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II U I 



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IND.P 




HARVARD LAW LIBRARY 



Re«iv.i OCT 1 6 1912 






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PUNJAB BECOBD 



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"^tUxmt §ook for €M ©ffiurs, 



OOMTilNINO 

THE EK PORTS OP CIVIL AND CRIMINAL CASES DETERMINED BY 

THE CfllEP COURT OF THE PUNJAB AND BY THE JUDICIAL 

COMMITTEE OP THE PRIVY COUNCIL ON APPEAL PKOM 

THAT COURT, AND DECISIONS BY THE FINANCIAL 

COMMISSIONER OF THE PUNJAB. 

REPORTED BY 
ALWEYNE TURNER, BARRISTER-AT-LAW- 

> VOLUME XLII. 

1907. 



t abot I : 

" THt; CIVIL AND MILITARY GAZETTE " PRESS, 
1907. 



OCT 1 6 1912 



JUDGES OF THE CHIEF COURT. 

CHIEF JUDGE: 

SlB WKillAM ClABK, Kt, 

JUDGES: 

Mb. Justice A, H. S. Reid. 
„ „ PeotulOhandb\ Ohattbbji, Rai Bahadur, C.I.E. 

„ „ F. A. RjBBUTSON. 

„ „ A. Kensington — on leavb pbom 18th May 19^7,10 
12th October 1907. 

„ D. C. JoBNsiONE — {Temporary Additional). 

H. A. B, Rattigan — {Tetnporary Additional up to 
12th August 1907). 

„ Lal Thand, Rai BhnM)VB,^{Ttmporary AddHionalup 
*' to \2th August \907). 

„ Muhammad Shah Din, Khan Bahadur — {Temporary 
Additional up to 12th August 1907). 

„ W. CflEVie — {Temporaty Additional from 18th May 
'* 1907 to 12th August 1907). 



CIVIL JUDGMENTS, 

1907. 



A TABLE 

OT TUB 

lAISS OP CITiL CISSS BBPORTeD II 1HIS YOIDME 



Name of Oase. 



Abdollav. Allah T>ad 

Achhar Singh v. Mehtab Singh 

Achhru V. Labhu 

Ahmed Bakhsh v. Husain Bibi 

Aiwaz V, Simla-Kalka Railway Company 

Ajadhia Pershad v. AhsanuUah 

Allah Ditta v. Raj Kumar 

Amir All v. Baggo 

Amrit Lai v. Bhagwana 

Anwar Ali v. Inayat Ali 

Attar Singh v. Sant Sin^ 



Bahadur v. Alia 
TUlchRhi Ram V. Qumano 
Bakht Sawai v. Sardar Khan . 
Barkat Ali v. Jhandu 
Bam Mai v. Mmiir Khan 
Bhagat Ram v, Ganda Singh 

„ V. Paras Ram 
Bhagirath i;. Nath Mai 
Bhagwan Das v. Ram Das 

„ V. Sidhu 

Behari Lai v. Ram Chand 
Bichha Lai o. Gmnani 
Bishambar Das v. Udho Ram 
Bara Mai v. Narain Das 
Buta Singh v. Ram Singh 
„ V, Tara Singh 



c 



Cameron v. Bulaki Mai 
Chiragh Din v. Nizam Din 



Dadn v, Kadu 
Dalip Sin^ v. Ishar Singh 
Darehan &an v. Sohaura Mai 
Den Dial v. Uttam Devi 
Dial Singh v. Bakshish Singh 



No. 



Page. 



98F.B. 


458 


81 


404 


48 


196 


185 


650 


78 


886 


56 


235 


138 


662 


# 15 


66 


41 


175 


82 


124 


87 


424 


80 


120 


18 


84 


119 


544 


127 


617 


77 


397 


89 


438 


84 


411 


105 


491 


117 


538 


186 


652. 


149 


692 


93 


442 


, 2fi 


99 


102 


473 


86 


422 


122 


594 


146 


68!> 


65 


230 


113 


522 


78 


398 


124 


«08 


37 


1 182 


21 


89 



ii 1 TABLE OF TUB NAMES OF OlVIL CASES BEPOETBD IN THIS VOLUME — (cow^fi.)- 



Nf^m9 of Case, 



IT' 



Paiz Bakhsh i; Jahan Shah 
Fakiria v. Dhani Nath 
Faqir Ali Shah v. Ram Kishen 
Farman Shah v. Secretary of State 
Fateh Ali v. Nizam Din 

„ Din V. Balli 

„ Muhammad v. Kariman 
Fatteh Mnhammad V Said Ahmad 
Fazal V. Hayat Ali 



Gandu Singh v. Natha Singh 
Ganga Ram v. Abdul Rahman 
Ganga „ r. Devi Das 

,. V. Balla Singh 
Ghulam Muhammad v Jangbaz 
Girdhar Lai v. Deoki Nandan 
Girdhari Lai w. Bhago 
Grohra v, Hari Ram 
Gokal Chand v. Rah man^ 
Guldad Khan v. Gul Mm 
Gulzari Mai v. Kishen Cband 
Gur Bakhsh »»• Khairati 
Gurditta v. Jai Singh 

v.NarainDas 



Hakim v. Ralya 

„ Sinprh v. Waryaman 
Hamira v. Ram Singh 
Hargopal v. Bhagwan Sahai 
Hari Singh v. Nika J^ingh 
Harjallu Mai v. Nathu Ram 
Harya v. Mul Chand 
Hazara v, Bishen Singh 
Hirav. KarmKaur 



Imam T>in v, Mulla 
Inayat Khan v. Shabu 
Ishar V. Partab Singh 
Ishwar Das v, Duni Chand 



Jagan Nath v. Budhwa 
Jahan Khan v. Dalla Ram 
Jalla V. Gehna 
Jamna Devi v Mul Raj 
Jiwani v. Bhagel Singh 
Jodh Nath v. Sadhu Ram 



C3- 



IT 



e. 


No. 


Page. 




96 


454 




24 


96 




188 F.B. 


636 




63 


349 




71 


382 




109 


506 




7 


87 


..! .!! 


8 


23 


... 


29 


U6 




12 


69 




28 


107 


."! !!! 


61 F. B. 


280 


... 


110 


510 


... 


58 


270 




111 


614 




95 


43P 


... 


115 


52*^ 


... 


59 F. B. 


274 


... 


44 


182 


... ... ... 


132 


6:;6 


... 


82 


406 




72 


386 


... 


43 


179 




126 


611 


... 


140 


670 


, 


134 F. B. 


642 


... 


70 


380 


... 


42 


17T 


... 


51 


222 


... ... 


64 


H64 


... 


12« 


6t8 


•.. 


23 


94 


... ^ ... ... 


104 


487 


*•* •». ••• 


108 


504 




38 


165 


... 


27 


105 




2 


18 


... ... ... 


142 


674 


... 


60 P. B. 


278 


... 


49 


198 




97 


465 


••• •§• ... 


60 F. B. 


205 



k TABLE OV tBE NAM8S Of Civit CASES REPORTED IN TkiS VOLUME — (co» /(/.). ii^ 



Name of Case. 



Kalu r. Parta Mai 

Kanhaya Lai v. The National Bank of India 

Karam Chand v. Khuda Bakhsh 

Karim Bakhsh r. Watta Mai 

Khan Zaman v. Fatteh Sher 

Kirpa Bam v. Khushali Mai 

„ „ V, Rakhi 
Eisben Dial v. Ram Ditta 



Ladhu V. Sardar Muhammad 
Lakha Singh v. Jota Singh 



3SJ- 



Maharaj Karain v. Banoji 
Mahmud V. Nur Ahmad 
Mahtab Singh .V. Niaz All 
Jsanohar Lai v. Pars Ram 
M aula Bakhsh v. Devi Ditta . . 
Miran Bakhsh v, Ahm^d 

„ „ V. Chiragh Din 

Mohkam Din v, Mansabdar 
Muhammad Din V. Jawahir 

„ „ v. Shah Din .. 

„ Isiazud din v. Muhammad Umar Khan 

„ Umar v, Abdul Karim 

Muhammadi Begam v, Faiz Muhammad Khan 
Mul li^^j V. Ladha Mai 
Municipal Committee of Delhi v. Devi Sahai 



No 



isr 



Narpat Rai v. Devi Das 
Nathu V. Amir Chand 
Nigahia v. Sandal Khan 
Nihal Chand v, Ali Bakhsh ... 

„ „ V, Bhagwan Singh 

„ Devi v. Shib Oial 
Niharku v. Madho 
Nur Muhammad v, Amina •>< 



Pnran v, Mamun 

Puran Singh v, Kesar Singh 



Badho V, Uamamaii 

Ra^^u Mai v. Bandu 

Raj Bhai t;. Yakub Ali 

. yf Samp V, Uardawari 

Rajab-un-nissa v. Uabib Bakhsh 

Ralliar.Gokal Chand 

Ram Chand v, Thakar Das 



••• 
••• 



Pago. 



4n 


188 


121 F. B. 


550 


5 


30 


IH 


Gl 


^3 


4C7 


8) 


402 


114 


52 » 


20 


67 


181 


621 


35 


153 


:u 


i:U 


10 1 


467' 


47 


1H3 


G7 


373 


() 


3*4 


H.i 


681 


l.» 


fc6 


7» 


dhh 


(ii) 


iJ76 


do 


435 


I 


I 


va 


482 


35, Nctc lt> 


155 


100 


466 


Ui 


'64^ 


126 


613 


1-17 


6h5 


8H 


42a 


9 


46 


32 


129 


3t5 


158 


107 


601 


91 


437 


130 


620 


89 


168 


90 


46 L 


31 F. B. 


121 


120 


547 


95 


r»5L 


67 


238 


139 


664 


94 


449 



iv A TABLE OK ThE NAMES OF CiVIL CAfES tlErORTED IN THIS VOLCME— (cOWcZe^). 



Name of Case. 



Ram Mai v, Shahamad Khan 

„ Rakha i^. Sant Ram 
Raushan v. Makhan 
Rukman Devi v. Sain Das 



Saida r. Ismail 

Baif Ali Khan v. Fazl Mehdi Khan 

Sandhe Khan v. Bhana 

Saran and Coy. v. Basheshar Nath 

Shah Nawaz v, Azmat Ali 

Sbahab-ud-din V. Sohan Lai 

Shahabul Shah v. Ganesh Das ... 

Shankar Lai v. Zorawar Singh ... 

Sharfo v. Ramzan 

Sher Singh v. Sidhu 

SirHJ-uddin v. Muhammad Farak 

Sobha Ram v. Ram Das 
,, Singh V. Kishore Chand 

Sochet Singh u. Dial Singh 

Sohan Lai v. Labhu Ram 
„ Singh V. Jahandad Khan 

Sohna r. Sundar Singh 

Smidar i*. Wazira 

,; Das V, Dhanpat Rai 

„ „ V, Raja Baldeo Singh 

„ Lai V. Ram Singh 

„ Singh V. Mehr Singh ... 



Thakaria v. Daya Ram 
Than Singh v. Tara Singh 
Topan Das v. Jeso Ram 



Udav.Mul Chand 
Umra v, Ghulam 

„ V. Muhammad Hayat 
Uttam Chand v, Lahori Mai 



O? 



XJ 



No. 



Page. 



129 


620 


68 


374 


106 


498 


137 


660 


76 


394 


123 


600 


141 


673 


148 


687 


40 


172 


75 


889 


53 


227 


116 


584 


14 


64 


U 


55 


8 


42 


66 


370 


65 


367 


46 


191 


150 


694 


52 


225 


85 


418 


144 


679 


16 


74 


118 


541 


10 


54 


54 


229 


143 


677 


26 


101 


17 


81 


4 


25 


22 


92 


79 


400 


112 


519 



TABLE OF CASES CITED- 

(Civil). 



Name of Case. 



Abdul Rahiman v. Mai Din Saiba, I. L. R., XXII Bom, 500 

„ Rahman v. Yar Mohammad, I. L R., Ill All.» 636 
Aben Sha Sabit Ali v, Cassirao Baba Sahib Holkar, I. L. R., VI Bom., 260 

Ablakb «. Bha^drathi, I. L B., IX All., M 

Acbal Bam v. Kazim Hossain Khan, I. L. R., XXVII All., 271, F. C. 
Acbam Param Nath r. Gantz, I L. R , III Mad., 138... 
Adjodhia Pershad v. Balmokai.d, I. L. R , Vm AIL, 354 
Administrator-General of Madras v. Anundachari, I. L. R., IX Mad., 470 
Advocate of the Calcutta High CJourt, In the Matter of, 4 Calc. W, N. Civ. 
Ahmad v. Ghulam Muhammad, 94 P. R , 1904, F. B. ... 
„ Din V. Mussammat Hiisso, 54 P. R., 188:{ 
„ Khan V. Mussammat Gulam Bibi, 36 P. R., 1891 
„ Shah V. WaHdad Khan, 96 P. R., 1806 
Alabaster v. Harness, L. R. 1. Q. B. (l^^^), 339 
AU Bakhsh v, Nathu, 93 P. R., 1894 

„ Mardan v. Municipal Committee, Kohat, 46 P. R., 1905 

„ Mnhanmiad v. Dulla, 26 P. R.. 19ol ... 

r. Kadir Bakhsh, 107 P. R.. 1900 

„ „ V, Piran Ditta, 70 P. B., 1905 

Mukhtar, In re. Ill P. R , 1894 
Alia Bakhsh V. Shama, 158 P. R., 1882 
Alstcm V. Pitambar Das, I. L. R., XXV AU , 509 
Amar Chandra Kundu v. Sebak Ghand, Chowdhry, 11 C. W. N., 593 
Ami Chand v. Ghasita Mai, 143 P. R., 1882 
Amir t>. Zebo, 42 P. R , 190-3 
„ Khan «. Dula, 43 P. R., 1889 
„ „ V. Sardara, 110 P R., 1894 
AmimlLih Shah v. Tube Hussein, 138 P. R., 1884 
AmolakShah v. The Collector of Lahore, 115 P. R., IdOO 
Amrito Lai, Mukerji, v. Ram Chandra Roy, I. L. B., XXIX Calc, 60 
Anant Ram V. Hnkman Mai, 62 P. R , 1802 
Aoanta Balacharyar v, Damodhar Makund, I. L. B., XIII Bom., 25 
An^ypa r. Ganpati, 1. L. R , V Bom., 181 

Anderson Wriest v. Kalaguda Surji Narain, I. L. R., XII Calc, 389 
Ankar Lai V. Bail Nath. 103 P. R^ 1889 
Anwar Ali V. JaiEar Ali, I. L. R., XXm Calc, 827 ... 
Appa Rao v. Venkataramanayamma, I. L. R., XXul Mad., 55 
Armugam t7. Siyagnana, I. L. R., XIII Mad., 321 
Animairam Chetti v. Arunachalam Chetti, I. L. R.,XXn Mad., 22... 
Anmadbala r. Ayyavu, L L. R., VII Mad., 318 
Amodadbi v. Natesha. I. L. R„ V Mad., 891 
Asa Nand r. Kura, 11 P, R., 1896 

Asgar Ali v, Troilokya Nath, Ghose, L L. R., XVII Calc. 631 ... 
Assan v. Pathumma. I. L. R., XXII Mad., 494 
Atar Sim^v. Prem Singh. 12 P. R., 1906 

„ «. RallaRam, 103P.R.. 1901,F.B. 
Atma Ram v. Devi Dyal, 49 P. R., 1901 



No. 



32 


127 


66 


372 


52 


226 


121 


658 


11 


57 


61 


2K7 


121 


569 


49 


303 


61 


284 


83 


410 


83 


410 


15 


70 


141 


674 


61 


323 


15 


71 


62 


348 


15 


72 


47 


194 


44 


186 


61 


281 


59 


276 


61 


293 


147 


686 


99 


464 


1,35 


9,154 


113 


623 


88 


433 


184 


609 


63 


364- 


121 


654 


99,115 


463,533 


57 


267 


28 


116 


28 


112 


51 


226 


121 


r 554 


5 


31 


366 


83 


89 


434 


64 


366 


5 


81 


24 


97 


116 


686 


123 


606 


87, 116 


426,534 


80 


121 


186 


610 



Page. 



n 



tABLS Of CASBS dTEI)— CIVIL— ^CWlfci.)* 



Name of Oase. 



Attar Singh v. Ouran Ditta, 50 P. R., 1879 
„ V. Sant Singh. 113 P. R., 1906 
Attorneys and Solicitors Act, Re, L. R., 1 Ch. Dn., 573 
Aulia V. Alu, 49 P. R., 1898 
Aya Ram v, Queen-Empress. 9 P. R., 1901, Gr. 



Baboo Bam Golam Singh v. Nursing Sahoy, 25 W. B., 43 
BadarDin v. Bura Mai, 4 P. R., 7903 
Badi Bibi v, Sami Pillai I. L. R., XVIU Mad., 257 ... 
Badri Das v. Jawala PersUad, 86 P. R., 1891 

„ „ V. Municipal Committee, Delhi. 90 P. R., 1898 
Bagh Sin^ v, Basawa Singh, 50 P. R., 1906 
Bmdar Khan v. Sardar. 89 P. R., 1895 
Bahadur v. Mu^sammat BhoM, 108 P. B., 1898 
Bai Bapi v, Jamna Das Hathisang, I. L. R., XXII Bom., 774 
Bakhsha v. Mir Baz. 79 P. R., 1896 . 
Bakhtawar V. Chirag, 8 P. R., 1879 
Bakhu V. Jhandu, 145 P. R., 1892 
Baldeo Das, v. Piare Lai, 24 P. R., 1901 ^.. 
Balkaran Rai v. Gobind Nath Tiwari, I. L. R., XII All., 129 
Balwant Sin«^ v. Rani Koshori, I. L. R., XX All^ 267 
Bank of Auburn v. Roberts, 44 N. Y. 192, Jones, S. 708 
Banke Rai r. Madho Ram, 153 P. R., 1883 ... 
Banne Shah v, Karm Chand, 89 P. R., 1881 
Barhamdeo Narain Singh v. Mackenzie, I. L. R., X Calc, 1C95 
Baroo v. Makhan, 61 P. R., 1903 
Barot Naran v, Barot Jesang. I. L. R., XXV Bom., 26 
Basa Mai v. Tajammal Hnssain, I. L. R.. XVI All.. 78 
Basant Lai v. Kunji Lai, I. L. R., XXVIU AIL, 21 ... 
Batheshar Lai v. Natha Singh, P. R., 1907, F. B. 
Bawa Lehna Singh v. Jagan Nath, 138 P. R., 1888 

„ Sukhram Das v. Barham Puri, 122 P. R., 1890 ... 
Beechy v. Faiz Mahomed, 5 P. R , 1878, F. B. 

