleaded that in a suit for interest
only brought in the Court of an Assistant Commissioner, it had been held
that Rs.4790, and not Rs.12,000, was the amount of principal and interest
which had been decreed thereon accordingly : —
Beldy that this was not res judicata as regards the principal amount of the
bond. The pecuniary limit of the Assistant Commissioner's jurisdiction
being Rs.5000 he could not effectually bind the Plaintiff as regards the
amount of the bond.
Appeal from an order of the Judicial Commissioner of Oudh
(Nov. 22, 1879), aiBrming an order of the Deputy Commissioner of
Sitapur (Feb. 25, 1879), whereby the Appellant's suit was dis-
missed on the ground that it was barred as res judicata under
sect. 13 of Act X. of 1877.
• Present: — Sib Babkeb Peacock, Sie Robert P. Collieb, Sib Richard
Couch, and Sir Abthub Hobhousb.
R 2
198 INDIAN APPEALS. [L. R.
J. G. The facts of the ease are stated in the judgment of their Lord-
1S82 ships.
MisibRagho- ^^^ ^^^^ ^^ brought on the 7th of December, 1878, in the
BABDiAL Court of the Deputy Commissioner of Sitapur to recover the prin-
Rajah Shbo cipal sum of Rs.12,000. due on a bond dated November, 21, 1875,
..-» ' and executed by the Bespondent, and a sum of Bs.2435 interest
due on that amount from the 2l8t of October, 1877, to the 7th of
December, 1878.
For the defence it was contended that under the circumstances
stated in their Lordships' judgment the suit ought to be dismissed
as barred by s. 13 of Act X. of 1877, and an issue was framed to
that effect.
Both Courts gave judgment in favour of the Bespondent ; that
of the Judicial Commissioner being to the following effect : —
« On the 7th of December, 1878, the Plaintiff, Appellant, insti-
tuted the present suit by a plaint in which he alluded to the
previous suit for interest, and order of dismissal agaiust which his
undecided appeal was then pending, and reciting that twelve
separate instalments had become due since the 20th of October,
1877, and that the principal sum with all interest according to the
bond had become due on the 20th of November, 1877, and he
prayed for a decree for Bs.14,435 : 10a. principal, and interest and
other sums subsequently accruing.
"The Deputy Commissioner found that the decisions in the
former case were by a competent Court, and had settled, as be-
tween these parties, the issue that only Bs.4790 of the principal
sum mentioned in the bond had been paid and received, the pay-
ment of consideration having been substantially and directly in
issue in the former suit. He therefore dismissed the claim.
" The Plaintiff appealed, but as Colonel MacAndrew, who decided
the former suit, was still presiding over the Divisional Appellate
Court, the Appellant moved this Court to transfer the appeal to
some other competent Court under sect. 25 of Act X. of 1877.
And on the 21st of June, 1879, this Court, with reference to
sect. 32 of Act XXXIL of 1871, transferred the case to its own
file, and the appeal has now been heard.
" It is urged that, though the Assistant Commissioner in the
former suit had jurisdiction in respect to the interest then claimed
VOL. IX.] INDIAN APPEALS. 199
and it was proper that he should incidentally go into the ques- J. 0.
tion, whether the bond was genuine and valid, yet he could not 1882
decide on the bond itself, and his decision would only affect the misibrIgho-
issue as to interest. The money value of the bond would entirely b^^^^
prevent his having jurisdiction in respect to it, and neither the Rajah Shbo
action nor consent of parties can give any Court jurisdiction when
by statute the Court has it not.
" In this case, to use the words in Archard v. Norman (I), quoted
in Sukee Monee Delia v. Euree Mohun Mookerjee, and others,
of the 2l8t of July, 1866 (2), on which both parties rely, "to
prove the interest due it was necessary to prove the debt;"
and the amount of that debt was beyond the jurisdiction of
the Court of the Assistant Commissioner under sect. 11, Act
XXXII. of 1871, so that the Lower Court might say, "before
I can hear the case I must be satisfied that the principal is due,
I must inquire if there is a sum of Bs.l 2,000 owing, and that at
once ousts the Court of its jurisdiction," which only extends to
suits where the amount or value does not exceed lis.5000 — five
thousand.
" But the decision of the High Court, Caleutta^ was that the true
test is : Is the sum payable and demanded in the action within
the Court's jurisdiction as to amount ?