„ v. Ohulam Ghous, 26 P R., 1874 .. 
Beg Raj Marwari v. Sreemuthy Kundab Debya. 8 C. W. N., 853 
Bebari Lai v Poke Ram I. L. R . XXV All., 48 
Bhagat Ram v. Tulsi Bam, 144 P. R., 1892... 
Bhagwan Jethu Ram v, Dhondi, I. L. R , XXII Bom., 83 

Singhv.Pari, 32P.B., 1889 ... 
Bhakhu v. Jhanda. 145 P B., 1892 
Bhambu Bam v. Chhattu Mai, 144 P. R., 1891 
Bhandara. In re. 3. Bom., L. R., 102 
Bhikaji Ram Chandra v, Purshotam, T. L. R., X Bom., 220 
BhikanDa8r.Pura,LL.R., HAIL, 141 ... 
Bhola Bhai v. Adesang. L L. R., IX Bom., 75 
Bhdi V, Fakir, 62 P. R., 1906 ... 

Bhngwanbulti Chowdhran v, Forbes, I. L. R., XXVn Calc, 78 
Bhupa It. Nagahia, 68 P. R , 1903 

Biru Mahata v, Shyaroa Chum Khawas, I. L. R., XXII Calc, 483 
Bisheshur v. MaU Ghilam. 2 N. W. P., 300 
Bo|^ Singh v. Gurmukh Sin^, 93 P. R., 19C2. F. B. ... 
Bolaki Shah V. Hafiz Esan, 67 P. R., 1874 ... 
Brou^Jiton v.Perhlad Sen, 19 W. R., 152 ... 
Budha Mai v. Gulab, 36 P. B., 1899 
Bug V. Asad All Shah, 75 P. R., 1897 
Bora V. Mailia Shah. t04 P. R., 1901 
Burlinson v. Hall, 53 L. J. Q . B., 222 



No. 



Ba0B. 



87 


426 


13 


62 


61 


323 


15 


72 


62 , 


348 


136 


656 


55 


232,284 


28 


110 


149 


694 


58 


272 


70 


382 


Note to 96 


453 


15 


72 


75 


893 


15 


72 


15 


71 


42 


178 


141 


674 


123 


605 


150 


696 


17 


83 


150 


698 


55 


233 


121 


692 


115 


534 


t 


13 


17 


83 


126 


616 


100 


467 


16 


77 


78 


399 


61 


280 


61 


804 


5 


81 


28 


110 


1 


12,14 


116 


635 


121 


552 


O'J 


279 


74 


3S9 


61 


284 


121 


587 


36 


160 


57 


251 


29 


118 


57 


251 


38 


166 


5 


34 


49 


304 


106, 141 


500,674 


136 


617 


18 


85 


16 


78 


7 


41 


148 


689 


9 


60 



TAtitB 0? OASES OITRIV— OITtL— (oonR). 



Hi 



Name of Case. 




BoMim Lall v. Chondea Das, L L. R., IV Calc, ( 
BqU v. Khuda Bakhsh, 97 P. R., 1906 
„ Sngib V. Ram Sin^ 86 P. B., 1907 ... 



Chadan LaU v. Niiud, 153 P. R., 1882, Note 

Chand Kour v. Partab Singh, L. R., 15 I. A., 156 

Chandika Bakhsh v. Mema Kunwar. I. L. R., XXIV AIL, 273 
Chatarpal V. Jagram, L L. B., XXVII AU., 411 
Qiandhri Khem Singh v, Mnssammat Taj Bibi, S3 P. R., 18h8 
Chennappa v. Raghunaiha. I. L. R., XV Mad., 29 
Oiira^ Bib! v. Hassan, 19 P. R., 1906 

^ Dinv. Mamman. 28P. K., 1893 
Choodri Gnrmokh Singh v. Mussammat Mirza Nor, 63 P. R., 1901 
Cbowdrv Pndom Singh v. Koer Oudey Singh. 12, M. I. A., 350 .^ 
Chowksi V Chowksi, I. L. R^ Vm Bom.. I9i 
Chnhar Mai r. Hari Ram, I. L. R., Vm AU., 548 
Chnni Lai v. Abdul AU Khan, L U R., XXIH All., 331 
„ r. Bodar Mai, 2 P. R.. 1886 

„ „ V, Mussammat Amir Bibi, 39 P. R., 1900 ... 
Oimiin Kaur v. Rup Singh, I. L. R., XI All., 72 
Coates V. Kashi Ram, 76 P. R.. 1903 
Collector of Poona c;.' Kashi Natji, I. L. R., X Bom., 585 
Cook tr. Gill. L. R, 8 C. P., 107 .. 
Court of Wards v, Fatteh hin^. 75 P. R., 1881 
Cowasji V. Rustomji, I. L. R., XX Bom., 511 
Crown V. Mussammat Gulam Fatima, 32 P. R., 1870 Cr, 

Damodar Das v. Gokal Chand, I. L. R., VII All., 79, F. B. 
„ r. Municipal Committee, Delhi, 27 P. R., 1901 
Darid Hay v, Bazi-ud-&i, I. L. R.. XIX All, 202 
Daya Ram v. Sohel Singh, 110 P. R., 1906, F. B. 
Derarakonda Narasamma v. Davarakonda Kanaya, I. L. R., IV Mad., 134 
Deri Daa v. Bhakra, 63 P. R., 1899 
Dewanntulla v Kazem Molla, I. L. R., XIV Calc, 184... 
Dhan Devi v. Kanshi Ram, 38 P. R., 1906 ... 
I^iani Nath V. Budhu, 13GP. R , 1894 
Dharm Das v. Ajudlua Pershad, 70 P. B., 1881 
Dhem v. Sidhu. 56 P. R., 1908, F. B. 
Dhondiram r. Taba Savadan, I. L. B., XXVII Bom., 330 
Dhonkal 8in^ v, Phakkar singh, I. L. R., XV All., 84, F. B. ... 
Dickinson V. Harrison, 4 Price, 282 ... ^ 

Dilgsnjan Sin^^ v. Kalka Sin^, I. L. R., XXII All, 1 ... 
Dilsukh Ram v. Naihu Sin^, 98 P. R , 1894, F B. ... 
Doet Muhammad Khan v. Said Begam, I. L. R., XX All, 81 
Duke V. Rameswar Malia, I. L R., XXVI Calc. 81 1 ... 
Duncan Brothers v.Jeetmal Girdhari Lai, I. L.R., XIX Calc, 372 
Duiga Outran Mandal v. Kali Prasanna Sarkar, I. L. R , XXVI Calc, 727 

„ Prasadv. ShambhuNath, I.L. R,VniAll,86... 

„ Sin/^ V. Bisheshar Dayal. I. L. R., XXIV AU , 218 
Durham Brothers v. Robertson, L. R. I, Q B. ( 1898>. 765 
Dwarka Das v. Kanesha^ Prasad, I L. R., XVIl AU., 69 

„ Nath Mitter r, Tara Prosunna Roy, I. L. R., XVII Calc, 160 



Paipt* 



69 
28,57,111 



IV 



TABLE Of CA3IS OlffiD-KJlTIL— («mWs)^ 



' • Name of C3aw. 


No. 


p&ea. 


353 

Earle v. Hopwood, 30 L. J. C. P. (N. 8.), 217 




CI 


323 


Ezra: v. Secretary of State, I. L R., XXX Calc, 86 ; I. L. R., XXXH Calc. 

IP 
Faiz Bakhsh v. Ditta. 1 15 P. R., 1901 ... 


. 606. 
P.C. 


63 


840 




98 


459 


„ Talab v. Kaim Khan. 80 P. R., ISSir ... 


*.* 


8 


45 


Faiz-ud-din v. Mussammat Wajibmmisa, 71 P. R., 1892 


... 


134 


647 


Fakir Chand v. Mussammat Chiranji, Si P. R., 1863 ... 


... 


36 


160 


Fateh Khan v. Muhammad, 98 P. R., 1898 ... 


• 1. 


133 


638 


„ Muharamadv.DoulatKhan,48P. R., 1895 


..• 


134 


647 


Fattu V. Bakhsha, 15 P. R , 1895 


... 


15 


71 


Faxal V. Khan Muhammad, 85 P. R.. 1904 ... 


... 


29 


119 


„ V. Samandar Khan, 49 P. R., 1891 ... 


... 


95 


492 


„ nahi V. Hazari Singh, 48 P. K.. IP02... 
Firdaus Khan v. Dare Khan, lt9 P. R.. 1902 


... 


46 


192 


... 


84 


412 


Finipati v. Nara Sima, I. L, R., Vin Mad., 210 


.•• 


28 


110 


Francis Legge v. Rambaran Singh, I. L. R., XX All., 35 


... 


140 


671 


Futteh Singh t». Khark Singh, 88 P. R., 1 852 


... 


140 


671 


C3- 






1 


Gaijan v. Bhopa, 27 P. R., 1893 


... 


44 


186 


Gaman i\ Bakhsha, 42 P. R., 1887 


... 


113 


623 


„ r. Mussammat Aman, 171 P. R., 1888 


... 


134 


645 


Gan Savant Bal Savani ». Naryan Dhond Savant, I.L. B., VTI Bom., 4r»7 


... 


43 


182 


Ganesh v. Gyanu, I. L. B., XXII Bom., 60(5... 


• • 


1.^2 


635 


Gahesha Singh «. Nathu. 20 P. R., 1902 ... 


• •• 


1 


13 


Ganga Prasad v. Kura, I. L. R., XXVUI All, 408 ... 


... 


66 


371 


Gangaprasad t». Ramdayal I. L. R., XXIII All., 502 ... 


• •1 


132 


684 


Ganpat r. Dhani Ram, 76 P. R., 1906 


... 


108 


505. 


„ V. Nanak Singh, 81 P. B., 1900 


• •• 


69 


379 


George v. Vastian Soury, I. L. R., XXn Mad., 202 ... 


»•• 


66 


373 


Ghanaya v. Basan Mai, i^ P. R.» 1894 


... 


24 


97 


Ghesa v, Ranjit, 121 P. R., 1880, P. B. « 


... 


57 


267 


Ghibav Hayat, 120 P. R., 1S88 


„, 


186 


658 


Ghulam Ghaus v. Nabi Rakhsb. 24 P. R., 1903, F. B. ... 


••• 


42,101 


178,469 


„ Jilani t*. Mubammad Hussain. 25 P. R.. 1902, P. C. 


• •> 


100,126 


467.615 


„ Muhammad r. Abbas Khan, 22 P. R., 1899 ... 


... 


15 


72 


„ Muhammad v. Mubammad Bakhsh, 4 P. R., 1891 


... 


134 


648 


„ Mustafa v. Hurmat, I. L. R., n All., 854 .. 


... 


135 


651 


Gilkinson v, Subramania Ayyar, I. L. R., XXII Mad., 221 


... 


121 


658 


Girdari Ul v. Dalla Mai, 3 P. R., 1901 ... 


. 


94 


461 


Gobind Chunder Koondoo v. Taruck Chander Bose, I. L. R., Ill Gale, 145, 


F.B. 


57 


266 


„ Dayal v. Inayatulhh, I. L R., VHI AIL, 775 ... 


..■ 


141 


674 


Gokal Chand V. Mohan Lai, 6 P. R., 1905 ... 


... 


0, 188 


36,«63 


Gomess v. Mela Ram, 16 P. R., 1884 


... 


59 


276 


Gopal Chunder Manna v. Gosain Das Kelay, I. L. R., XXV Calc, 594 


... 


32, 116 


12S636 


„ Sah V. Janki Koer, I. L. R., XXUI Calc, 217 


... 


116 


535 


Sahai v. Mussammat Hussain Bibi. 100 P. R . 1889 


••. 


59 


275 


Gopi Reddi v MaEanandi Eeddi, I. L. R., XV Mad., 99 


.*. 


10 


87 


Gorose v. Amirtamayi Daw, 4 Beng L. R , 0. J , 12 ... 




61 


315 


Gosto Behaiy ^ev. ShibNath Dutt, I. L. R.. XX Calc, 241 .. 




17 


S2 


Sardar v. Hnri Mohan Adak, 8 Calc W. N , 313 ... 


... 


121 


555 


Government of Bombay v, Ganga, I. L. R., IV Bom., 880 


4 


49 


200 


Gorind v, Dhondbarar, I L. E , XV Bom., Iu4 


... 


67 


251 


Govinda Pillai p. Thayam Mai, 14 M. L. J., 209 


••• 


108 


606 



TlBtE or GASM 01TlD-*cmL— (OOWfc?.). 



Name of Case. 




Gowhra v Ali Ganhar, 11 P. R., 1890, Rev. 
Oreender Chunder Ghose v. Mackintosh, L L. R., IT Calc, 897 
Qiegoiy V. Molesworth, 3 Atk., 617 
Gi^ V. Lachman Das, 51 P. R., 1895 
Gnjar r. Sham Das, 107 P. R., 1887, F. B. 
Sliifiji V. Puran. 71 P. R., 1901 ... 
Gulab V. Ighar Kour. 63 P. R., 1893 ... 
Oollur.Mohabat, 92 P.R., 1894 
OuTuvavra r. Dattatraja, I. L. R , XXVin Bom^ 11 ... 



Habib im-Nissa v. Mmiawar-imNissa, L L. R., XXV AIL, 62a ... 
Hafiz Karim Bukhsh v. Begum Jan, 52 P.R., 1895 ... 
naidar v. Ishwar Das, 22 P R.. 1906 

„ Khan V Jahan Khan, 50 P. R, 1902 
Hakam Sin^ v. Indar, 46 P. R., 1902 ... 

Hakim Muhammad Ashraf Husain v, Sayed MuhammHd Ali, I. L. R., XXIV .[, 

Mad . 662. 

„ Rai V. Muhammad Din, 83 P. R , 1901 ... 

Hamida Bibi v. Ali Hussain Khan, I. L. R., XVU All , 172 

Hansar. Ram Singh. 36 P. R., 1902 

Har Narain v. Mussammat Deoki, 24 P. R., 1903 

Harak Chand v. Deonath Sahay. I . L. R., XXV Calc. 409 ... [[[ 

Haramaire Dossi v. Hari Charan Ohoudhri, I L. R., XXII Calc, 833 

Hardeo Sahai v, Gauri Shankar, I. L. R., XXVIII All.. 35 

Hari Chand v. Dhera, 12 P. R., 1904 

„ Mohan Singh v. Kali Prosad Chabba, I. L. B., XXXIII Calc, 1 1 
Haniam Singh r. Devi Chand, 107 P. R., 1901 

„ „ V. Jiwan, 7P. B.,1906 
Harrison v. Delhi and London Bank, I. L. R., IV All., 437 
Hassan V. Jahana, 71 P. R.. 1904 ... ... ... "' 

Ali V, Hoshdar AH. 113 P. R., 1890 
Hayat Muhammad v. Fazl Ahmad, 52 P.R.. 1892 
Haxari Lai v. Tilok Chand. 136 P. R., 1893... ... ... \\', 

Hem Raj e. Sahiba, 116 P R., 1901 

Hemangini Dasi v, Nobin Chand Ghose, I. L. R., \1II Calc, 788 .. 

Hikmat UUah Khan v. Imam Ali. L L. R., XII All. 203 

Hint V. Dina, 87 P. B., 1895 ... 

„ Nand «. Secretary of State, 21 P. R., 1906 

,. Singh r. Sher Singh, 29 P. R., 1808 . 
Huj^es r. Pump House Hotel Coy., L. R., 2 K. B. (1902), 195 ... * 



Ibrahim v. Municipal Committee, Lahore, 52 P. B., 1900 

Hahi Bakhsh v Miran Bakhsh, 68 P. R.. 1906 
„ „ V, Shamas uddin, 109 P. R,, 1892 

Hahia r. Qasim. 24 P. R., 1905 

Dam Din v. Mubarak, 140 P. R., 1893 

Imam Din v. Ghulam Muhammad, 86 P. U., 1901 
„ V. Hasan Bibi, 85 P. R., 1006 
„ V. Nur Khan. 10 P. R., 1884 ... 
., V. Wazir Khan, 14 P R., 1890 . 
„ Khan v, Ayub Khan, L L. R., XIX All., 517 

Iradad Ali v, Hurmat Ali, 32 P. R., 1905 ... 

Ishwar Das v, Duni Chand, 27 P. R., 1907 .. 



52 

185 

27,61 

103 

106. 141 

125 



66t 

107.223 
484 

500,674 
61X 



Tl 



TABLE OP CASES CITRD— OITIL— (conW.). 



Name of Case. 



Jagadamba Ohaodhrani tt. Dakhina Mohan Roy Chaodhri, I. L. R., XIII 

Gale, 308, P. C. J.. 
Jagamath Singh v. Budhan, I. L. R., XXIII Calc, 115... 
Jahana r. Chowdri Jiwan Khan, 196 P. R., 1882 
Jai Devi V. Naubat Rai, 71 P. R., 1905 

„ Narain v. Sultan Muhammad Khan, 96 P. E., 1902 
Jainti Prasad V. Bachu Singh, I. L. R., XV AIL, 66 ... 
Jamait-un-nissa v. Lutf-un nissa, I. L. R., VII All., 600 
Jamna V. Machul Sahu, I. L. R , n All., 815 

„ Bibi V, Sheikh Jahan, I. L. R., XXIV AU., 537 ... 

„ Das V. Udey Ram, I. L. R., XXI All.. 117 
Jangi Ram v. Budho Bai, 84 P. R , 1901, F. B. 
Janki Prasad v, Ishar Das, I. L. R., XXl Ail, 874 
Janokey Nath Ouha r. Brojo Lai Guha, I. L. R., XXXm Calc, 757 
Janson v. Drufontain, Consolidated Mines, L. R. H. L. (1902), 500... 
Jarman's Estate Leavers v. Clayton, L R., 8 Ch. Dn., 584 
Jasmir Singh f. Rahmatulla, 7 F R., 1896 .. 
Jasoda Bibi V. Parmanand, L L. R., XVI All., 250 
Jawala V. Hira Singh, 55 P. R., 1 903. F. B. 
Jeshwant Narain v. Vithal Divakai, I. L. B., XXI Bom , 267 
Jhamman Lai r. Kewal Kam, L L. R., XXU AIL, 121 ... 
Jhanda Khan v. Bhadar Ali, 8 P. R., 1893 
Jhangi Ram «. Budho Bai, 84 P. R., 1901, F. B. 
Jhoki Ram V. Malik Kadir Baksh, 12 P. R., 1894 
Jiviv. Gahiya,98P. R., 1801 ... 

Jivraj Ghulab Chand v. Babaji Apa Khadake, I. L. R.. XXIX Bom., 68 
Jiwan V, Hakam Khan, 1*0 P. R., 1894 ... 

„ V. Wazir, 39 P. R., 1887 
Jogal Kishore v. Chammu, 85 P. R., 1905, F. B. 
Jogendro Narain Koonwar v. Ranee Sums Moyee, 14 W. R., 39 ... 
Jotindra Mohan Tagore v, Mohamed Basir Chowdhry, I. L. R., XXXII Calc , 332 
Jowahir v. Radha. 35 P. R., 1905 ... ... 

„ Singh V Mussammat Ram Devi, 1 12 P. R., 1888 
Jowala V, Hari Singh, 55 P. R., 1903, F. B..,. 



Kadir Bakhsh v. Bhagat Ram, 71 P. R., 1888 

V. Ghulam, 74 P. R., 1897 ... ■ ... 

Kailash Mondul c. Baroda Sundari Das, I. L. R., XXIV Oalc, 711... 
Kaka v. Bhola, P6 P. R., 1881 .. 

Kali Krishna Tagore v Secretary of State, 1. L. R., XVI Oalc, 173, P. 0. 
Kalka Dube v. Bisheshar Patok, I. L. R , XXIII All., 162 
Kalu V. Bhupa, 30 P. R , 1893 ... 
Kalu Khan v. Abdul Latif, 45 P. R., 1904 ... ... ... 

Kameswar Pershad v. Rajkumari Ratton Koer, I. L. R., XX Calc, 79, P. C. 
Kamman v. Nathu, 96 P. R., 1892 
Kanaran 17. Kultooly, L L. R., XXI Mad., 110 
Kanhaiya Lai v. Domingo, I. L. R., I All., 732 
„ V. Charati Lai, 4 P. R., 18»9 ... 
Singh t;. Dewa Singh, 27 P. B., 1879, F. B. .. 

Kanye Lall Das v. Shama Cham Dawn, I L. R., XXI Calc, 566 ... 
Karam Dad v. Nathu, 8^ P U., 19')5, F. B. 

Din V. Sharaf Din, 89 P. R., 1898, F. B. 

llahi V. Bahna MaL 21 P R., 1900... 

Shah V, Tara Shah, 87 P. R., 1905 
Kartar Singh v. Mathar Singh, 94 P. R.. 1898 ^.. ... 

Kastur Chand Bhiravdas v. Sagar Mai Shnram, I. L. R., XVII Bom., 418 




1,38 

121 

186 

47, 138 

61 

123 

57 

36 

121 

57 

100 

124 

IC0,126 

61 

75 

27 

132 

108 

28 

5 

123 

126 

9,11 

103 

22 

85 

15 

57 

5 

5 

44 

36 

22 



74 

61 

56 

55 

67 

116 

141 

5 

55 

14 

39 

9 

65 

111 

148 

1 

76.98 

51,90 

44 

94,102,115 
149 



Page. 



14.167 
654 
667 
196,66a 
290,299 
606 
249 
162 
586 
252 
467 
610 
407,616 
283 
393 
107 
631 
605 
110 

84 

604 

614 

49,57 

486 

93 
420 

70 
266 

31 

34 
186 
160 



889 
225 
232 
233 
268 
536 
674 

31 
284 

64 
171 

49 
232 
518 
690 

14 

396. 460 

225, 437 

187 

450,480,534 

694 



ri*ABLB Of CASES CITBD— CIviL— (cowfe^.)' 



Yii 



Name of Case. 



Katik Ram v. Bahu Mai, I L. R., XXVI AIL, 205 ... 

K«medy v. Brown, L. H., 13 C. B., (.N. 8.), 677 

Kesar Singh v. Jawand Singh, U2 P. B., 1881 

Keaar Sin^ r. Punjab Singh, ^ P. R., 1886 

Keshan Mohan Seth v. Gul Mohamed Shahu, I. L. R., XV Calc, 177 

Khaimii v. Akko, 108 B. R, 1892 

Khairu r Fattu, 14 P. B., 19C3 

Khan v. Ifahanda, 32 P. R., 1902 

Khazan Singh v. Maddi, 122 P. R., 1893 

V, Relu, 85 P. R., 1906 
Kherodemoney Dossee v. Doorgamoney Dossee, I. L. K., IV Calc, 455 
Khetter Nath Biswas v. Faizuddin All, 1. L. R., XXIV Calc, 682 
Khudayarv. Fatteh, 8 P. R.. 1906 
» Sultan, 103 P. R., I9ii0 
KhushaUllalt;. PalaMal,4xp. R^ 1898 
King-Emperor v. Billu Mai, 27 P. R., 1904, Cr. 
Kirpa Ram v. Bhagwana, 106 P. R., 1889 
Kisara Rauv. Cripati Dikshatutu, 1 M. II., C. R., 369 
Kishan Dial V. All Bakhsh, 87 P. R., 1890 
Kishen Dial v. Ram Ditta, 20 P. R., 1907 

Kishore Mohan Roy v, thunder Nath Pal, I. L. K., XIV Calc , 648 
Kishori „ „ v. Ganga Bahu Debi, I. L. R., XXXIII Calc, 228, P. C. 
Krishna Behari Boy r. Banwari Lai Roy, I. L. R., I Calc^ 144, P. C. 
Kuriyali v. Mayan, I. L. B., VII Mad., 255 ... 



Labh Sin^ v. Gopi, 15 P. R., 1902 
Labhu V. Hira Singh, 41 P. R., 1899 
Labhu Bamv. I^^Hhi Ram, 57 P. K., 1905 

Singh r. Gurditta, 46 P. R., 1882 
Lachman Singh v, Mohan, I L. R., II All.. 497, F. B. 
Lachmiv Tota, 16 P. M., 1888 
Lacho Bai V. Asa Nand. 144 P. R., 1862 
Ladhu V. Daulati, 126 P. K., 1890 
Lakh Ram v. Secretary of State. 46 P. R., 1897 
Lakha v. Munshi Kam, 80 P. U., 1900 
Lakhmi Das t. Kisben Chand, 9 P. R., 1884 

Lakhshmana Chetti v. Chimathamhi Chetti, I. L. B., XXIV Mud., a26 
Lai Din v. Mussammat Jainan, 114 P. R.. 1893 
Lall Sin^ -. Kunjin, L L. R., IV All, 387 
Lashkan Mai v, Ishar Singh, 94 P. R., 1902 
Lawless v. Mansfield, 1 Dr. and War., 557 ... 
Lucky Cham Chowdhry v, Budur-unniissa, I. L. R.. IX Calc, 627 
Lurkhur Chaube v. Ram Bhajan Chaube, All, W. N. (1903), 214 

Madan Gopal **. Sheo Singh Rai, 54 P. R.. 1881 

Madho Pershad v. Gajudhar, I. L. R., XI Calc, 1 1 1, P. C. 

V, Mehrban Singh, I. L. H., XVm Calc, 157 
Maha Ram v Ram Mahar. 1 P. R, 1903, F. B. 
Mahabir Prasad r. Shah Wahid Alam, AIL, W. N. (189 1), 152 ... 
Mahant Ishrargar Budhgar v. Candasama Amar Singh, I. L. R., VIII Bom., 548 
Maharaj Narain v Banoji, 84 P. R., 1907 ... 
Maharaja, Vizianagram p. Lingam Krishna Bhupati, 12 M. L. J., 473 
Mahbub Jan v Nurud-din, 102 P. R., 1905 
Mahomed Khan «. Fida Mahomed, 82 P. H., 1868 




100,126 

61 

55 

48 

97 

55 

15 

124 

33,87.115 

94 
132 

92 
15,127 
134 
121 

62 

4G 
148 

90 
114 

74 

70 

57 
5 



27,32 

57 
149 

13 

57 
105 

99 

23 

74 
12a 

99 

4 

8 

121 

133 

61 
121 

84 



Gl 

46, 1C5 

150 

71 
109 

52 

99 
121 
132 

3t 



466,616 

292 

233 

197 

456 

■ 234 

71 

610 

130,426,531 

450 

631 

440 

71,618 

643 

569 

348 

192 

689 

437 

525 

389 

t82 

205 

31 



62,154 

204 
694 

62 
26G 
494 
463 

94 
389 
607 
464 

29 

45 
569 
638 
291 
587 
412 



335 
193, 494 
697 
384 
510 
226 
462 
560 
634 
122 



Viii 



TABLd OF 0A3BS CtTED-^ClTlL— (con^). 



Name of Case. 




Mahtabuddin V. Karam nahi, 73 P. R., 1898 

Malak Torab r. Anokh Rai, 18 P. B., 1891, F. B. 

Malik Rabim Bakhsh r. Mussammat Fakhanmnissa, 31 P. R., 1898 

Malkarjun v. Narhari, I. L. R., XXV Bom., 337 P. C. 

Malla V. RaUia Bam, 71 P. R , 1908 

Maloji v. Sagaji, L L. R., Xm Bom., 567 ... 

Mam Haj v. Chandwa Mai, 117 P. R., 1891 

Mamon v. Gbaunsa* 99 P. R., 1906 

Man Singh v. Mehta Hari Narrain, I. L. R., XIX Bom, 807 ... :.. 

Mangal v. Sahib Ram, 1 L. B., XXVII All . 544 

„ Singh «. Jindan, 27 P. R., 1886 
Mani Lall «. Baifeara, I. L. B.. XVII Bom., 898 
Mansab Ali v. Nihal Chand, I.L. R., XV All, 359 
Marghub Ahmad r. Nihal Ahmad, All. W. N., (1899), 55 
Marice v. The Bishop of Durham, 9 Ves 399; 10 Ves., 522 
Mart and Balkishna Bhat r. Dhondo Damodar Kulkarni, I L. H., XXII Bom , 
624 ..... 

Mafihiatimnissav. Rani, I. L. R., 13 All, 1 F. B. 
Masta V, Pohlo, 62 P. R., 1896 ... 
Maula Bakhsh v. Muhammad Hakhsh, 54 P. R., 1906... 
Mehar Singh v. Gurbachan Singh, 146 P. R., 1906 
Mehr Khan v. Karam Ilahi, 13 P. R., 1902 .. 
Mehtab Roy v. Amir Chand, 189 P. R , 1882 
„ Singh w. Hakim, 114 P. R., 188S ... 
Mela Ram v. Prema, 109 P. R., 1900 
Mewa Singji v. Nathu, 22 P. K., 1894 ... ... ... ' .., 

Mian Khan v. Mehr Khan, 107 P. R., 1894... 
Millard, In re :, 1. L. R., X Mad., 218 
Miran Bakhsh v, Ala Ditta, 126 P. R., 1894 

„ „ V. Rahim Bakhsh, 18 P. R.. 1892 

Misir Raghobar Dial v. Sheo Bakhsh Singh, I. L. R., IX Calc, 439 
Mohen v. Mutsaddi, 109 P. R., 1894 
Mohibullah v, Imami, I. L. B., IX All . 229 
Uohima Ghander Mazoomdar \\ Mahesh Ghandar Neoghi, I. L. R , XVI Gale, 

473 P C 
Mokanda v.Balli Singh, 84 P. R., 188* "'., *!! "/. !!! 

Monijan Bibee v. Khadem Hossein, 9 Calc. W, N., 151 
Moorooly v. Baboo Huree Ram, 8 W. R., 106 
Morris V Hunt, 1 Chitt , 644 ... 
Motan Mai v. Kirpa Ram, 79 P. R., 1906 ... 
Moti V, Sayad Ahmad Shafi. 29 P. R., 1896... 
Moti Ram v. Sant Ram, 103 P. R., 1902 ... 

„ Sahu v. Ghattri Das, I. L. R., XIX Gale, 780 ... 
Mouladad V. Ram Gopal, 22 P. R., 1900 ... 
Moung Htoon Dung, 21 W R., 297 
Mugan V. Rowlands, L. R., 7 Q. B. D., 493 
Muhammad v. Hayat Bibi, 109 P. R., 1891 

„ V. Manu Lai, I. L. R., XI AH., 386 

„ V. Mussammat Umar Bibi, 129 P. R., 1893 

„ Abdul Ghaffoor v. Secretary of State, 56 P. R., 1807 ... 

„ Ahmad v, Muhammad Siraj-uddin, I. L. R., XXIII All., 423 

AH r. Hyat, 118. P. R.,.1878 ... 

„ Ayub Khan v. Rure Khan, 95 P. B., 1 901 

„ Bakhsh w. Morton, 194 P. R., 1888 

„ Din V. Fatteh Muhammad, 24 P. R., 1906 ... 

„ „ «. Sadar Din, 67 P R., 1901 

„ Hassan v Ghous Bakhsh, 49 P. R., 1880 ... 

„ Hussain v. Sultan Ali, 54 P. R., 1903 



124 

4 

67 

1,88 

46 

43 

43 

6, 13, 67 

121 

lii3 

69 

36 
121 
lt9 

75 

2 
32 
44 
8,102 
114 
15 
47 
75 
47 
45 
15 
49 
15 
84 
hf 
76 

5 

53 

99 

78 
136 

61 
149 
149 

94 
123 

11 

61 

28 
104 

43 

14 

73 

123 

121 

124,183 

01 

102 

1 

31 

99 



609 
29 
244 
13, 167 
192 
182 
181 
36,63,374 
587 
638 
277 
162 
653 
510 
393 

20 

128 

185 

43,479 

62*} 

71 
195 
389 
194 
190 

71 
204 

71 
417 
252 
396 

31 

228 
463 
899 
656 
' 293 
694 
694 
460 
606 

57 
284 
115 
489 
182 

64 
388 
604 
662 
610,638 
289 
477 

13 
122 
465 



lABLg OF OASBS CITED *-Ciy]L—(cOft^). 



IX 



Name of Case. 




Page. 



Muhammad Imam All Khan v. Husain Khan, I. L. R., XXVI Calc, 81 P. 
Khan v. Atar Khan, 121 P. U., 1886 

„ V. Fida Muhammad, 82 P. B., 1868 ... 
Nawaz Khan v, Mussammat Bobo ScJiib, 44 P. K., 1903 
Salamatulla v. Jalal-ud-din, 24 P. R., 1887 
Bidick V, Haji Ahmed, 1. L. R., X Bom., I 
Umar v, Kirpal Singh, 78 P. R., 1904 
Wahid-ud-din i;. Hakiroan, I. L. R., XXV Calc, 757 ... 
Muhammadi Begam v. Faiz Muhammad Khan, Note, to 35 P. R., 1901 
Mnkarrab v. Fattu, 88 P. R., 1895 
Mukhi V. Fakir, I. L. R., 3 All.. 382 . ... 
Mula r. Gandu, 92 P. R., 1902, F. B. 
Mulo V, Phnlo Missar, 10« P. R., 1888 
Mvmakahi Naidoo's case, L. R., 14 1. A., 165 
Munji Khetse/s case, I. L. R., XV Bom., 279 
Murad v. Mine Khan, 94 P. B., 1895 
Mussammat Amna v. Mussammat Askari Beg^un, 9 P. K., 1883 

„ Anundmoyee Chowdhodrayan v, Sheeb Ghunder Roy, 8 

1 A 287 
„ Bakht Begran v. Faja Khan, 1C4 P. B., 1881* 
„ Bano V. Faleh Khan, 48 P. R., 1903, F. B. ... 
B^^un w. Nur Bibi, 45 P. B., 1892 
Bhats V. Fatu, 171 P. R., 1889 ... 
„ Bibi Hukam Kaur v. Sardar Asa Singh, 1 P. R., 1900 ... 
„ Desi v. Lehna Sin^h, 46 P. B., 1891 
„ Fakharunnissa v. Malik Rahim Bakhsh, 23 P. R., 1897 
„ Fatima v. Ghulam Muhammad, 172 P. R. 1889 
„ „ Begpa V. Muhammad Zakaria, 96 P. R., 1895 ... 

„ Ganeshi Bai v. Ganesha Ram, 148 P. U., 1890 
„ India Bai v. Gadu Dhar, 28 P. R., 1895 
„ Jaidevi v. Harnam Singh, 117 P. R., 1888 ... 
„ Jawali V. Karam Sing^, 47 P. R., 1892 
„ Jindwaddi r. Hussan Shah, 41 P. R., 1895 ... 
„ Karam Kaur i^. Mussammat Kishen Devi, 39 P. B., 1896 
Khamo v. Fazl Din, 176 P. R., 1888 
Kirpi V. Solekh Sinrfi, 67 P. K., 1904 
„ Lachmi v, Tota, 16 P. R., 1888 
„ Lacho Bai v. Asa Kand, 144 P. R., 1882 ... 
„ Lakhan v. Rahmat Khan, 101 P. R., 1895 ... 
„ Mirjan v. Bahmat, 81 P. ](., 1893 
„ Nur Jahan t^. Aziznddin, 108 P. R., 1895 ... 