^* And in this case the sum demanded was within the Court's juris-
diction, and the principal sum could not be recovered at that time.
** In my opinion it would have been better if the Commissioner,
on the 9th of March, 1878, had not remanded the case to the
Assistant Commissioner, but it must be remembered that this
order was made on the appeal of the Plaintiff then and now
Appellant. And I cannot say that it conferred on the Assistant
Commissioner a jurisdiction which he had not, and is therefore
void, for the High Court, in the above quoted case, have aflSrmed
that the view taken by the referring officer was correct, and that
view was that * Whatever the amount of the bond, and whatever
may be the line of defence adopted,' if the sum sought to be
recovered does not exceed the Lower Court's jurisdiction as to
amount it has jurisdiction in the matter.
"Both the Court of the Assistant Commissioner and that of the
(1) I. a C. Chron. 38. (2) 6 Suth W. R. Civil References, p. 6.
200 INDIAN APPEALS. [L. B.
J. 0. Commissioner had concurrent jurisdiction as to description of the
1882 matter to be adjudicated, though the Lower Court's original juris-
MisibRagho- ^ic^on was restricted by certain pecuniary limits.
BABDiAL i« This is a very diflferent case to No. 374 of 1865, Mussumat
Rajah Sheo Edtm V, Mmmmat Bechtm (1), which decided that when a Col-
' lector's rent Court ruled as to the genuineness of a bond pleaded
as a set-off to a demand for rent, the ruling was not conclusive,
because he had not jurisdiction in respect to such a description
of suit as the genuineness of a bond, although his ruling as to
rent due was conclusive, and for the purpose of determining that,
he had the power to enter into the question whether the bond was
genuine or not, and although the amount of the bond was within
the pecuniary limits of his jurisdiction.
^' The question of the genuineness of the bond and its validity
having thus been put directly and substantially in issue between
these parties before a Court of competent jurisdiction to decide
the cause before it, it was heard and it was determined against
the present Appellant, and that decision was upheld in appeal by
a judgment which admittedly has become final, and I must find
that no Court had power again to try that issue. Such procedure
is prohibited by sect. 13, Act X. of 1877."
Leith, Q.C., and C. W, ArcUhoon, for the Appellant^ contended
that this suit was not barred under the section in question. The
former suit was for a balance of interest, Bs.l665, in a Court
the limit of whose jurisdiction was Its.5000. That Court's juris-
diction was not competent to decide the question which arises in
this. The jurisdiction was not concurrent with the Deputy Com-
missioner as regards pecuniary limit, and although it incidentally
decided as to the amount of the bond, it could not usurp jurisdic-
tion to give a binding decision upon that question so as to deprive
a competent Court of the power to try it. Beference was made
to Sukee Monee Debia v. Swree Mohtm Mookerjee (2) ; MussumcU
Edun V. MvssrnncU Bechim (1); Anantha Naraiyanappaiyan v.
Aiyan and others (3) ; Aradhun Bey v. Odam
(1) 8 Suth. W. R. C. R. 175, &c. (2) 6 Suth. W. R. Civil References, p. 6.
(3) 2 Madras, H. C. R 469.
VOL. IX.] INDIAN APPEALS. 201
Hoasein (1) ; Mohima Chunder Chuekerlmtty v. Bajeoomar Chucher- J. 0.
butty (2) ; Barrs v. Jaehson (3) ; The IhchesB of Kingston's Case, 188S
and notes thereto (4); Chunder Coomar Mundul v. ^tmwea njigm ragho-
Khanum and others (5). babdial
Rajah Sheo
The Eespondent did not appear. Baksh Singh.
The judgment of their Lordships was delivered hy
Sir Kichabd Couch :—
The suit which is the subject of this appeal was brought upon
a bond, dated the 2l8t of November^ 1875, given by the Respon-
dent for Ss.12,000, stated therein to have been borrowed from the
Appellant, the principal to be repaid within three years, and
interest to be paid monthly at the rate of Bs.l. 8a. per cent, per
month. The three years having expired, the plaint was filed on
the 7th of December, 1878, in the Court of the Deputy Commis-
sioner of Sitapur. The Defendant (the now Bespondent) pleaded
*^ want of eonsideratioD, and that in a previous suit for Bs.l665,
interest on this bond, the issue regarding consideration was decided
in favour of Defendant, the Court deciding that Defendant had
received only E8.4790 and not Rs.12,000," which decision was
upheld on appeaL Upon this a preliminary issue was framed by
the Court as follows: — "Is the issue regarding consideration a
res judicata (Sect. 13, Act. X of 1877) between **the parties?"