Pana Bibi v. Khodayar, 81 P. R., 1879 
„ Salamti Jan v. Muhammad Shafi, 61 P. R., 1893 
„ Shakro v. Molar Mai, 68 P. R., 1879 
„ Sharfan v. Kammn, 115 P. R., U98 
Mustafa Khan v. Phulja Bibi, I. L. R., XX VH Ali, 526 
MusU r. Bholaram. L L. B., 16 All., 165 ... 
Muthnraman Chetti v. Ettappasami, I. L. R., XXII Mad., 872 



Moo., 



3>T 

Nabi Bakhsh v. Fakir Muhammad, 25 P. R., 1903 
Nam Narain Singh v. Raghu Nath Sahai, I. L. ]l.,X]X Calc, 
Nana Lai Bai v, Bonomali Lahiri, I. L. R., XI Calc, 544 
Nanak «. Nandu, 29 P. R., 1904 
Nanak Chand i;. Mussammat Dayan, 103 P. R., 1894 ... 
„ „ V. Ram Chand, 77 P. R., 1901 
„ „ V. „ Narain I. L. R., UAU., 181, F.B. 



678... 



44 


184 


15 


73 


16 


77 


26,124 


104, 610 


47 


196 


49 


201 


44 


186 


100 


467 


35 


154 


15 


72 


121 


558 


45,57 


190,264 


99 


464 


121 


577 


63 


357 


48 


197 


121 


560 


1 


7 


135 


651 


15,96 


72,454 


103 


486 


15 


72 


71 


384 


134 


645 


57 


240 


134 


649 


57 


246 


99 


463 


57 


269 


134 


645 


49 


199 


184 


647 


37 


162 


16 


72 


87 


426 


46 


192 


99 


462 


89 


438 


15 


70 


21 


91 


15 


70 


135 


651 


3 


23 


15 


70 


84 


417 


28 


110 


2 


21 



••. 


3,106 


23,500 


... 


109 


508 


... 


121 


592 


••* 


69 


379 


••* 


150 


697 


•.. 


56 


236 


■- ■■ 


66 


872 



tABLB or 0A8B8 CITBb^OITIL— (con^.)- 



Name of Case. 



Nand Ram v. Muhammad Bakhsh, I. L. R., 11 All., 616 
Nanha V. Kure, 8 P. R., 1896 .. 
Narain Das v, Faiz Shall, 167 P. H.. 1889, F. B. 
Karasayya v, Ramabadra, I. L. R., XV Mad., 474 
Natchiaram Mai v. Gopala Krishna. 1. L. R., n Mad., 126 
Katha Singh v, Mohan Singh, 98 P. R., 1906 
„ V. Sadik AU, 20 P. R., 1900 ... 
„ „ V. Sujan Singh, 34 P. R., 1899 
Nathoo Lai r. Badri Pershad, 1 N. W. P., 1 
Nathu v. Bnta, 27 P. R., 1881 ... 

„ Lai V. Jafar, 20 P. R., 1905 

„ Sin^^v.Rura, 14P. B., 1881 
Nawab v. Wallan, 91 P. R., 1906 

„ Mohammad Kabir Khan v, Mussanmiat Bhag Bhari, 17 P. R., 1897 

„ „ Mumtaz Ali Khan v. Khan All Khan, 86 P. R., 1S97 

Nawal Kishore v. Amir Khan, 122 P. R., 1896 
Nek Muhammad v. Sattar Muhammad, 63 P. R., 1896 
Niaz Ali v. Ahmad Din, 109 P. R., 1882 ... 
Nihal Chand v, Premi Bai, 148 P. R., 1890 Note 

„ „ v. Rai Singh, 43 P. R., 1892 ... 

„ Singh V. Chanda Singh, 140 P. R., 1890 
Kihala r. Ishar Singh, 68 P. R., 1894 

Korendra Narain Smgh v. Dwarka Lai Mundor, I. L. B., Ill Calc, 397, P. C 
NumjiKhetsey'scaee, I.L. R., XVBom.,27P 
Nur Husain v. Ali Sher. 83 P. R., 1905 ... 

„ Muhammad v. Alimulla, 75 P. R., 1892 
Nura r. Alia Ditta, 132 P. R., 1889 

„ V. Tora, 46 P. R., 1900 ... 



OUivant Rahimlulla. L L. R., XH Bom., 474 



Pala Mai V. Maya, 146 P. R., 1890 

Pandari Nath Bapuji v. Lila Chand Hatibhai, I. L. R., XIlI Bom., 237 
Panna Lai v. Bhagwan Das, 10 P. B., 1902 ... 
Parbathi Bibee v/Ram Barun Upadhya, I. L. B., XXXI Calc, 895 ... 
Parma Nand v. Secretary of State, 44 P. R., 1904 
Parmanandv. DaulatRam,i L. B., XXIV AIL, 549 ... 
Parahram Vamaa v. Hiraman Fatu, I. L. B., VllI Bom., 413 
ParUb Singh v. Kishan Dyal, 130 P. B., 1890 
Panrathi Ammal v. Samivatha Ourukal, I. L. R., XX Mad.. 40 ... 
Pasupathy Ayyar «. Kothanda Rama Ayyar, I. L. R., XXVIIl Mad., 64 
Patcha Saheb v. Sub-Collector of North Arcot, I. L. R., XV Mad., 78 
Penbearow v, Parteb Singh, 76 P. R., 1899 
Porindi V. Angappa, I. L. R., VII Mad., 423 
Phallu V. Mukarrab, 158 P. R., 1888 

Phugiranbutti Chaudhrani v. Forbes, L L. R., XXVIIl Calc, 78 ... 
Fhumman Mai v. Kema, 75 P. B., 1901 
Phundo V. Jangi Nath, L L. B , 15 All., 827 
Pleader of the Chief Court, In the matter of—, 69 P. R.. 1904 
Pounaaami Mudali v. Mandi Sundara Mudali, I. L. B., XXVII Mad., 265 
Frabh Singh «. Bal Kishen, 6 P. B., 1895 
Pragi Lai v. Maxwell, L L. R., VII AU., 284 
Prtm Chand Burrel v. Secretary of State, I, L. R., II Calc, 1 03 ... 
Prince V. Beathi, 82 L. J. Ch. N. S., 734 




121 

101 

57.111 

19 

86 

28,94 

140 

1,81 

61 
140 

10 

48 , 

14 

28 

47 
. 21 

55 

96 

99 
186 

57 

76 

46 

68 

29 

94 
125 
1,15 



58 



Page. 



558 

469 

249,518 

87 
162 
95,450 
671 
9,405 
318 
671 

55 
182 

64 
110 
195 

91 
233 
454 
463 
656 
267 
395 
193 
362 
119 
451 
612^ 
9,72 



^72 



55 


233 


116 


535 


7 


41 


75 


393 


63 


860 


2 


20 


61 


286 


128 


604 


1 


13 


5 


84 


J 28 


606 


64 


H65 


48 


182 


27 


107 


57 


267 


56 


286 


67 


269 


61 


281 


126 


616 


116 


686 


149 


694 


63 


862 


61 


324 



TABLE OF CASES CITED • CIVIL— (cOW^li.). 



XI 



Name of Case. 




571 

300 



Pulandar Singh v. Jwala Singh, I. L. R., XX All., 516 

Pandit Rama Kant r. Pundit Ragdeo, GO P, R., 1897... ..'. 

Puran Chand v. Mahadeo, t39 P. U ., 1900 

Q, 

Queen v. Burah, L. R., 3 App. Cas., 889 ... 
Quinn v, T^than, L. R., App. Cas., (lOOl), 506 

R. 

Radha Nath Singh r. Chandi Charan Singh, I. L. R., XXX Calc, cm 

Prashad r. Ilirde, 00 P. H., \fsH:\ 
Raghu Mai r. Bandu, 31 P. R., 1907 ... ... .;.' 

Raghunath Ganesh v, Mulva Amad, I. L. R., XII Bom., 440 

Kahiip Bakhsh v. Ghulami, 65 P. R., 1893 ... 

Rahiman Khan v. Pateba Miyah, I. L. U., IV Mad., 285 

Rahimuddin r. Rawal, 66 P. R., 1903, P. C. 

Kahmed v, Raheya Bibi, 1. Norton's L. Cas., 12 

Rai Charan Ghose v, Kumud Mohun Bntt Chowdhry, I, L. R., XXV Calc, 

Raj Narain Purkait u. Ananga Mohan Bhandari, I. L. R., XXVI Calc, 598 

Raja Bikrama Singh v. Prab Dial, 129 P. R., 1889 

„ Har Narain Singh v. Chaudhrani Bhagwant Kuar, I. L. R., XIII All . 
P. C. ... ... ... ... . 

„ Nur Khan V. Mussammat Darab Khatun, 25 P. R , 1889 ... 
Rajindra Nath Banerjee, I. L. R., 32 Calc, 343 ... ... "* 

Rajjo V. Lahnan, I. L. R., V All., 180 

Rajkishori Koer r. Madan Mohan Singh, I. L. H., XXXI Calc, 75 ... 

Ralia Ram v. Kalian Khan, 108 P. R., 1886 ... ' ... 

Ralla V. Budha, 50 P. R., 1893, F. R. 

Ralla Mai v. Mussammat Malan, 8 P. R., 1905 
Ram Bhaj v. Devia, 123 P. R., 1881 

„ Chand V. Dur^ Prasad, I. L.R., XVI All., 61 ... 

„ Chandra Jiwaji, I. L. R., X Bom., 28 

„ J, Kastur Chand v. Balmokand Chaturbhuj, I, L. R., XXIX Bom., 
71 
Ram Chandra Pandurang Naik v. Madhav Purushottam Naik, I. L. R., XXVI 

Bom., 23 
Ram Coomar Coondoo v. Chunder Canto Mookerjee, I. L R., II Calc, 238 ... 

„ Ditta V. Ibrahimuddin, 122 P. R., 1889 

„ Gopal V. Piari Lai, I. L. R., XXI All., 441 

„ Hit Singh v. Narain Rai, I. L. R., XXVI All.. 389 

„ Kumari, In the matter of, I. L. R , XVHI Calc, 264 

„ Pershad r. Sachi Dosi, 6 0. W. N., 585 

„ Narain r. Maharaj Narain, 3 P. R , 1904 

„ „ Singh V. Sewak Ram, 21 P. R., 1906 

„ Nath V. Badri Narain, I. L. R., XIX All , 148, F. B. 
„ V. Kerori Mai, 38 P. R., 1904 ... 

„ Singh V. Jowala Singh, 55 P. R., 1896 
Rama t?. Varada, I. L. R., XVI Mad., 142 ... 

„ Nand r. Surgiani, I. L. R., XVI All., 221 
Raman Mai v. Bhagat Ram, 17 P. R., 1895 .. 
Ramanadan v. Rangammal, I L. R., XII Mad., 260, F. B. 
Ramanathan Chetti v. Muruguppa Chetti, I. L. R., XXIX Mad., 2«3, P. C. ... 
Ramani 0. Bramma, I. L. R., XV Mad., 368 
Ramaswami Ayyar v. Vithinatha Ayyar, I. L. R., 26 Mad., 760 
Ramjas v. Bura Mai, 42 P. R., 1906 
Ramji Das v. Charanji Lai, 45 P. R., 1877 . 
Ramsebuk v. Ram Lai Koondoo, I. L. R., VI Calc , 815 



55 
121 

76 



50 
121 



121 
121 

16 
5 

91 
5 

90 

49 

57 
121 

28 

89 

95, Note to 

63 

133 

123 

47 

f 81,85 

( 86,87 

32 

28 

55,133 

43 

146 

121 

61 
132 
124 
124 

49 
28,120 
1, 34. 102 

27 

48 

10 

45 

116 

34,99 

67 

:h6 

78 

43 

55 

26 

18 
149 



Pago. 



234 
551 
896 



211 
564 



55i, 

569 

77 

31 

438 

31 

436 

204 

251 

567 

111 

434 

453 

362 

' 640 

606 

195 

405,419 

423,425 

128 

110,114 

234,638 

181 

685 

558 

634 

610 

610 

300 

110, 548 

13,134,476 

106 

198 

55 

190 

6S6 

147, 462 

374 

162 

399 

182 

234 

104 

85 

684 



XII 



TABLE OF CASES CrTRD — CIVIL— .(r^m^^.)* 




Rftmzan All V. Basharat Ali, 105 P. R.. 1901 

Ranchhod Das v. Jeychand, I. L. R., VIII Bom., 405 ... 

Ranee Usmat Koowar v. Tayler, 2 W. R., 307 

Ran^yya Goondan v. Nanjappa Rao, I. L. R., XXTV Mad., 491 ... 

Ranjha v, Mussanunat Rahim Bibi, 28 P. R., 1877 

Rash Beharee Lai v. Bebee Wajun, 11 W. R. 516 

Kasiil Khan v. Mussammat Mastur Bano, 81 P. R., 1894 

Rattan Chand v. Ram Parshad, 69 P. R., 1906 

Read tn Browne. L. R.. 22, Q. B. D., 128 

Roda w. flamam Singh, 102 P. R., 190J 

Roeback v. Henderson, 54 P. B., 1896 

Rojendra Nath Mullick v. Luchhimoni Dassee, I. L. R., XXIX Oalc, 595 

Bukan Din v. Ham Din, lOO P. R., 1900 

Rukna v. Kahn Sin^, 179 P. R., 1888 

Ronohordas Vandravandas ^. Parratibai, I. L. R.. XXIII Bom., 725 
Rura Mai v. Euria, 62 P. R., 1894 

S 

Sadasook Agarwalla v. Baikanta Nath, I. L. R., XXXI Oalc., 1043 
Sahib Dad v. Rahmat, 90 P. R.. 1904, F. B. ... 

Ditta ». Roda, 83 P. R., 1902 

Sajednr Raja V. Baidyanath Deb. I. L. R. XX Oalc, 397 

tj. Gour Mohem Das, I. L. R.. XXIV Oalc, 418 
Samiv. Soma Sundra, T. L. U.. VI Mad.. 119 
Samman v. Ala Bakhsh. 106 P. R., 1901 ... 
Sant Singh v. Jawala Singh, 58 P. B., 1899... 
Sardar Khushal Singh i?. Purau Singh, 156 P. R., 1888 

„ Wasawa Si^ v, Sardar Arur Sinrii. Z'i P. R.. 1900 
8aad«gar Singh v. Sant Ram. 103 P. R.. 19o6 
Savitri v. Ramji, I. L B.. XIV Bom.. 232 ... 
Sayad Abdul Hak v. Gulam Jilani, I. L. R., XX Bom., 677 

„ Hussein Mian v. Oollector of Kaira, I. L. R., XXI Bon., 48, 257 
Sayid Mazhar Hussain v. Mussammat Bodha Bibi. I. L R., XVII All., 112 . 
Secretary of State V. Sukhdeo, I. L. R . XXI All., 841 ... 
Sewa Singh v. Budh Singh. 66 P. R.. 1S92 .. 

Sha Karam Ohand v, Ghela Bai, I. L. R., XIX Bom., 34 

Shama Charm Pramanik r. Prolhad Durwan, 8 C. W. N., 390 ... 
Sundram Iyer v. Abdul Latif, I L. R., XXVII Oalc, 61 ... 
Shamas Din v. Ghulam Kadir, 20 P. 11., 1891. F. B. 
Shan Magam Pillai v. Syed Ghulam Ghose. I. L. R., XXVII Mad., 1 16 
Shankar Bakhsh v. Daya Shankar, I. L. R., XV Oalc . 422 
Sharfuddin v, Kabia. 64 P. B., 1892 
Sheikh Khoorshed Hossein v. Nabbee Fatima, I. L. R., Ill Oalc, 351 

„ Shahr Yar V. Imamuddin, 38 P. R., 18S5 
Sheo Narain V. Hira, I. L. R., Vn All., 535 

Sher Jang v, Ghulam Muhiuddin, 22 P. R., 1904 ... ... I 

., Muhammad v, Fatteh Din, 6 P. R., 1902 

„ „ V, Phula. 9 P. R., 1899 

Shib Gharan Lai v, Ragu Nath, I. L. R., XVII AU., 1 74 
Shibbu Mai v. Paira Singh, 86 P. R., 1877 .. 
Shlrcorev. Queen- Empress. 15 P. R, 1897, Or. • . 
Shirekuli Tunapa Hegade v. Ajjibal Narashiao Hegade, I. L. R., XV Bom., 297 
Shivram Hari v. Arjan, I. L R., V Bom., 258 
Shrimant Sagijirao v. Smith, I. L. R.. XX Bom., 736 ... 
Shrinivas Murar v. Hanmant Ohavdo Deshapande, I. L. R., XXIV Bom., 260, F. B. 
Shurut Soonduree Dabee v, Puresh Narain Roy, 12 W. R., 85 
Sinam Mai v. The Administrator-General of Madras, I. L. R . VIII Mad., 169 ... 



53 
132 

61 

28 

15 
5 

15 
149 

28 

1,103 
12, 121 

6i 
133 
136 

75 

97 



132 

30 

121 

78 

78,110 

43 

104 

103 

123 

I 

59 

71 

39,61 

78,110 

52 

1 

78 

116 

66 

4 

57.111 

28 

43 

15 

57 

7 

133 

29,96,115 

89 

16, 103 

57, 121 

43 

61 

149 

61 

121 

I 

5 

49 



228 

634 

290 

113 

70 

32 

71 

694 

109 

9. 485 

60, 567 

291 

638 

658 

393 

- 456 



634 

121 

560 

400 

400, 512 

182 

489 

485 

604 

13 

270 

384 

171. 292 

400, 513 

226 

7 

399 

536 

372 

2« 

251.517 

113 

180 

70 

268 

41 

639 

118.454. 

530 

171 

71,486 

270, 692 

182 

290 

694 

286 

563 

13 

31 

202 



TABLt or OAna cmo^imtu^eontd.). 



xnx 



Name of Oase. 


No. 


Page. 


8iU Ram v. Bhawani Din Ram, I. L. R., XXVI All., 105 


89 


434 


,. „ V. Raja Ram, 12 P. R., 1892 


134 


648 


Situl Pershad v. Manohur Das, 23 W. R., 325 


148 


689 


Skinner v. Orde, I. L. R., U AU., 241 , P. C. 


123 


606 


Smith r. Massey, I L. R , XXX Bom, 600 


75 


893 


Sobha Singh v. Lorinda Mai, 99 P. R.. 1901 


61 


290 


Sohan Singh v. Diwan Ghand, 178 P. R., 1905 


102. 


477 


Sohava Mai r. OhaUa Mai, 154 P. R., 1882 .. 


6 


87 


Sohna v. Mosam, 23 P. R., 1895 .. 


45 


. 190 


SohnaSingJi v. Dipa Shah, 15 P. R., 1902 .. 


102 


480 


Somasondara Mudali v. Kulandaivelu Pillai, I. L. R., XXVIII Mad.. 457 


67. 102 


264.477 


Somayya r. Subamma. I. L. K., XXVI Mad., 6ol 


121 


563 


Sookh Moyee Chowdhrani v. lUghubendro Naram Ohowdhry, 24 W. R., 7 


22 


93 


Soorja Koer v. Nath Bakhsh Singh. I. L. R., XI Calc. 102 


86 


160 


Soorjee Monee Davee r. Suddamind Mahapatter, 12 B. L. R., 804, P. C, 
Sri Narain V. Daulat Kam, 9 P. B., 1889 .. 


57 


265 


5 


31 


Stewart's Trusts, In re : L. R., 22 L. J. (N S.), 389 ... 


17 


83 


Snbbaraya Chetti v. Sadasiva Chetti, I. L. R., XX Mad., 491 


19 


87 


Subbayya v. Sammadayyar, I. L. R., XVIII Mad., 496 ... 


121 


687 


Subodini Debi v. Camar Ganoda Kant Roy, I. L. R., XIV Oalc, 400 


149 


694 


Soehet Singh V. Banka, 90 P. R., 1891 


88 


432 


Suddari Letani v. Pitambari Letani, I. L. R , XXXII Oalc., 871 ... 


49 


204 


Sukh Dial v. Anant Ram, 131 P. R., 1894 .. 


39 


171 


Saltan Bakhsh v. Mussammat Mahian, 46 P. S., 1894 ... 


89 


433 


Sander Singh w. Mehr Singh. 54 P. R., 1907 


68 


376 


Sapat Singh v, Imrit Tewari, I. L. R., V Calc, 720 

Sorendra Kumar Basu v. Kunja Behari Singh, I. L. R., XXVTI Calc . 814 ... 


8 


23 


123 


606 


Sorjan v, Lalu. 175 P. R.. 1888 


72 


886 


Surjomoni Dye v. Sadanand Mohapatta, 15 I. A , C6 ... 


28 


114 


Surup Sinflh t*. Mussammat Jassi, 22 P. R., 1891 
Syad Rasul v. Fazai, 7 P. R.. 1891 

Tabram v. Home, 6 L. J. K. B., 24 


83 


130 


16 


71 


61 


323 


TaggE r. Allah Bakhsh. 69 P. R., 1001 ... 


86 


104 


Taiammal Husain v. Uda. I. L. R., Ill All., 688 

TalemandSinrfiv. Rukmina, I.L.R.,niAll., 353 ... 

Tancred v. Delagpa Bay and East Africa Ry. Coy., L. R.. 23 Q. B. D., 239 ... 


141 


674 


36 


160 


9 


50 


Tara Kant Bannerjee v. Puddomney Dossee, 5 W. R., 63, P. C. 


121 


592 


„ Sinrfi V. Muhammad, 74 P. B., 1903 .. 
TeUey V- Jai Shankar, L L. R ., I All., 726 . . . 


128 


604 


62 


226 


Thakar Das V. Beechey, 49 P. R . 1906 


61 


891 


Thaleri Pathumma v. Thandora Mammad, 10 M. L. J., 110 


2 


20 




148 


689 


Thiruvwigadathiengar v, Vaidinatha Ayyar, L L. R., XXIX Mad., 303 


too 


467 


Tikaya Ram v. Dharam Chand. 45 P. R., 1895 


16 


78 


Topan Mai V. Ditta, 47 P. L. R.. 1905 


124 


610 


Tota a. Abdulla Khan, 66 P. R., 1897 

Umar Din i;. Alia Bakhsh. 64 P. R., 1901 , F. B. 


11 


57 


97 


456 


,. Khan v. Samand Khan. 145 P. R., 1894 


88 


488 


Umersey Premji v, Shamji Kanji, I. L. R.. Xm Bom.. 119 


89 


484 


Umesh Chandra Das r. Shib Narain Mandal, I. L. R., XXXI Calc, 1011 


98 


440 


Uttam Sinfi^ V. Buta Singh, 67 P. L. R., 1903 


66 


868 


„ r.JhandaSingh,21P.R.,1896 


1 88, 40, 87 


189, 178. 
486 



X17 



TlBLl Of CASKS CITED--CIVIL— («OncW.)* 



Name of Case. 



Vodapuratti v. Vallabha Valiya Baja, I. L. R^ XXV Mad., 300, F. B. 

Veerana Pillai v. Muthu Kumara Awry, I. L. R., XXVII Mad., 102 

Veeraswamy v. Manager, Pittapur Estate, I. L. R., XXVI Mad., 518 

Velu Pillai r. Ghose Mahomed, L L. R., XVII Mad ,293 

Venkatammal v. Andyappa Chethi, I. L. R., VI Mad.. 130 

Venkatapathi Naidu v, Tirumalai Chetti, I. L. B., XXIV Mad., 447 

Vilayat Uusen v. Maharaja Mahendra Chandra Nandy, I. L. R., XXVIII All , 88 

Vir Bhan v. Mattu Shah, 68 P. E., 1902 ... 

Viraraghada r. Venkata, I. L. R., XVI Mad., 287 

Vitthilinga Padayachi v. Vithilinga Mudali, I. L. R., XV Mad., Ill 

Wasawa Singh v. Arur Sinrfi, 33 P. B., 1900 

„ „ V. Bura, 24P.R., 1895 
Wasdoo V. RapChand. 23 P. R., 1905 
Wasil v. Muhammad Din, 93 P. R., 1904 ... ... ... .., 

West Hopetown Tea Companv, Limited, I. L. B., IX All., 180 
Williams V. Brown, I. L. R.,vni All., 108 



ZafaryahKhan v. Fatteh Bam, 100 P. R., 1898, F. B. ... 
Zahar Khan v, Mustajab Khan, 55 P. R., 1899 
Zainab Begam v. Munawar Hussain, I. L. R., VFII All., 277 
Zulfikar Khan v. Collector of Mianwali. 90 P. K., 1005... 



No. 



Page. 



43 


182 


55 


232 


120 


518 


132 


635 


36 


162 


120 


54S 


120 


548 


56 


236 


5 


31 


57 


251 


85 


420 


46 


192 


57 


267 


82 


406 


148 


699 


121 


569 


55 


233 


141 


074 


121 


578 


63 


361 



dlmt domt of t!)e punfab. 
CIVIL JUDGMENTS. 



I. 



No.1. 

Before Mr. Justice Johnstone and Mr. Justice Battigan. 

MUHAMMAD NIAZ-UD-DIN KHAN,~(Dbfehdaot),— 

APPELLANT, 

^^^^ [appelut. Sidb. 

MUHAMMAD UMAR KHAN AND OTHERS,— (Plaihtiffs),— ) 
RESPONDENTS. ^ 

Civil Appeal No. 129 of 1902. 

Outtom^AlUnaHon-^ift of land inh$rited hy daughter in favor of her 
adopted %on — Suit by reveteioner of the \aei male o^ner for poaession on 
ground that the giftvHU invalid as against them — Plea of estoppel by conduct 
of aequieeeence- Inducing person to beiieve in and act upon the truth of 
ati^hingSvidencs Act, 1872, Section llh^Limitatiof^-- Limitation Act, 
1877, Schedule II, Article llS—Ansari Sheikhs of Basti Danishmandan, 
Jullmndur District, 

In 1882 'J/ a sonlett Ansari Bheikh of Basti Daoiibmandan in the 
Jalhmdnr District, giftsd his anoestral land in lien of his wife's dower to 
his daoghter If, whioh in acoordanoe with the wishes of the dooor passed 
on her death in 1848 to her hasband 'S.* In 1851 'S* in tarn gifted the 
•aid prepenj along with what he had inherited from his own father to 
bis daughter ' Z ' in lieu of her mother's dower. Z married B and being 
childless adopted a boy M, defendant in this oase, by a registered deed whioh 
was ezeonted in 1887 and soon after settled the property, whioh had come 
to her from her father '.S/ on her adopted son by a deed of gift, dated 
4th If ay 1888, motation of whioh was daly effected in the conrse of the same 
jear in f^Tonr of Id as the adopted son of Z. In 1895 a private 
partition was made, the parties appearing before the revenue aathorities 
and requesting that the arrangement be recorded and entries made in 
aocordanoe thereof and allow iog defendant in connection with this land 
to be described as the adopted son of Z. Thi« arraagement was 
•anodoned on 11th June 1896 with fall consent of all persons concerned, 
and the parties then took possession of their respective shares in 
porsoanoe thereof. 

On the death of Z which nccnrred on 4th May 1899 the plaintiffs 
instituted the pr»sent claim for possession on the allegation that they 
he^g the nearest collaterals were the rightf ol heirs to the property 



OIYIL JUDGMENTS— Na 1. [ RiooftD 



held by him, and that defendant had no title thereto, the deed of gift 
and his alleged adoption being both fictitiona and invalid by law and 
custom. The defence inter alia pleaded estoppel by oondoot, aoqniesoenoe 
and limitation. 

Held, that the plaintiffs were precladed from making the present claim, 
the facts noted above shewing acqniesoence in the adoptioii aa4 alien- 
ations. 

Beld, also, that Article 118 of the Indian Limitation Act appliei to 
every case where the validity of an adoption is the sabstantial qaestion, 
whether it arises on plaint or on d0fendant*s pleas, and the fact that it 
was alleged to be in? alid or inherently invalid makes no difference in 
this matter. 

Kuhammad Bin y. 8adar Din (^) not followed. 

Found npon the evidence that in matters of alienation and snccession 
the parties were governed by Mnhammadan Law and not by custom 
and therefore a male proprietor was competent to make an absolute 
gift of his ancestral immovable property io favour of his daugh* 
ter. 

First appeal from the decree qf 8. Witberforce, Esquire, 
District Judge, JuUundur, dated 13th January 1902. 

Shah Din and Mnhammad BfaaO, for appellant. 
Beeohey and Badfi Das, for respondent. 
The judgment of the Oonrt was deUvered by 

]8th April 1906. Jounstonb, J.— This intricate and somewhat difBpi^t m^e 

has been argued before ns for 8 days, the debate on botti sides 
being marked by a high LbyoI of forensic ability. The record 
is volominoas ; a^^i iQ addition, the nnmber of important 
questions of law and custom arising on the appeal sendered 
it necessary for counsel to refer us to a very large numhev of 
rulings, for the adequate consideration of which we reaenred 
judgment. 

A pedigree-table is given in the judgment of the Court below, 
but it needs to be reproduced in a sapplemenjted form aa 

follows :— 



(0 67 F. B„ 1901, 



1W7. ] 



Cltn. JOOGHBNTS No. 1. 



•8 



1 



5 

1 

I 



I 5 

a I- 

l« 
a ■ 

I 

•8 

.a 
1 

I 
t 



"I" 



.§ 

I 




S 







^ 8 a 

"Km 






-r 



1 


Wazir-ad< 
din. 


5 


s 




•^ 


-6 


, 


9 p 


-I 


-•i- 


"2 


^ 


« 




>- 




1 


1 





'd 


^sg 





s 


pd 



OIYIL JtJDOMBNTS-tlo. 1. [ BiCdiLo 



The above table Rbews the relationship of the parties to 
each other and to the varioas persons who figare in the 
history of the case. The property in sait, as to |, came down 
from Jahangir Khan, plainti£fs' paternal grandnncle, and 
as to I, from Sarfaraz Khan, plain tiCFs' nnde. PlaintifiFs claim 
I as ancestral estate oomiDg down from Mnhammad Ali Sher, 
common ancestor of themselyes and Jahangir Khan, last lawf al 
{(according to them) male 'holder of that f, and the ^ as 
ancestral estate coming down from Alamgir Klian, common 
ancestor of themselves and Sarfaraz Khan, who m^as last male 
holder of that ^. Plaintiffs claim in accordance With ordiDarj 
agricaltoral castom. Immediately before defendant the 
property was in possession of Baghe Khan (a scion of Wahdat 
Ali's branch of the family) and of hie^ wife, Massammat Zainab, 
daaghter of Sarfaraz Khan aforesaid. Defendant claims to 
have been adopted by them both in 1887, and to have received 
the whole propei-ty from them by gift or tamlik'nama in 
1888. Plaintiffs deny the factum of adoption and of gift 
and also the validity of either. The defendant pleads that 
Massammat Zainab was fall owner and had fall powers of 
dealing with the property, becaase (a) her father Sarfaraz 
Khan in 1851 gifted the whole, then in his possession, to her 
in lien of her mother Maryam's dower, and so made her fall 
owner; (6) Sarfaraz Khan had got the property ^ by ordinary 
inheritance from his father and | from his deceased wife, 
Mary am, who had got it from her father Jahangir in 1832 
by gift in lien of hie wife's, i. e., Tier mother's dower, Massammat 
Maiyam thas becoming fall owner ; (c) the family do not 
follow castom, bat Mabammadan Law or a castom resembling 
It, and so, Sarfaraz Khan's acts oonld not be contested by his 
collaterals ; ((2) by special castom of the tribe she coald adopt 
to herself. Plaintiffs retort (1) that Massammat Zainab was 
not absolnte owner, bat had the castomary limited female's 
estate ; (2) that even if the two gifts of 1832 and 1851 
were really for dower, which is denied, it made no difference 
in the capacity in which the two donees took the property, vuf.f 
of females with powers limited in the ordinary way by 
custom ; (3) that adoption by a woman to herself is 
anknown to the tribe, and is anyhow invalid and even 
wholly void. 

Defendant also argnes that the plaintiffs have lost their 
rights,. if any, through acquiescence, and that the suit is for 



tAMY. 1907. ] OlVlL JUDOMlNT8-I^o. 1. 



seToral reasons time-barred, thns, — 

(i) The } aforesaid was ancestral in the hands of 
Jahangir, and the canse of action to sae for possession 
arose to plaintiffs on his death. Bat Massammat 
Marjam held on 12 years and more, and so became 
absolnte owner by adverse possession, for plaintiffs 
say the gift was a mere hiba and so was an alienation 
without " necessity." 

(n) Even if the reversioners permitted her as a daughter 
to hold on, then at latest on her death, whioh 
took place before 1849, their canse of action aoerned. 

(lit) In 1849 her hnsband Sarfaraz Khan actually 
litigated and got possession, and his possession 
anyhow was adverse from that time, for his 
possession was certainly not permissive then. 

(iv) Sarfaraz Khan died in 1853, and thereafter Zainab 
held the property under a gift from him. Plaintiffs* 
cause of action arose then, if not before. This 
refers both to the f and the ^. 

(v) Adoption of defendant by Mnssammat Zainab 
being proved, or at least having been setup in 
1887-88, the suit is barred under Article 118, 
Limitation Act, 1877, plaintiffs having had knowledge 
of the adoption or of the assertion of it much more 
than 6 years before suit* 

(Mnssammat Zainab herself, it should be noted, died 
only recently, i. 0., on May 4th 1899. It should also be 
pointed out that plaintiffs have no objection to Baghe Khan's 
adopting defendant to himself, but they object to his adoption 
of defendant beiog taken as giving defendant a right to 
Mnssammat Zainab's estate.) 

The above are, in brief, defendant's pleas aa regards 
limitation, and also very briefly, plaintiffs' reply is as 
follows >— 

As no adoption took place, and as in any case an adoption 
by a female would be absolutely null and void, Article 118 
does not apply at all. Plaintifib are not suing specifically to 
have the adoption declared invalid or void : they do and can 
only sue for possession, and so they are not touched by Article 
118 at alL As the gifts to the two ladies did not make them 



fall owners with absolnte powers of alienation, delaj in sning 
to oancel those gifts, or to recover possession notwithstand- 
ing the gifts, only operated at most to bar snits against them 
for possession and did not confer fall powers on them. 
Similarly, thoop^h perhaps Sarfaraz Khan may have acqaired 
by adverse possession and by • jadioial decision the right to 
continne in possession against plaintiffs, the property remained 
ancestral in his hands, and did not take on the character of 
self-acqaired property. When he gifted to his danghter, she 
ooald not acqaire a better estate than he had, smd bo she 
ooald not lawfally alienate except for " necessity," inasmnch 
as oastomary rales like that prevailing among Panjab 
agricaltarists govern the family. 

As regards acqaiesoence, plaintiffs contended that 
defendant did not plead this in the Gonrt below and shonld 
not be allowed to plead it now. A similar contention was 
pressed as regards (A) defendant's argument before as that 
' the proper heir to Massammat Zainab, apart from defendant^ 
was Baghe Khan, her husband, and not plaintiffs, (B) 
defendant's argument that at most plaintiffs could sue only 
fur their ancestral share and not for the whole, (G) defendant's 
argument that hoases stand on a different footing from lands. 
Leaving out of account for the moment the validity on the 
merits of these arguments of the defendant and of the plea of 
acqaiesoence, I think it will be convenient to deal now with 
this contention of plaintiffs that defendant should not be 
permitted to raise these points in this Court. In my 
opinion acquiescence was pleaded with sufficient clearness 
in paragraph 6 of the pleas and paragraph 7 (^), if not also in 
paragraphs 8, 9 and 10 ; and it mast be borne in mind that 
evidenoe of the assertions there made was given and especially 
of the partition of lb95, in which plaintiffs took part without 
raising any objection as to defendant's rights. 