The decision of the Deputy Commissioner upon this issue was in
favour of the Defendant, and judgment was given for the balance
found to be due of the principal sum of Bs.4790 and the interest
thereon. From this decree there was an appeal by the Plaintiff
to the Judicial Commissioner of Oudh, who dismissed it, and the
Plaintiff has appealed to Her Majesty in Council from that
dismissal.
The suit for interest was brought in December, 1877, in the
Court of the Assistant Commissioner of Sitapur ^ it being alleged
that Rs.4140 was due for interest on a bond for Rs.l 2,000, and it
being admitted that the Defendant had paid Bs.2475, the balance
(1) 8 Suth. W. R. 487. (3) 1 Phillips Ch. 682.
(2) 10 Suth. W. R. 22. (4) 2 Sm L. C. notes, 778.
(B) 11 Beng. L. R. 434.
202 INDIAN APPEALS. [L, B.
J. 0. of B8.1665 was claimed. The jurisdiction of the Assistant Com*
1882 missioner was limited to suits where the amount or value of the
MibirBagho subject-matter did not exceed Es^SOOO, and the Defendant objected
B^KD^^ that, if the PFaintiff insisted on the validity of the bond, the case
Bajah Sheo could not be tried before him. The Assistant Commissioner held
, — * that the case was beyond his jurisdiction, but upon an appeal to
the Commissioner, his order dismissing the suit was cancelled, and
it was remanded for trial on the merits. The ease was then tried
by the Extra Assistant Commissioner, and evidence having been
given on both sides, he found that the principal sum due on the
bond was Bs.4790, and that the Plaintiff was entitled to interest
thereon, and the Plaintiff having admitted the receipt of Bs.2475
on account of interest, which exceeded the sum he found to be due
for interest by R8.822. la, Q^?., he dismissed the suit. An appeal
from this decision to the Commissioner was dismissed, and an
application made to the Judicial Commissioner to allow an appeal
from that order was rejected by him.
The question now before their Lordships depends upon the
construction of sect. 1 3 of Act X. of 1877. Before considering
that question, it will be well to refer to the state of the law in
India when that Act was passed. Sect. 2 of Act VIII. of 1859,
the Code of Civil Procedure for which Act X. of 1877 was sub-
stituted, provided that the Civil Courts should not take cognizance
of any suit brought on a cause of action which should have been
heard and determined by a Court of competent jurisdiction in a
former suit between the same parties or between parties under
whom they claim. It is clear that this section would not have
applied to the present case, the causes of action in the two suits —
the non-payment of interest in one and the non-payment of prin-
cipal in the other — being different. In fact, when the first suit
was brought the cause of action in the second had nat arisen.
But independently of this provision in the Code of Procedv/re^ the
Courts in India have adopted the rule laid down in the DtLchess of
Kingston's Case (1), and have applied it in a great number of cases.
It was recognised as the law in India by this Board in KhugowUe
Singh V. Hossein Bux Khan (2), where, after quoting the passage
in the Duohess of Kingston's Case (1) in which the rule is stated,
(1) 2 Smith's L. C. 760. (*J) 7 Bengal Law Rep. 673.
VOL. IX.] INDIAN APPEALS. 203
their Lordships say, ^^Tb6re is nothing technical or peculiar to j. a
the law of England in the rule as so stated. It was recognised by 1882
the Civil Law, and it is perfectly consistent with the 2ad section misibEagho-
of the Code ofProeedwre^ under which this case was tried." babdial
Mussumat Edim v. MiiB8umat Bechtm (1) may be referred to as Hajah Sheo
the leading case on this subject. In that case the Chief Justice, —
Sir Barnes Peaeoeky held that the two Courts must be Courts of
concurrent jurisdiction, and *^ in order to make the decision of one
Court final and conclusive in another Court, it must be a decision
of a Court which would have had jurisdiction over the matter in
the subsequent suit in which the first decision is given in evidence
as conclusive." As to what is a Court of concurrent jurisdiction,
it is material to notice that there is in India a great number of
Courts, that one main feature in the Acts constituting them is
that they are of various grades with difierent pecuniary limits of
jurisdiction, and that by the Code of Procedure a suit must be
instituted in the Court of the lowest grade competent to try it.
For instance, in BenffcU, by the Bengal Civil Cowrts Act, No. VL
of 1871, the jurisdiction of a munsif extends only to original suits
in which the amount or value of the subject matter in dispute does
not exceed Bs.lOOO. The qualifications of a munsif and the
authority of his judgment would not be the same as those of a
district or of a subordinate judge, who have jurisdiction in civil
suits without any limit of amount. In their Lordships' opinion it
would not be proper that the decision of a munsif upon (for
instance) the validity of a will or of an adoption in a suit for a
small portion of the property affected by it should be conclusive
in a suit before a district judge or in the High Court for property
of a large amount, the title to which might depend upon the will
or the adoption. Other similar cases are mentioned in the
judgment of the Chief Justice. It is true that there is an appeal
from the munsif 8 decision, but that upon the facts would be to
the District Court and not to the High Court And that the
decision should be conclusive would be still more improper as
regards many other of the various Courts in India, the qualifications
of whose Judges differ greatly. By taking concurrent jurisdiction
to mean concurrent as regards the pecuniary limit as well as the
(1) aSuth. W. R. 175.
204 INDIAN APPEALS. [L. R.
J. 0. subject matter, this evil or inconyenience is avoided ; and although
1882 it may be desirable to put an end to litigation, the inefficiency of
MisibBaqho- niany of the Indian Courts makes it advisable not to be too
BABDiAL stringent in preventing a litigant from proving the truth of his
Rajah Sheo case. It appears to their Lordships that if this case had arisen
before the passing of Act X. of 1877, the High Courts in India
would have rightly held that the decision of the Extra Assistant
Commissioner in the first suit was not conclusive as to the amount
of tho principal sum due on the bond.
Sect. 13 of Act X. of 1877 is as follows :—
^'No Court shall try any suit or issue in which the matter
directly and substantially in issue has been heard and finally
decided by a Court of competent jurisdiction, in a former suit
between the same partie:^, or between parties under whom they or
any of them claim, litigating under the same title."
The intention seems to have been to embody in the Code of
Procedurey by sects. 12 and 13, the law then in force in Indian
instead of the imperfect provision in sect. 2 of Act VIII. of 1859.
And, as the words of the section do not clearly shew an intention
to alter the law, their Lordships do not think it right to put a
construction upon them which would cause an alteration.
The first suit was for E9.1665, for interest only, the principal
not being then due, and the matter in issue was whether that sum
was due. The Plaintiff alleged that it was for interest on a bond
for Bs.12,000, which the Defendant denied, and thus an issue was
raised as to the consideration for the bond, but this was a collateral
rather than a direct issue in the suit. The Plaintiff might have
succeeded without having a finding upon it if he had proved an
admission by the Defendant that the sum claimed was due for
interest, or had shewn that the Bs.2475 had been expressly paid
on account of the larger sum which he said the Defendant owed
for interest. If the decision of the Assistant Commissioner is
conclusive he will, although he could not have tried the question
in a suit on the bond, have bound the Plaintiff as effectually as if
he had jurisdiction to try that suit. Their Lordships think this
was not intended^ and that by Court of competent jurisdiction
Act X. of 1877 means a Court which has jurisdiction over the
matter in the subsequent suit in which the decision is used as
VOL. IXJ INDIAN APPEALS. 205
conclusive, or in other words, a Court of concurrent jurisdiction. In J. 0.
the judgment delivered by this Board in KhagowUe Singh v. Hossein 1882
JBtix Khan (1), it said that the eadem causa petendi and judgment misib Bagho-
of a Court of competent or concurrent jurisdiction were both ^^^^^
wanting in that case. This seems to shew what was considered Rajah Shbo
" Baksh Sinoh«
to be a competent Court. Their Lordships think that sect. 13 —
of Act X. of 1877 should be so construed, and consequently they
will humbly advise Her Majesty that the orders of both the Lower
Courts should be reversed, and the suit be remanded for trial on
the merits. The Bespondent will pay the costs of this appeal.
Solicitor for the Appellant : T. L. Wilson.
(1) 7 Beng. L. R. 680.