As regards (A) defendant refers ua to paiagraphs 7 (6) (c) (d) 
and (g) and the first clause of paragraph 7 (/) ; but I am unable 
to see that defendant plainly pleaded that Baghe Khan was a 
better heir to his wife than the plaintiffs. I do not consider 
defendant shonld be allowed to point now to the Bivaj-i-am^ 
though it is on the record, and to oUier pieces of evidenoe as 
showing that' Baghe Elhan was the better heir, and to say 
now that he did raise the point in the Court below simply 
because an ingenious counsel has found in that evidenoe some 
Bopport for the theory. I would hold that the matter was 
not pliNided and ' was never in issue, and so should be 



Jmt. 1907. ] CiyiL JUDGMKNTS-No. 1. 



ezolnded. I do not think the two aathoritieR here quoted 
by defendant's ooansel, viz,^ Becretary of 8Me for India v. 
Suhhdeo (^) (at page 344) and Mussammat Anundmoyee 
Ohowdhoorayan Y. Sh$eh Ohunder Boy and others (^) (at pages 
300, 301), help him. much. In the former case it was mied that 
where defendant denies a whole daim, plaintiff mast prove it 
in toto^ and that defendant can in second appeal contend for the 
first time that the plaint does not disclose a cause of action. The 
difference between that case and this is obyioas : there the 
contention put forward in second appeal was one to be decided 
solely npon the wording of the plaint, while here it is manifestly 
anfair to let defendant in the Appellate Gonrt spring apon 
the plaintiff a contention, the refutation of which by 
plaintiffs could only be effected by their adducing evidence 
of custom ad hoc The other ruling is still less useful to 
defendant. In it their Lordships of the Privy Council held 
that, where the defence put in the first Court was thai 
defendant's adoption was valid, it did not fallow that 
defendant admitted the rival alleged adoption of plaintiff, 
and that in such a case plaintiff, having sued to oust 
defendant on the strength of the former's adoption, had to 
prove that adoption in order to succeed, defendant being 
thus entitled to argue in the Appellate Court that plainitff 
had not proved his adoption. Here the attempt of defendant 
is at this stage (io bring in a new plea and to set up a bar not 
specifically in issue in the first Court, which plaintiffs wero 
not obliged, primd fade and ex necessitate rei, to surmount or 
remove in view of the pleadings in that Court. 

Turning to (B) Mr. Shafi quoted Ohotodry Fudum Singh v. 
Ko*-r Ovdey Singh {^) (at foot of page 355). There the Privy 
Oounoil, finding that plaintiff had been found as a matter of fact 
to be entitled to only a share, whereas the High Court had given 
a decree for the whole, ruled that the decree could not properly 
be tor the whole, though the point had not been specifically 
taken by the defendant in any Court. I am disposed to agree 
with Mr. Shafi here and to rely for this opinion both upon 
the ruling quoted and also Secretary of State v. Suhhdeo ( * ), 
mentioned above. 

As to (C), Mr. Shafi can point only to paragraph 9 of the 
pleas, last few words. No issue was drawn on the point, and in 
my opinion plaintiffs probably never understood that they 
had to meet a plea of the sort now put in. The plea that 

(»)I.L.«.,XI/Jl/.,84l. (!)»Moo., I.ii.,«7. ' 

^»)iaMoo.,/.-l,ito, 



g OIVIL JUDGMBNTS-No. 1. [ BioaRii 

aooestral hoases are on a diCFerent footing as regards sneoession 
and alienatioQ from ancestral land is an nnasnal plea, and 
I wonld hold that it cannot be ntilised in an Appellate Court 
unless it was clearly pleaded in the Ooarfc below. I wish, 
therefore, to find against defendant as to this. 

It is convenient here to take ap the qaestion of acquiescence. 
Mr. Shah Din refers ns to the evidence regarding partition, 
and also points to plaintifEs' long delay in suing and almost 
complete silence all through. At pages 404^-415 of the paper 
book we find translations of mutation entries Nos. 283, 313, 
315, 320, 322. In No. 283 the mutation is of old jamabandi 
holding No. 8, and the alteration in proprietors' columns 
of defondant |, dan>(liter of Shahbaz Khan* |, and 
plaintiffs |, into defendant and the daughter of Shahbas 
Khan in equal shares, is paid to have been dcme* 
with full consent of all persons concerned, including Baghe 
Khao, on 11th June 1896, on the basis of a private partition. 
In the enfry defendant is consistently called the adopted 
son of Mussammat Zainab, and no objection' seems to have 
been taken to this description of him. The entry was 
written up by the patwari at the instance of 'plaintifE No. 2 and 
defendant and of Ghulam Ghaus, son of the aforesaid daughter 
of Shahbaz Khan (who was dead), and it was also attested 
by the lamhardar. The girdatoar apparently did not interview 
the parties, but the Extra Naih Tahsildar^ after questioning 
plaintiff No. 1 and Ghulam Ghaus, and finding them consenting, 
ifisaed interrogatories and found that defendant was willing 
if Baghe Khan was, and that Jamal-ud-din, natural father 
of defendant and brother of Baghe Khan, spoke to Baghe 
Khan's consent. This shows that both the plaintiffs not only 
agreed to the partition, though according to their present 
story they did not recognise the position of defendant as 
heir or adopted son of, or donee under, Mussammat Zainab, 
but also both passed over without demur the description of 
defendant as adopted son of that lady. 

Mutation entry No. 313 was of old jamabandi holding 
No. 182, and was also based on a private partition. Here the 
entry was made at the instance of several persons among 
whom was plaintiff No. 1 and again we find defendant, without 
objection, described as adopted son of Mussammat Zainab, 
and it is written that the co-sharers had taken possession 
oC their separate plots of iaud. Pliimiff No. 1 appeared before 

* See pedigree-table. 



Jajtt. 1907. OIVIL JUDGMBNTS-No. I 9 



the Nmib Tahnldar later and verified all thip, and the latter 
sanotionad the mutation. 

Mutation entry No. 315 and also Nos. 320 and 322 tell 
the same tale, plaintiff No. 1 in each speaking for himself and 
plaintiff No. 2. 

By way of further snpp9rt to the oontention Mr. Shah 
Din refers ns to Amir v. Zebo (*), Btdt v. Hamam Singh («), 
Nura V. Tora (»), (at page 170, penultimate paragraph, and page 
172, last paragraph), and Satha Singh v. Sujan Singh f ♦), (at 
page 174, middle of first paragraph). In Amir v. Zebo (0> i^ 
was held suflBcient proof of aoquiescenoe that defendant proved 
long silenoe, plus purchase hy one oollateral from alienor to the 
ezolusion of the other collaterals plus cultivation hy plaintiff of 
disputed lands under alienees, plus eichange of disputed lands 
*with alienees. In Boda v. Hamam Singh ('), following circum- 
stances were held to shew acquiescence :-« 

No intimation of objection in 24 years ; 

Silence at partition 24 years before suit ; 

Taking disputed land from alienee as tenant. 

In Nura v. Tora (*), the Court held not so much that 
positive estoppel was made out as that plaintiff's case 
was by the following circumstances so much weakened that he 
must lose the day, wt.— 

Long silence, jp2u« suit by plaintiff himself for partition with 
alienee. 

Finally, in Satha Singh v. Sujan 6ingh (*), this Court laid 
it down that it was impossible to have better proof of the 
existence of a custom than the fact that persons interested acted 
as if they believed an alienation valid and never questioned 
it until they imagined the Chief Court had found such aliena- 
tions invalid. 

In reply Mr. Beechey urges that his oUents objected 
and litigated in 1859 ; that ihey objected at mutation in 
1888 regarding the gift by Baghe Khan and Mussammat 
Zainab to defendant, that the partition could not be resisted 
so long as Mussammat Zainab was alive ; and that it was 
Baghe Khan who applied for partition and not plaintiffs. 
The last contention, as we have seen, is incorrect, one or 

(») 42 P. B., 1902, (•) 46 P. a, 1900. 

(•) 102 P. B^ 1902. (•) 84 P. B^ 1899. 



10 CITIL JODGHIENTS— No. 1, [ 

both plaintiffs hnying asked for mntation in eAch case and 
the partition having been a private one. Taking the otiier 
points raised bj Mr. Beeohey one by on^, I obe^rvi^ that 
in 1859 plaintiffs' father and othens BW9d Bagl^e Khmpi, 
alias Ghalam Mahi-!id-din, for possession of If^nd giK^ \^, 
\i asaammat Zainab to Baghe Khan, the land having been 
previously grfted to Mnsaammat Zainab by her father Sfirfaraip. 
They did not sne for a declaration against Baghe Khan's 
rigbt to it, but for possession for themselves. The re8i;ilt 
was (pages 50, 51 paper-book), that while Baghe, Khan's 
name was removed, the gift to Mnssammat Zainab was 
upheld and her name was snbstitnted. Thns, no donbt 
plaintiffs' father litigated bnt, having lost the day in 
what was probably only a revenue proceeding,* he took 
no further step<«. It mast, however, be conceded that in 
his nppeal in that case plaintiffs' father admitted that Mussam- 
mat Zainab must continue to hold bnt objected to the 
transfer to Baghe Khan, and, so far as this wmm eonoemed, 
they were successful; that is, he auooessfuUy 9om)>a;,tt^ the 
theory that Mnssammat Zainab could do what she liked 
witb the land. As to objection at mutation in 1888, Exhibit 
D. 43, page 320, paper book, the objection was made t« 
patwart and not renewed before Tahsildar. It was over-mled. 
Lastly, in the rulings quoted on the other side, the fact 
that the donor was still alive when plaintiff-objector made 
partition, etc., with alienee, or took djisputed iM^d of his 
under cultivation from him, is nowhere permitted to.defir^t 
from the importance of the act as shewing acquiescence. 

It would appear, then, that the case for acquiescence, while 
fairly strong, is not so good as Amir v. Zeho or Roda v. Hamam 
Singh ; but nevertheless I cannot help thinking that, when 
plaintiffs dropped their objection to mutation in 1888 after 
making a formal protest to the pattjoari, and then in 1895 
made no demar to a friendly partition with defendant and 
even themselves asked t6at it should be recorded, at the same 
time contentedly allowing defendant, in connection with this 
same gifted land, to be described as adopted son of Mnssamiaat 
Zjiiuab, they finally abaudoued theii' ealier designs 4m the 
property. I am rather inclined aUo to think that they are 
now estopped from denying the right of defeadant, for^ if in 



* 1 do not proas this beoAUBe in those early day a Depntj Oommistiooeri 
had f till civil jarifdiotion and diatinotion beiwaon oiyij 4uid ra/enae rait was 
not elear. 



Javy. imr, 1 OITIL JUDGMBHTd-Ko. 1. 11 



1895 thej had refased the reqaest of defeadaot to partitiou 
or had eyen intimated that in partitioning they still declined 
to reoognise defendant's title and to admit his statas 
as adopted son, defendant would probably have taken 
steps to establish his position while Mnssammat Zainab was 
still alive and able to help him to explain the past history 
of the affair. By keeping silenoe then and even oo-operatiog 
with defendant in a proceeding, in which he coold have 
pari and lot only as adopted son of Mnssammat Zainab and 
as donee nnder her, plaintiffs have, in my opiuion, eansed 
defendant to believe that they recognised his statns and claims, 
and have also caused him to act on that belief. 

This being my view, I am not, strictly speaking, called 
apon to go into the other questions in the case, such as 
limitation nnder Article 118, limitation otherwise, Muhammad<vn 
Law ver$us agricultural custom ; but even if we hold that 
estoppel is not made out, in my opinion the conduct of the 
plaintiffs in 1895-96, added to the evidence on the record 
on the merits of the case, easily proves that plaintiffs have 
no title better than that of defendant 

I am also inoliced to think that the suit is barred by 
time. Taking Article 118 first I am of opinion that the 
factum of the adoption by • Mnssammat Zainab is proved, 
notwitlistanding various ingenious suggestions of Mr. Beechey. 
ThaVshe was hoodwinked in any way or that the deed of 
1687 dir that of 1888 was really written without her knowledge 
ot ddtiMiH is the merest conjecture. Of couise, she is a parda 
mklAtfi'l^y', but the usaal precautions wei-e taken and 1 would 
h6td that she knew perfectly well ail that }}assed and was a 
willih^ paHy. It is true that in the deed of 6th May 
1887, Eihibrt D. 23, page 310, paper-book, only Baghe Khan's 
siguiitate appears and not Muesammat Zainab's, and that 
in the' opening sentence he says be has adopted defendant ; 
bttt' later on he writes ** all that was necessary for the 
" addition was done by me and my wife". Then the deed 
of gift', Exhibit D. 34^ page 314, paper-book, is by both 
hdi(band and wife. In it Mnssammat Zainab expressly claims 
B61e ownership of the property gifted by her and (by 
imfylication} claims the right to give it away to whomsoever 
she pleases. Baghe Khan gifts his own land which is described. 
He says he adopted defendant in infancy, and she says he adopt- 
ed defendant with her " consent ". She also says she has 
brought him up like a son and he has become in every way the 



12 GITIL JDDaMBKTS— No. 1. ( &»»» 

owner and oooapier of ** our " estate like oarselvee. In my opinion 
it is reasonable to infer that she also had adopted the young man, 
for olearly by her *' consent " aforesaid she was intending to make 
defendant heir to herself also, and this would suffice, inasmuch 
as adoption amoog these Muhammadans could require no 
religious or other ceremonies. And in the record are many 
pieces of evidence pointing the same way, e. g,, page 319, 
D. 42, the lady's own statement, the constant description of 
defendant as adopted son of Mussammat Zainab in the mutations 
of 1 895-96, and so forth, which I need not discuss at length ; 
not to speak of the oral evidence of respectable witnesses Nos. 
28, 29, 34, 36, 37 and 38. 

The factum of adoption being established, * it is also clear 
that it became known to plaintiffs at latest in 1888, for they 
objected to the mutation in that year. Thus, if Article 
118 applies at all, plaintifEs only had till 1894 to sue. That 
Article provides a period of limitation for a suit ^ to obtain 
" a declaration that an alleged adoption is invalid or never in 
fact took place ". We are not concerned here with the latter 
olause. The question is whether the words '' a declaration 
'* that adoption is invalid " come within the four corners of 
the relief asked for in the present case. 

The learned District Judge took the view that the adoption 
mentioned in Article 118 is an adoption done by a person 
who had no inherent right to adopt, that the adoption of 
defendant by Mussammat Zainab as heir to ancestral property 
in her hands is *' inherently invalid " ; and so Article 118 
has no application. .He based his reading of Article 118 upon 
rulings BKagat Earn v. TvXsi Ram {}) and Muhammad Din v. 
Sadar Din (^), refusing to follow Qujar Singh v. Puran (*), 
though based on a Privy Council decision, on the ground 
that the Privy Council really did not deal with the 
distinction between invalid adoptions and inherently invalid 
adoptions ; and he held this adoption '* inherently invalid " 
on the evidence in this case regarding practice in the tribe 
and upon a series of Punjab rulings dealing with cases governed 
by Punjab agricultural custom. At present, then, I will 
confine myself to the questions whether the District Judge's 
reading of Article 118 is sound, and whether, if it is, the 
adoption of defendant in this case was inherently invalid. 



(') 144 P. B., 1892. (•) ,57 p. ^ jgoi. 

^ (»> 71 P. B., 1901. 



JiOT. 1W7. ] OITIL JUDOMBNT8-N0. 1. 18 



by which I nndentand was nn absolate nullity withoat any 
show of right. 

Taking first Oi^ar Singh v. Puran 0), which was deiaded 

by a Division Bench, whereas Muhammad Din y. Sadar Din (*), 

was the roling of a single Jndge, and Hem Eaj ▼. Sahiba ('), 

which followed Gujar tiingh v. Puran ^ we see that on the 

anthority of the Priry Council it was laid jdown that, whether 

an adoption really took place or not, if plaintiff sues defendant 

for possession of property? "and defendant alleges an adoption 

and shews that plaintiff, more than six years before suit, was 

aware that defendant claimed to be adopted, the suit is barred 

under Article 118. Muhammad Din v. Sadar Din (■), which 

does not refer to the Privy Council authority at all, drew the 

distinction aforesaid between alleged adoptions and alleged 

adoptions inherently invalid. In Qan$$ha Singh v. Sathu (♦), 

where the factum of adoption was admitted, it was held 

that whenever in any suit the validity or invalidity 

of an adoption comes into question, that point 

can only be raised within six years of plaintiffs knowledge. 

In Dhm'u v. Bidhu (•), the matter was incidentally discussed 

on the same lines. In Bam Narmn v. Mahatj Narain (•), 

it was laid down that Article 119 applies to every suit 

filed for whatever purpose in which plaintifE must, in order 

to succeed, prove the vaUdity of an adoption, and that time 

begins to run from the date on which the rights of an 

adopted son are interfered wiUi. (Thus, if in the present 

case plaintiffa had in 1888 succeeded in ousting defendant, 

defendant would only have had till 1894 to sue for posses- 

sion). Sardar Wasatoa Singh v. Sardar Arur Singh ('), quoted 

by Mr. Shah Din, need not be noticed. Besides these 

Punjab cases he has quoted Shrim^OM Murar v. Hanmani 

Ohavdo Deshapande (•), Malkarjun v. Narh^ (•), Barot Naran 

V. Barot Jesang {^^h Parvathi Ammcd v. Samhaiha Gurukai (^ ')• 

In Shrinivas Murar v. Hanmant (•), it was held that Article 

118 applied to a suit for decoration of invalidity of defendant's 

adoption, for possession and for mesne profits, and the reasons 

given by Candy and Tyabji, JJ., are instructive. The former 

learned Judge said tiiat, though primarily Article 141 applies, 

when defendant pleads that he was holding to plaintiffs' 

(.) 71 P. K i^l. " ^}^\^ 

• uA iSS:,-^. B. ^ ^ (-) i J. «. iUCF ton... 26. 