END OF VOL. IX.
INDEX.
ACT n. or 1871, 8eh. 8, Ho. 146: See Limita-
tion. 2.
ACT Z. OF 1877, s. 13 : See Beb Judicata.
ACT XVm . OF 1850 : See Illbqal Abbest and
Detention.
ACT XXXYI. OF 1868 : See Illegal Abrbst and
Detention.
ACT XL. OF 1858, s. 3.] The manager of an estate
is not the guardian of infiint co-proprietors of that
estate for the purpose of binding them by a bond,
or of defending suits against them in respect of
money advanced with reference to the estate, un-
less he has obtained a certificate of administration
under Act XL. of 1858, s. 3. Dooboa Pebsad v.
Kesho Pebsad Singh - - - 27
ADVEB8E P088ESSI0K: See Limitation. 2.
BEBGAL ACT Vni. OF 1889, 8. 29 : See Limita-
tion. 1.
CEBTIFICATE Xnn)EB ACT XXIH. OF 1871 :
See Mahomedan Law.
CHABITABLE TBT7STS.] Where certain specific
property (part of a testator s estate) had been set
apaxt by the executors to answer ^e charitable
trusts created by his wiU, and the residue of his
estate had been made over to the Appellant (resi-
duary legatee and heir) who ratified such arrange-
ment by. deed and himself became a trustee; —
Held, that there had been a valid dedication to
charitable purposes of the said property, whether
or not the will, having regard to the testator's
proprietary right, was originally operative for
that purpose as against the heir. Pubmantjndass
Jebvtjndass v. Venayekbao Wassoodeo - 86
COBRTBTTCTIOB.] A mokurruri ijara pottah does
not necessarily import perpetuity. " Mokurruri "
may do so but not necessarily : — Held, on a consi-
deration of the object of the pottah and its lan-
guage and provisions as well as surrounding cir-
cumstances, that the intention to grant a perpetual
lease did not sufficiently appear. Mussumat
Bilasmoni Dasi v. Bajah Sheo Pebshad Singh 33
COBTBACT OF 8T7BETY8HIF.] In a suit to
recover moneys which the Plaintiff had been
compelled to pay upon the Defendants' breach
of contract with the independent State of Bha-
walpur, the Defendants pleaded that there had
been no breach within the meaning of the con-
tract of suretyship. It appeared that the whole
arrangement had been made within the State
of Bluiioalpury the authorities of which had put
an end to the contract and enforced payment by
the Plaintiff: — Hddy that the parties must be
considered to have contracted according to the
liabilities that would be incurred at Bhawalpur,
and not with a view to the law of British India,
COBTBACT OF STTBETTSHIP — continued.
and that the Plaintiff was entitled to recover.
SiBDAB SujAN Singh v, Ganga Bam - 58
C0T7BT OF WABD8 : See Beg. LIL of 1803.
BECLABATOBT SUIT : See Oudh Estates Act,
1869.
BSDICATIOH : See Chabitable Tbusts.
ESTOPPEL.] In a suit to establish that an ikrar-
namah between the original vendor and vendee of
a taluqa was binding on the Defendant, and that
he was bound thereunder to indemnify the Plain-
tiff for the payment of the Government revenue
of his (the Plaintiff's) portion of the taluqa ; it
appeared that the Plaintiff and Defendant re-
spectively derived title from the original vendor
and vendee, that the ikramamah was not in evi-
dence, but that in a suit between the same par-
ties in estate, relating in a great degree to tiie
same subject<rmatter, judgment had been given in
favour of the Plaintiff s predecessor : — Held, that
the Plaintiff had failed to prove his case. The
judgment in the former case was ambiguous as to
the extent and duration of the liability assumed
by the vendee, and did not decide that the con-
tract of indemnity should run with the land. — A
Court which rejects an original deed as inadmis-
sible, ought not to accept secondary evidence of
its contents, and then construe a document which
it declines to look at. Hiba Lall v, Ganesh
Pebshad ----- 64
2. A dur-putnidar defeated a suit for rent
brought by his putnidar (who was also zemindar)
on the plea that he had parted with his dur-putni
interest to his wife and son, who were accord-
ingly sued, and their dur-putni interest sold in
execution to the zemindar. — In a suit by the
zemindar, suing as dur-putnidar, against his
tenant, the Appellant intervened and claimed
title to the dur-putni under a mortgage from the
former Defendant (made subsequent to the dis-
missal of the form^ suit). He alleged that the
wife and son were merely benameedars and that
he had completed his title by a purchase in execu-
tion of a decree obtained on his mortgage : — Held,
that the Appellant, who admittedly would have
been estopped as mortgagee by the plea of his
mortgagor from setting up his present claim, was
in no better position by reason of his purchase in
execution. Pobeshnath Mookebjee v, Anath-
nath Deb ----- 147
EXECT7T10K OF BECBEE : See Mesne Pbofits.
GEATWALI TENUBES.] The lands in suit being
Lands the tenure of which is analogous to a ghat-
wali tenure of the nature described in preamble
to Beg. XXIX. of 1814. had been held by the
plaintiffs father during his lifetime, and had at
his death descended to the Plaintiff as his son and
208
INDEX.
[Ind. App. Vol. IX.
OEATWALI TEtnTKEB— continued,
heir, the plaintiff having been moreover appointed
thereto by the Government: Hddy that they
were not liable to be seized in execution of a
decree against the father as assets by descent in
the hands of the plaintifi^ his son. — Such tenures
are not resumable by the zemindar or by the
Government They are not transferable, nor
saleable in execution of a decree, nor divisible.
Though hereditary they are not governed by the
ordinary rules of inheritance, under the Hindu or
Mahomedan law, and are subject to the condition
of the Government's approval of the heir. — Rajah
Lelanund Sing v. Chvernment of Bengal (6 Moore's
Ind. Ap. Ca. 101) approved. Bajah Nilmoni
Singh v, Bakbanath Sinoh - - 104
GUASDIAirSHIP: See Act XL. of 1858, s. 3.
ILLEGAL ABBE8T AND DETENTIOir.] Act
XVni. of 1850 is an Act for the protection of
judicial officers acting judicially and of officers
acting under their orders. — ^In a suit against the
officer in command of the military cantonments
in Lueknow for damage to the Plaintiff^ in con-
sequence of the Defendant having put him under
an unlawful arrest and having wrongfully con-
fined him in his own premises for three succes-
sive days, and for having caused violence to be
used to his person and property ; it appeared that
the Defendant had acted bond fide, and imder the
erroneous belief that the Plaintiff was dangerous,
by reason of lunacy ; that he had put him into
confinement in order that he might be visited
and examined bv medical officers until such
officers should feel themselves justified in report-
ing whether he was a dangerous lunatic or not ;
that he had after such medical officers had re-
ported him perfectly sane, kept him on their
recommendation in restraint in order that he
might be removed from the cantonment and
placed under tlie observation of the civil sur-
geon : — Held, that the Defendant had acted with-
out legal authority under Act XXXVI. of 1858
or otherwise, that he was not protected by Act
XYIII. of 1850 or otherwise, and that he was
liable in damages to the Plaintiff. Sinclair v.
Bboughton - - - - - 152
JTJSISBICTIOK OF BEKT COUBTS.] The Bent
Courts established by Act X. of 1859 are Civil
Courts within the meaning of Act VIII. of 1859,
and under sect. 284 of Act VIII. a Collector can
transfer his rent decrees for execution into an-
other distiict. Rajah Nilmoni Singh Deo
Bahadoor V, Taranath Mookebjke - 174
LEGITDCACY: ^ec Mahomedan Law.
LEX LOCI C0NTBACTT7S: See Contract of
Suretyship.
LIMITATION.] The limitation prescribed by
Bengal Act VIII. of 1869, s. 29, is not prevented
from running in favour of a tenant during the
period that a suit in ejectment is pending against
him. — Ranee Surnomoyee v, Shooshee Mohhee Bur-
monia {12 Moure's Ind. Ap. Ca. 244) considered.
HuRBO Pershad Eoy Chowdhry v. Gopal
Chunder Dutt - - - - 82
2. Although under the old law of limi-
tation a Plaintitt* must prove that he wa« in pos-
JJMVtKTlOiS'-continued.
session of the property in suit within twelve years
before suit, yet under Act IX. of 1871 he may
sue within twelve years from the time when the
possession of the Defendant, or of some person
through whom he claims, became adverse to him.