\^ OiriL JUMMOHTS-llo. 1. ( Bwatmm 

knowledge, as validly adofpted by the widow, Article IIB 
applies; and the latter expressed the opinion that Article 
118 applies to every case where the validity of the adoption 
is the sabstantial question, whether it arises on plaint or 
on defendant's pleas. Mcdkar/an v. Narhari (i) at page 350 
quotes Jagadamba Ohaodhrani v. Dakhina Mohun Boy 
Ohaodhri ('), in which Article i 18 was applied to a case in which 
plaintifE sued to recover an estate and Raid nothing about 
defendant's adoption. In Parvathi Ammal v. Bamin<Uha 
Ourukal (*), it was snid that, if the adoption was set up hj 
defendant to knowledfi^e of plaintiff more than six years before 
suit, the claim would be barred. 

Mr. Beechey, on the other hand, quoted a lai^ number 
of Punjab, Calcutta, Allahabad and Madras rulings, but 
as he claimed that Karam Dad v. iiathu (^) nullified all the 
previous rulings of thifl Court relied on by defendant, I will 
first examine that case. In my opinion it is in terms hardly 
in line with the facts of the present case. There the 
assertion of the plaintiff, which he successfully established , 
was that the widow, in order to have any power whatever 
to adopt an heir to succeed to her late JinsbandU eetate^ 
should ha^e had, and as a matter of fact had not, authority 
from him to adopt. No doubt it is stated that Article 118 
applies only when validity of an adoption is in question and 
not when the adopter has no inherent power to adopt, a 
dictum also to be found in Bhagat Earn v. Tulsi Bam (*), 
and the aforesaid Muhimmad Din v. Sadar Din (*), but then 
here there is no question of Mussammat Zainab's having, 
or not having, aothcrity from her husband to adopt. The 
dictum in Karam Dad v. Nathu (*) must be taken as applying 
to the facts of that case or at most to analogous facts, and 
it is impossible to say that the learned Bench would have 
expressed itself in the same ^ay had it had in its mind a case 
like the present. To my mind it is a qaestion whether that 
dictum taken in a broad and general way is not in conflict 
with the views of the Pi ivy Council ; and I consider that, though 
we would be bound to follow it in an exactly similar case, 
in a case not similar we can and should pass it by and 
conform to the dicta of the Privy Council and to those 
of this Court expressed in the series of rulings relied 

(») f. L. R., ZKV Bom., 387, P.O. (*) 86 P. /?.. ]»06, P B 
(,•) J.L. B^ Xin C'flic.,308, P. C. (•) 144P.fi., 1892; " 
{•) 1. ii. ^., J» ^od', 40. (•) 67 P. ii.,-i90l. 



JliiT. 19«7. ] 



orriL jfT PU 'iiH W T a w«. i. 



15 



upon by Mr. Shab Din. In short, wo shonld hold that in 
KaramDadv. Nathu 0), this Court only intended to lay it 
down that where a woman, in order to validly adopt defendant, 
thauld have had aiUhi>rity from her late huihand nn^ yet had no 
midk auihori§yt there was no '' alleged adoption " and so Article 
118 wottid not apply. For myself, thongfh I express the 
opinioa with all doe respeot, I have grave donbts regarding 
the BoaodneM of the distinction between an "invalid " and 
^ an inherently invalid '* adoption : if an adoption saeh as that 
dealt with in Karam Dad's oaae is no adoption at all within 
the meaniag of Article 118, the idea mnst be that it is 
not aa adoption becaase it does not ooofer upon the 
adoptee the eiatas of a son, bnt then equally an invalid 
adoption of any sort fails to do that, and this line of reasoning 
ends 4n the reducHo ad ohaurdum that the first part of Article 
118 becomes a dead letter. In theise cironmstances I ag^in 
say that Karam Dad's oaae shonld be taken as an aathoritj 
only for oases strictly similar to itself. 

Biftt OYen if we m^st adopt the distinction drawn in 
Karam Di^'a case and i^ Bhagat Ram's case and Mnhammad 
Dia'e oaae, i^ connection with which Mr. Beechey has ceferred 
OS to the rnlings quoted iA the margin, which rulings I do 
not |Mrope99 to disonss except in so far as to state that in 
n^ o^ion they are either not in point or are opposed to 
the Vrivf GouMil's views expressed in Jagadarnba Ohaodhrani 
y.DahkmaMohmi^h and Malltafjun v. Narhon (^), and to 
thie Conrt's views given in Qt^'ar Singh v. Puran (*), Qamiha 
ainghy. Nathu (^),And:Dheru v. Sidhu («), I am unable to 
see how it ean be said, that the adoption in the preaent 
oaae ie " inhecently invalid, ". Adoption among Muhaipmadans 
is, of eonrse, not a i^ligious ao^ as it is among persons 
0«|^aot to Hindu Law. It amounts qimply to nomination of 
an heir ; and what we have to see is not whether according 
to any tbecwy of the powers of females under custom Mus- 
mmmat Zainab. could, or could not^' validly adopt a son, bnt 
whether aa a matter of practice women in this tribe have in 
the past nooMnit^d hoiw to l*nied property, whioh would, 
but for that nomination, have roverted on their death to 



66 P. B.. 1897. 
96 P. B., 1898. 
78P.fi., 1894. 
U P. X. B., 1902. 
I. £. R., XXII Oalc, 

609. 
/. L. B., XXV Cole., 

854, 

/. L. B., xxvn 

Oale., 243. 

/. L. B., XXIV AU„ 
195 

LL.'b,, XXVI All., 
40 (F. B.). 

/. L. B., XXVI 
Bom,, 291 (dis- 
eenting judgment 
of BhaBhyam 
Aiyengar, J.). 



(«) 86 P. n^ itoB. f:b. 

(•) /. L. 1?^ IXl! Qfik., IK)8, P. a 
(•) I. L. R.XI7Bom.,«87.P. 0. 



(*) 71 P. B., 1901. 
^•) 20 P. H^ 1902. 
(•) 46 P. B^ 1906. 



16 C'l^I' jni>0lfIVT8— No. 1. [ Baoomi 



the fatber*8 ooUaterak, and whether also, women in the 
position of Mnflsammat Zainah have not in the past alien- 
ated property reoeired from fathers and husbands at will 
without consent of collaterals. 

Bat before disoassing this directly I won Id like to say 
that in my opinion the evidence on the record, which is 
too Yolaminons for detailed discossion, shews to my satisfaction 
that these Sheikh Ansaris are not agricnltnrists in the proper 
sense of the term, and that there is no presumption that 
they have adopted agri cult oral custom ; that evidently females 
and especially dau^^hters are among them a favoured class ; 
and that, where it is not specifically proved by the plaintiffs 
that the tribe, in matters connected with the status of females, 
have actually adopted agricultural custom or some similar 
restxictive custom, Muhammadan Law must be presumed to 
apply. In connection with this T would only refer to Section 
5, Punjab Laws Act, and the Full Bench ruling in Daya Bam 
V. Sohel Singh (i). 

The learned counsel for the appellent have prepared 
certain lists of adoptions and alienations by and succession 
to females and males in these Jullundur Bastit and for 
convenience sake I will refer to them. They are compiled 
from materials on the record. List 3 B. is of adoptions by 
females. Four instances are given of which the first is the 
one now in dispute. The second instance is a case of a 
tamUk-nama^ see page 541, paper-book, and of a judicial 
decision (page 53) under which property gifted by her father 
to the lady who executed that deed remained with the donee 
or legatee or nominated heir. The deed does not speak of '* adop- 
tion "but if clearly makes the beneficiary an appointed heir; 
and see page 19, top, page 475, line 27 (adoptee's own statement) 
and note to khatas 1, 2 and 3, pedigree table of Basti 
Danishmandaa Entry 3 is a Sayad case of Basti Sheikh 
Darwesh. The alleged adoptee was an Arain. It is doubtfal 
whether this case can be considered to be directly in point, 
but it certainly shews an extensive power in females to deal 
with property inherited from fathers. In my opinion too a 
Sayad case from one of these Bastis is as such certainly in 
point. Entry 4 is a curious case of the adoption of two boys 
or rather the exec ition of a tamkk'-nama in their favour. I 
think this must really have occurred, though no mention of it 

(OUOP.A^ 1906, ^.B. 



rlfor. ] onriL JDD0inDM.T8-.lf a 1. 17 



iki tke pedigfee4aUe, for see ihe allnsioo at pages 
40fi« 13d, paper.book. 

JThsflo cases are thus few, as one would natatuUj 
MpMitt; bat in my opinioa the oases of gifts hy females, which 
are namerons, List 1 B,, are also in point as shewing that 
females lure not in this tribe tied down as they are in ordinary 
Paigab tribes. There are 37 instances, of which Mr. Shafi 
admits that five have been shown of no valae. It is impossible 
here to disciiss these instances at length. After considering 
the criticisms of Lala Badri Das, junior coonsel for plainiifFs, 
IJiave jmnved at the oonolasion that the list supports very 
fiui^thceontention of defendant as to the powers of females 
io tiie trib^y .and I ^approve of the argument of Mr. Shafi 
that, yAbu we £fad in such a list some gifts that can be 
supported both binder Muhammadan Law and custom 
and some that can only be supported under Muham- 
madan Law, it must be taken that all were made under 
Mnhammadan Law and not some under that law and the rest 
under custom. 

There ace also lists of sales, etc., by females and 
snooesaion. to females, and of adoptions and gifts and sales, etc., 
||y < maleSy^And of' succession of females to males. I do not 
propose 4o ' discuss these further than to say that, after 
considering Mr. Badri Das's strictures on them, I still find 
fr oonsidecable residum .of cases which cannot be accounted 
for under agricultural custom. 

Finally, then, my view is that the " adoption " of 
defendant by Mussammat Zainab was not '* inherently 
invalid " and so Article 118 fully applies and the suit is barred. 
I would also express the opinion that probably the suit is 
barred by time in other ways also, see (i), (iii) and (iv) 
at beginning of this judgment. I will not discuss this 
further than to say that in my opinion the evidence on the 
whole goes to shew that gifts in lieu of dower, and even 
ordinary gifts, by males to females in this tribe probably 
makes the female donees absolute owners as in Muhammadan 
Law ; and further to say that, even if this is not quite 8o, 
the indention of the gift by Jahangir to Mussammat Maryam 
and by Sarfaraz to Mussammat Zainab was to make the 
ladies full owners as the donors certainly were in the absence 
tff vppHoability of agricultural custom and so these ladies held 
aflverselyto the collaterals. 

I would, then, if my learned colleague agrees, accept 
'^e appeal airid dismifls the suit with costs throughout. 



]8 OIYIL JUDOMBNTS-No. S. [ Bkou 



I8th April 1906. ' Rattioan, J.-»My learned brother baa dealt so exhaastiTely 
witb this complicated case that I oeed say no more than 
that I entirely agree witb him not only upon the question 
of "aoqniescenoe " which I hold to be fully established and to 
be per se A \mt to plaintiffs' claim, but also upon the other 
points in regard to which he has expressed his opinion. As 
we are agreed that plaintiffs must fail on the ground that 
they have by their acts accepted defendant as the adopted son 
of Mussammat Zaicab and have estopped themselves by 
those acts from now cod testing his »taiu$ as such adopted 
son, any opinions which we express upon the other points 
argued before us must necessarily be obiter. But these 
questions are of so important and interesting a charaoter and 
the arguments before us upon them have been so able and 
thorough on both sides that we are perhaps justified in giving 
our opinions upon them, though I am ready to admit that in 
general snob a course is open to some objection. I find 
rays^lf so completely at one with the view expressed by my 
learned colleague that it would be a mere waste of time for 
me to refer in detail to thene other questions, but I must tak» 
this opportunity of remarking that I too am at a loss to 
comprehend the true distinction between an adoption that is 
** invalid " and one that is '* inherently invalid " It seems 
to me, speaking with every respect, that one adoption is either 
valid or invalid, and if it is invalid, it is, I apprehend 
inherently invalid. 

The appeal was argued before us in a manner worthy 
of the learned counsel who appeared for the parties, and we 
are greatly indebted to tbom for the assistance which we have 
received at their hands. 

We accept the appeal and dismiss plaintifib' suit with 
costs throughout. 

No. 2. 

Before Mr. Justice Lai Ghand. 

SJAGAN NATH AND OTHERS,— (Plaintiffs),— PETITIONEBS, 
Versus 
BUDHWA AND OTHBIRS,- (Defendants),— RESPONDENTS. 
Civil Revision No. 1855 of 1904. 
Mortgage — Mortgagee obtaining money decree against his mortgagor not 
allowed to purchase equity of redemption in the property mortgaged to him — 
J^cct of prohibited purchase. 

BeCd that a mortgagee under a conditional aale oannot, by porehaiing 
the equity of redemption in exooation of a money deore« obtainsd by him 



Jkwr. 1907. 1 OITIL JXJDOMEKTB -N«. 2. ' * \9 

again^ hj^ mort^iigor, aoqnira a complete IHIe as of a purohaser in th»^ 
•property mortgaged to him io as to d.^pnVe the mirhgij»or of hts' legal 
inriTilegefl regarding the equity of redemption. 

Saoh parohases being absolately nnlawfol do not confer an 
irredeemable title on a mor&gagee without his having reooarae to the 
piroper prooedare preaoribed for t»iat purpose and without giving the 
mortgagor an opportanity to redeem. 

Petition fnr revifion of the order of 8. Clifford^ Bsguin, 
Divisional Jadge, Delhi Division^ dated 20<& August 1901. 

Sbadi Lai, for petitionerfl. 

The judgment of the learned Judge was as follows : — 

Lal Ohand, J.— Two hoases, inclading the house now in suit, Qth June 1906. 
were mortgaged to plaintiffs by defendants 1 and 2 on I7th 
August 1895 for Rs. 500 hy a deed of oonditional mortgage. 
The plaintiffs did not take foreclosure prooeedings after the 
expirj of the stipulated period but haying obtained a money 
decree on another mortgage deed put up the equity of 
redemption of the house in suit for auction sale and purchased 
it for Rs. 50. Having obtained the sale certificate and formal 
possession under it the plaintiffs have now sued for possession 
by ejecting defendants. The defendants raised several objections, 
one of the objections being that plaintiffs could not sell the eqoity 
of redemption and should have sued on the original mortgage 
deed. No issues of law were fixed by the First Court but only 
an issue of fact whether defendants had not re ceived consideration 
money under the mortgage deed, dated 1 7th August 1895. The 
defendants having failed to appear at the last hearing fixed for 
the case, proceedings were ordered ex parte and plaintiffs' suit 
for possession was decreed by the First Court. The lower 
Appellate Court has reversed the decree and dismissed 
plaintiffs' suit on the ground that the title of plaintiffs 
is bad as they had the equity of redemption sold which they 
had no right to do. This view is stated to be supported by 
Calcutta and Bombay rulings, which are not quoted, and by 
Section 99 of the Transfer of Property Act 

It is contended in revision under Section 70 (a), Punjab 
Courts Act, that the lower Appellate Court has committed 
material irregularity in deciding the appeal on a point not 
urged in the memorandum of appeal or in the Court of 
first ii)stance and which the petitioner bad no opportunity to 
meet It is further contended that the sale having been 
eompbled more than four years before suit, the objection that the 



20 • CI^L JUTCMHIITB— N6; S. 



eqaity of redemption coald not be sold could not b^ entertaiiLBd 
and that the law as to the sale of equity of redemptton ba* 
moreover been misanderstood by the lower Appellate Obnrt. Ikr 
argument it was further urged that. Section. 244». Civil 
Procedure Code, is a bar to the objection raised by defsndftsK 
aod following cases were quoted and relied upon : 

Parmanand v. Daidat Bam (<), H^alert Pathumtna v. 
Thandora Mannnid (^, and Durga Ohormn M^ndal^ r: KaU 
Prasanna SArhar (')j 

As regards the first contention it aeama, to me. thai the 
objection was raised in the, first Court though not in very 
clear terms. It was pleaded by the defendants in their 
written statement that the plaintiff's real remesLy^ ll^y; on his 
mortgage deed and that he could not sell the- eqaity of 
redemption under Section 295, Civil Procedure Coda It iathoB 
clear that the defendants pleaded that the plaintiffs could not 
obtain possession of the house in suit which was alleged to. be 
worth Bs. 4,000 except by enforcing the mortgage deedk 
The objection therefore that the plaintiffs comUL mi 
recover possession by virtue of purchase of equity of' redemption 
independently of the mortgage deed was raised in eSeet, and 
it was not challenged by the plaintiffs. The cotttention thai 
plaintiffs have had no opportunity to meet the poi«t oml whidt 
the judgment of the lower Appellate Court has prooeaded. is 
not maintainable. The plaintiffs were represented in the lowao 
Appellate Court by a pleader and no affidavit is filed; thai 
arguments were not heard by the lower Appellate Count. on^ this 
point or that the matter was not discussed ati the heamngi I 
therefore disallow the first contention. As regards' tl^e 
remaining contentions I am not prepared to say that tha* lower 
Appellate Court has misapprehended the law on the subjeel^ fivieii 
apart from Section 99, Transfer of Property. Act, whidi^ iiis 
contended, is not applicable to this province, the view takttii by 
the lower Appellate Court is supported by Martand. Balknahnm 
Bhaty.Dhondo Bamodar Kulkarm (*), which nsfers. to earlier 
oases decided by the Calcutta High Court prior to the paflfiing^oi 
the Transfer of Property Act. The mischief condemned by 
these authorities is exactly what has happened in this case. 
The mortgage in plaintiffs' fayour was a conditional mortgage 
which plaintiffs could not foreclose without taking certain steps 
under the Regulation and without giving a year of ^craee to the 
defendants within which to redeem. Instead of taking proper 

(•) 10 Had. L. /., 110. (*> I. L. B., XXU Bms etft. 