— A Collector in possession of land for the pur-
pose of protecting the Government revenue, is
bound to pay the surplus proceeds of the estate to
the real owner, and his possession does not be-
come adverse to the real owner by reason of pay-
ing such proceeds to an adverse claimant. Bad
Karan Sinoh v. Kaja Bakar Ali Khan - 99
8. See Partition.
XAEOMEDAir LAW.] According to Mahome-
dan law the acknowledgment and recognition of
children by a fiftther as his sons gives them the
status of sons, capable of inheriting as legitimate
sons. Such an acknowledgment may be either
express or implied, in the latter case the inference
from the acts of the father must depend upon tlie
circumstances of each particular case: — Held^
that a suit relating to a grant of property within
the meaning of the Pensions Act (XXIII. of 1861)
need not be dismissed because no certificate has
been obtained before the commencement thereof:
sect. 6 according to its trae construction authoriz-
ing its continuance. Nawab Muhammad Azmat
Ali Khan v. Mussumat Lalli Beoxjm - 8
UESITE FB0FIT8.] Mesne profits and the in-
terest thereon are two distinct subjects. The
former include the amount which may have been
received from land, deducting the collection
charges. The loss of interest year by year there-
on is merely damages sustained by a Plaintiff
who has been prevented from receiving the profits
as they became due. The Court, in execution,
cannot exceed the terms of the decree by award-
ing interest year by year. Costs disallowed, un-
tenable grounds of appeal as to the amount of
mesne profits having been put forward in order to
bring the case within the rule as to value which
authorizes an appeal as of right. Hurro Doorga
Chowdhrani v. Maharani Surut Soondari Debi
[1
MITAXSHABA law.] Held, that the interest
which the Defendant took by heritage from his
father in an impartible zemindary was liable as
assets by descent for the payment of his father's
debts. Girdhari LaU v. Kamtoo LaU (Law Bep.
1 lud. Ap. 321) approved and declared applic-
able to the Madras Presidency : — Held, further,
that a zemindary to which a Hindu succeeds by
inheritance to his maternal grandfather is not his
self-acquired propeity ; but, quaere, whetlier he is
under the same restrictions as to the alienation or
hypothecation thereof as he would have been if it
had descended to him from his father or paternal
grandfather. Mcttayan Chettiar v. Sangili
ViRA Pandia Chinnatambiar - - 128
MOKVBRTJBI IJABA FOTTAH: See Construc-
tion.
OUDH E8TATE8 ACT, 1869, 8. 9.] In a suit by a
widow of a deceased talookdar against another
widow and htr transferee of the talook for a de-
claration of the Plaintiff 8 right to succeed to the
Ind. App. Vol. IX.]
INDEX.
209
OITDH ESTATES ACT, 18S9, s. d—tumtinued,
estate in suit after the death of the first Defen-
dant, the latter pleaded that by virtue of a sum-
mary settlement made with her in 1858, a sunnud
granted in 1861, and the entry of her name on
Sie first and third lists prepared under sect. 8 of
Act I. of 1869, she had under sect 9 an absolute
estate with full power of alienation : — Heldy that
the Defendant had by her acts and declarations
constituted herself a trustee for the purpose of carry-
ing into effect her husband's will, and that there-*
under the Plaintiff was entitled to the declaration
sought. In another suit by a Plaintiff entitled
under the said will in remainder after the deter-
mination of the life estates of the widows, for a
declaration of the invalidity of the transfer of the
estate, held that the suit was maintainable under
the Specific Relief Act, and that although declara-
tory relief might have been reasonably refused to
him as a remote remainderman in a second de-
claratory suit, yet the suit having been wrongly
decided against him on the merits, he was in
appeal entitled to the decree sought. Thakubain
Ramanund Koeb v. Thakurain Eagbunath
KOER ------ 41
FASTITIOK.] In a suit for partition by three
ont of six sons of a deceased zemindar against
the eldest son (two brothers being parties Defend-
ant), who wrongly contended that the zemindary
was impartible -.—Held, that the Plaintiffs should
recover their moiety of the zemindary together
with the mesne profits accruing thereon for the
period of their dispossession thereof, such period
not to exceed three years next before the com-
mencement of the suit, and the amount of such
mesne profits to be subject to an allowance for all
or any portion thereof as might be proved by the
Defendants to have been duly applied for the
benefit of the joint family. Bajah Venkata
Kannakamma Bow v. Bajah Bajagofala Appa
Row Bahadur _ - _ - 125
FEirSlONS ACT (XXHI. of 1861), 8. 6 : See
Mahomedan Law.
FETITIOK FOS SFECIAL LEAVE: See Will.
FOSSESSIOK BT THE COLLECTOS NOT AD-
YESSE TO THE TBTJE OWNEB: See
Limitation. 2.
FOWEB OF ALIENATIOK OVES ESTATE IN-
HERITED FBOU UATEBNALGEAND-
FATHEB : See Mitakshara Law.
FBACTICE.] A mortgagee holding two mort-
gages of the same property, sells un(ier the second
mortgage to the Plaintiff, and subsequently under
the first mortgage to his son benamee for him-
self; — fleZd, in a suit against the mortgagee and
the benameSedars that the Plaintiff was entitled
to set aside this second sale, and to redeem, but
that, the mortgagor not being a party, the Court
was wrong in introducing into the decree a de-
claration to the effect that the Plaintiff was en-
titled "as second mortgagee," and had not ac-
quired the equity of redemption belonging to the
mortgagor. — feuch a declaration should in appeal
be struck out as embarrassing to the Plaintiff s
title, at the expense of the Respondent who re-
sisted. Chooramun Singh v. Shaik Mahomed
Ali ------ 21
FBEOATOBY TBU8T8: See Will.
BEOITLATION XXIX. of 1814 : See Ghatwali
Tenijbes.
BSOtTLATION HI. of 1803.] Where an estate
has been properly taken possession of by the
Court of Wards under a proper power on behalf
of its ward, the latter is incompetent to bind the
same by debts or alienation thereof. — Mohummtiid,
Zdhoor Alt Khan v. Mussumat Thakooranee Koer
(11 Moore's Ind. Ap. Ca. 468) distinguished. —
Where the said Court has given to its wards,
whether prudently or not, a limited authority to
raise loans for the purpose of paying antecedent
debts, Jield, that that is not such a holding out to
the world of the competency of such wards as
would induce any reasonable person to suppose
that they had power to contract debts. Bai
Balkrishna v. Mussumat Masuma Bibi - 182
BES JTIDICATA.] The words " Court of compet-
ent jurisdiction *' in sect. 13 of Act X. of 1877,
mean a Court which has jurisdiction over the
matter in the subsequent suit in which the
decision is used as conclusive; in other words,
a Court of concurrent jurisdiction, i.e., con-
current as regards the pecuniary limit as well
as the subject-matter. — In a .suit for principal
(B8.12,000) and interest upon a bond brought in
the Court of a Deputy-Commissioner, it was
pleaded that in a suit for interest only brought in
the Court of an Assistant Commissioner, it had
been held that Bs.4790, and not Bs.12,000 was the
amount of principal and interest which had been
decreed thereon accordingly : — fleZd, that this
was not res judicata as regards the principal
amount of the bond. Tiie pecuniary limit of the
Assistant Commissioners jurisdiction being
B8.5000 he could not effectually bind the Plain-
tiff as regards amount of the bond. Misib Bag-
HOBARDLkL V. BaJAH ShEO BAKSH SiNGH - 197
SECONDABT EVIDENCE : See Estoppel.
SFECIFIC BELIEF ACT: See Oudh Estates
Act, 1869.
SUBETYSHIF ; See Contract of Subetyship.
WILL.] A testator gave to his widow the whole
of his real and personal property ''feeling confi-
dent that she will act justly to our children in
dividing the same when no longer required by
her:*' — Held, that the widow took an absolute
interest, and that the doctrine of precatory trusts
did not apply. — The petition of special leave to
appeal in this case stated correctly two valid
grounds for granting the same; but contained
misstatements of fact which affected the third
ground relied upon by the petitioner: — Held,
that any such petition is liable at any time to be
rescinded with costs if it contains any misstate-
ment or any concealment of facts which ought to
be disclosed. It appearing however that there
was in this case no intention to mislead, the
appeal was heard and allowed, but without costs.
— Bam Sahuk Bose v. Monomohini Dossee (Law
Bep. 2 Ind. Ap. 81) approved. Mdssoobie Bank
V. Eaynob ----- 70
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,
MTAMFORD STBKET AND CHAEIMQ CROSS.
./^
3 bios ObS b3H 311