19^. : OITiL HTommnB^Nab f; 21 



and legM ■tops the plaintiffs baffle the stringent provisions of 
law bj pnrohasing the eqnitj of redemption in ezeoation of a 
money deoree for a nominal sam of Rs. 50, while the honse 
is stated bj the defendants to be worth Rs. 4f;uuO. The 
plaintifis tbas seek to secore an unfair advantage in defiance of 
Taw when their trae remedy lay in enforcing the mortgage deed. 
Bven, hoffaver, if the law on the subject had been mis- 
apprehended by the lower Appellate Court as alleged it 
could not fdrm a valid ground for revision under Section 70 fa), 
tbe matter having been decided by the lower Appellate Oourt 
after dne consideration. Further there is nothing to show that 
i% was contended in the lower Appellate Oourt that the objection 
to plaintiffs' title was not admissible owing to lapse of time or 
that Section 244, Oivil Procedure Code, precluded such objection 
being raised'in this suit. These are obviously new contentions 
raised in revision on argument by the learned counsel for the 
petitioner and I cannot under the circumstances hold that the 
lower AppelTattt Court has acted with material irregularity in 
not alluding to these contentions and deciding them. But, 
moreover, I am not prepared to concede that the objection as to 
lapsa of time is at all fatal. Defendants have continued in 
poBseaBiOB of the property sued' for since the sale as prior to it 
and'tlie limitation for setting aside an auctien sale cannot appl^ 
ito har the defence that plaintiffs have no valid title to sue for 
possesmon and' that the auction sale which constitutes plaintiffs' 
title gives them no title in equity. * As regards Section 244, Civil 
Ptt>oedVire C6d^, the objection taken by the defendants is not an 
objection relating to execution of decree or discharge or 
eatttfaotioB therBof. It is not an objection that the money 
dem*ee obtained by plidntiff^ on 24th Jannary 1900 oould not be 
executed: What is- objwtlBd^ to is that the auction sale in 
iriaintifh' ftivour in execution of his money decree has equitably 
floled'to confer any l^gal title on him as pniohaser of the house 
indispote: The'inode of exvoution or sale in execution is not 
objected to, but that the result of the proceedings is aitogetfaer 
abortive and inoperative to give plaintiff the title he claims. 
This view is supported by Martani Balkriehna Bhai v. Dhondo 
Damodar Kulkami (0, already referred to where the sale was 
held to be a nullity and altogether void againsi a party who 
otherwise was held beund by the decree. The same view was 
apparently taken in Muihuraman OheM v. Siiappatcmi («). 
The decision in these cases proceeded under Section 99, Transfer 



(')!•£•&• XXn Bom^ 6S4. (•) i. I. B., JJll MaJL, %'r2. 



22 OITIL JUDGMBNTfi-No. 2. [ Rrcori 



of Property Act, but that 13 immaterial aa Section 99 merely 
embodied the prineiple already in force before the passing of 
tha Act. 

Parmanafid v. Daulat Bam (i) quoted by the oonnsel 
for the appellant is clearly distinguishable on the ground 
that in that case the auction sale of eqaity of redemption 
was effected in pursuance of a decree expressly passed for 
that purpose under Section 67, Transfer of Property Act, and 
hence the sale was held as binding on the jadgment-debtor. 
Thaleri Pathumma v. ThancUra Mammad (% merely follows 
Durga Oharan Mandai v. Kali Prasanna iSarkar (•), 
which is more in point. But the dispute in the last case was 
actually raised in execution proceedings and the point at issue was 
that the property sold was incapable of being sold under Section 
266, Civil Procedure Code, as the judgment-debtor had no dis- 
posing power orer that property. This is not at all similar to the 
present caAC where there is no question or doubt that the 
judgment-debtor had a disposing power over the property sold 
(the equity of redemption), but it is pleaded that by reason of his 
purchase the auction purchaser is not equitably entitled to 
foreclose the mortgage virtually withoat ^having recourse to 
proper legal procedure prescribed for that purpose and without 
giving the mortgagee an opportunity to redeem. This is totally 
a different case from the cases relied upon by the counsel for 
the appellant, and I am clearly of opinion that it is open to the 
defendants to rely in the present suit for ejectment on this 
equitable plea, notwithstanding the provisions of Section 244, 
Civil Procedure Code, or the lapse of a period of four years since 
the auction sale. Moreover, as already observed, it does not 
appear that any such objection was raised in the lower Courts on 
plaintiff's behalf and he is not competent to raise it on an 
apolication for revision under Section 70 (a). I reject the 
application for revision and confirm the order passed by the 
lower Appellate Court. 



Applieaiion dUmined. 



on, L. R, ZIIYAU., 549. (•) 10 If. I. J.. UO. 

(•) 1. 1. B., XlVl (Me^ 727. 



Javt. 1907. 1 OITIL JUDGMIKT8— Ne. 8. 2^ 

Ho. & 

Before Mr. Justice Lai Chand. 
FATTEH MUHAMMAD,— (PtAiiTiff),- APPELLANT, \ 

^^^^ > Appellate 8id«. 

SAID AHMAD AND 0THEBS,--(DirBMDANT8), - \ 

&E8P0KDENTS. 

Civil Appeal No. 160 of 1905. 

Limitation Act, 1877, SeeUon 22~-Pr§.§fHption^8uit for pr^-wiption — 
Assignment by vendee pendente lite — Addition of atsignee a» co'dejendant 
after peiiod of limitaHon — Limitation, 

The plaintiff broaght an action to enforce a right of pie-emption 
within the period of limitation preecribed by law. The defendant rendee 

meaigned o^erbiBintercBt to a third party after the inititation of the suit. 

On the application of the plaintiff, after the period of I imitation had 
expired, the Court ordered the aaiignee be impleaded as a co-defeudaot. 
Thexenpon the defence pleaded limitation. 

fltld, that the (nit was sot barred by limitation in oonaeqaence of 
the joinder of the assignee. The proTisicnB of Section 22 of the Limitation 
Act do not apply when tie original enit is contioned against the added 
defendant who deriyes his title from the original defendant by an atwign- 
ment pending the suit. 

Bvput Bingh t. Imrit Tewari (^\ Chuni Lai y. Abdul Ali Khan {^"i, 
Mvstamnet Bhahro y. Molar [Mai (>), Bamam Bingh t. Jiwan {^), 
referred ta 

Nabi Bekhsh t. Falir Muhammad (•) and Barak Chand t. Deonath 
Smhay (•), diatingnithed. 

Further appeal from the decree of A.E, Hutry, Esqutre, Divis onal 
Judge, Amritsar Diviium, dated I7th October 1904. 
Gorcharn Siogb, for appellant 
Faial HuBain, for reapoDdents. 
The judgment of the learned Judge was as follows .*— 

Lal Chami), J.— The lower Gonrte have dismissed the 6uit as 20th July 1906. 
barred by limitation relying on Nald Bakhsh v. Fakir Muham- 
mad (•). It is contended for appellant that the case is distin- 
gnishable on the ground that in the present case the z«sale was 
effected after the suit was instituted and Suput Singh v. 
Imrit Tewari («>, Ohuni Lal v. Abdul AH Khan (•), Mussommat 
Shakro V. Molar Mai (•), Eamam Singh v, Jiwnn (*) aud 



(») /. L, R^ V CaU., 710. (*) 7 P. R,, 1906. 

(•) /. L, B.. XXIIl All^ 381. (•) 18 P. «• 1908. 

(•) 68 P. B, 1879. (•) /. L. B. ZTF ( 



(•)/.L. B^ XXF Calc, 409. 



24 CIVIL JlTDUIM)fm-ir«. 8. )[ 



Seotion 87S, Civil Procedure Code, are relied upon to sbow tbai 
the claim is Dot barred. It appaan to.ioetihat tbe ground taken 
IB valid. Section 22, Limitation Act, does notieem to be applic- 
able when the original snit is continaed against the added 
defendant who deri?e8 his title from the original defendant 
by an assignment pending* the ctoit. The Pi^ Gome's order, 
dated the 15th April 1904, showa that JIadat Ali was added as 
a defendant because it was considered necessary to make him a 
party, and althongh Section 872, Civil Procedure Code, was not 
quoted in the order itFelf or in the applicst'cn 61ed by plaintiff 
yet that section is clearly applicable to the facts of the case 
and the order adding Madat Ali as a defendant may properly 
be held to imply that leave of £7ourt was given as required by 
Section 872, When plaintiff instituted his claim for pre* 
emption Madat Ali had np interest in the propevtiy si^ for 
and could not possibly have been madea'peHyto the 'snii. It 
seems not only unjust but ancicalous'tbBt *the svit ehooid 'be 
held barred becanse' the original defendant has chosen to resell 
the property to another person after the suit was institntcfl. 
In this case it seems doubtful whether the r^NJe was tfected 
after the prescribed limitation had expired, but if the view 
coutended for by respondent be cofiect then a suit may be 
thrown out as barred by leason of a resale effected pending the 
suit ereu aftei' the stipulated period had expired. No claim 
for pre-emption could under the circumstances possibly suc- 
ceed. Section 22j therefore, does not seem to me to be 
applicable where the added defendant derives his title from 
the original defendant by an assignment pending the suit. '?he 
words used in Section 22 are ** when a new plaintiff or defend* 
ant is substituted or added after the instiiiitaon 6f the suit." 
This obriously means a plaintiff or delendant who elawnrin his 
own right and inthat^iense is a new plaintiff or defendant. It 
is intelligible so far as such new plaintiff or defendant is con- 
cerned that the suit should be held instituted when he was made 
a party. 

But when the interest set up t^e added party is .on^y 
derivative acquired pending the suit, then, proper ly speaki^gi 
he is not a new defendant or plaintiff, And the .case ie>one 
merely of continuatiesi of tbe original suit with leave of £onit 
under Section 372, Civil Procedure Code, without any change 
in tlif' date of its institution. This view is farther supported 
by Section 332, Civil Procedure Code, which iipparenily iieats 
the transfer after the institution of the suit as holding under 



Jaww. It07. ] OiyiL JUOGMBNTS-No. 4. 25 

the jadg^ent-debtor and as saoh liable to ejecimenfc. Tn spite 
of the resale plaintiff oonld obtain a decree and then reeover ' 
poBOOSsion in execution. A fortiori his claim oonld not be 
dismissed as barred by limitation bj reason of resale in favoar 
of Madat All, becaose he was added as a defendant after the 
ezpiiy of the stipolated period. The counsel for respondent 
relied npon Harah Ohand v. Ihonaih Sahay (^), but that case 
is clearly dieting oishable on the ground that leare of Court 
was not obtained to carry on the suit in the name of the 
substituted plaintiffs. I therefore, hold that the suit is not 
barred by limitation by reason of Madat AH (who acquired 
his title from the first yendee after the institution of plaintiff's 
snit) having been joined as a co-defendant after the expiry of 
the stipukted period. I accept the appeal and setting aside 
tlie deorees of the lower Courts remand the case to the first 
Court for a decision on the merits. This order will not debar 
Madat Ali from setting up in defence, if he so desiresi his own 
equal or superior right of pre-emption, as the case may be. 
Court-fee on appeal in this Court and the lower Appellate 
Court will be refunded and other costs will be costs in the 
case* 

Affpeal oZbtisd. 

Ho* 4. 

Before Mr. Justice Battigan and Mr. Justice Lai 

Chand. 

UDA AND OTHERS,- -(DEfBNDA!iTB),-.APPKLLANTS, 

Versui y APMiLLiTS Sidb. 

MUL CHAND AND ANOTHER,-^ PLAiMTiprs),- 
RBSPONDENTS. 

Civil Appeal No. 351 of 1904. 

CivH Procedure Cod9, 1682, 8wU(yM 462, 606— Jrbtfr«eion— Jioard— 
D$cr9e 0% judgmeiU tn accordance vnth an award— B§f»r9nce by guardian 
ad litem of a minor uiihoiU leave of Coutt—Admiisibility of ohjeciion 
denying validity of refereftce on revision^Mortgage — Conditional sale — 
Duty el Oomrt to refer to Deputy Commieeioner if made hy a member of en 
agricuUmral tribe — Punjab Alienation of Land Act, 1900, Section 9- R^ueal 
efOawt to recognize a partg cw a membur of eueh tribe who failed to prove 
hie meeerUen no ground for revision^ Punjab Oourie Act, IS84, Section 
70 (!)(•). 

HM, that a decree passed iu aocordsDce with aa awsrd made 
ander Chapter XXXYII of the Code of OiTil Prooedare, 1862, on a 



(<)/.£.B^XZr Cak.,409. 



26 QIVIL JUDOMBNTS-No. 4. [ BWWB ' 

reference to arbitration in the conrse of a sait cannot be set aside cm 
reviflion on the groand that some of the defendants being minors reference 
could not be made by their gnardiane ad litem without obtaining 
expreas sanction of the Oonrt under Section 462, especially where the 
objection was neither raised in the Ooort below nor entered in the 
objections 61ed against the award within the period prescribed- under Article 
158 of tbe Limitation Act. 

Lahshmana Chetti t. Ohrinathamhi OhetH (M> Bira t. Dina (•), MaUh 
Borah v. Anohh Rat (*), and Hardeo Sahti t. Qauri Bhankar (*), 
referred to. 

Althongh it is the daty of a Oonrt to refer a mortgage of land 
by way of conditional sale to the Depntf Commissioner nnier Section 
9 of the Punjab Alienation of Land Act if it was made by a member 
of an agrioaltnral tribe, bat it is for the partj desiring te obtain 
benefit of that enactment to allege and prove that ke is a member 
of an agricaltoral tribe. The mere assertion by a party that he is so 
and the refusal of the Gourt to recognise him as such does not amount to 
material irregularity and is not open to revision by the Chief Gourt under 
Section 70 (1) (a) of the Punjab Courts Act, 1884. 

First appeal from the decree of Munshi Muhammad Tusaf, 
Additional District Judge ^ Hissar, dated 23rd January 1904. 

Beechey, for appellants. 

Dwarka Das and Ishwar Das, for respondents. 

Tbe judgment of the Court was delivered by 

16^^ June 1906. ^^^ Chand, J.— This is an appeal against tbe decree of tbe 

Distiict Judge of Hissar decreeing plaintifPs' suit for possession 
aa owners by foreclosure of a conditioDal mortgage. Tbe decree 
purports to bave been passed in accordance with the terms of 
an award, filed by arbitrators, and there is no allegation iu tbe 
appeal that the decree passed is in excess of, or not in accordance 
with, tbe award. Tbe appeal, therefore, does not lie. Treating 
tbe casr, however, as an application for revision two contentions 
were urged against the decree of the lower Oonrt. 

(1) That tbe case shoold bave been referred to che 

Deputy Commissioner for taking action under 
Section 9, Punjab Land Alienation Act, and conlii 
not, therefore, be referred to arbitrators for 
settlement. 

(2) That some of the defendants being minors, reference 

could not be made by their guardians ad Utem 
without obtaining express sanction of tbe Court 

(>) I. L. R., Zrir Mad., 826. (•) 18 P. B., 1891, F. B. 

(•) 87 P. Rn 1896. (^) /. £. B^ XXVm AU^ 8S. 



JiiiT. 1907. ] CIVIL JUDOMBNTS-No. 4. 27 



ander Section 462, Givil Prooedare Gode, and that, 
as a matter of fact, there was no written application 
for reference by these gnardians ctd lit^m. 

Neither of l^eae contentions can preyail* 

As regards (1) it proceeds on an assnmption that the 
defendants, mortgagees, in this case were members of the 
Bgricnltnral tribe, as notified for the District by the Local 
GoTernment under Section 4, Pan jab Land Alienation Act. 
It is admitted that defendants as Bishnois were not included 
in the notification in fores at the time when the snit was 
institoted, though they have been so included in a notification 
issued since the passing of the decree. The latter circamstance 
is immaterial, as the second notification cannot have a 
retrospective efPect. It was, however, contended that Bishnoi 
is the name of a religious sect and not of a tribe, and that the 
defendants, petitioners, are really Jats, who were incladed in the 
original notification as an agricultural tribe. Bat there is 
no proof on the record that the defendants are Jats. It is 
apparent from the District Gazetteer and Extracts from Gens us 
Report for 1883, that Bishnois inclade Jats, Kajpats, Banins and 
other castes, and that since the foundation of «the sect its 
members have discarded all caste and tribal distinctions, and 
have formed themselves into a separate class or sect with 
special i nles relating to marriages and other ceremonial rites. 
In their application, dated diet July 1903, it was alleged by 
the defendants that they were Jats by origin, but the 
Court was asked merely to postpone the case pending dispofial 
of their application to the Local Government for being notified 
as an agricaltural tribe. No request or prayer was made to 
fix an issue, or to make an enquiry that the defendants were 
really Jats. Under the circumstances it cannot reasonably be 
held that the District Judge has acted with material irregularity 
in not fixing such insue, or not ordering sach enquiry. It was 
further argued that the Oourt was in any case boand to make 
the enquiry, but this argument is entirely fallacious. It is no 
doubt the duty of the Gourt to make a reference ander Section 
9, Punjab Land Alienation Act, in case of a mortgage by a 
member of an agricultural tribe. But it i% for the party 
applying for such reference to allege and prove that he is a 
i9ember of an agricultural tribe. If the party making the 
application does not move the Gourt to order any such enquiry 
but merely asks for an adjournment which, for reasons given, 
the Court did not think^fit to grant, it cannot be argued thai 



28 . ClVili JODOMlNtS— Na 4 [ 

the Oonrt has failed to ezeroise itii jarisdiotion, or has 
with irregolarity in the exercise of its powers. Further the 
allegation pnt forward that the defendants are Jats and, 
therefore, members of an agricaltoral tribe would oonstitnte 
but one of the issaes m the case, an issue of fnct both in form 
and sabatanoe. Bot the reference to arbitration oiroamsoribed 
the whole dispate obviously including all issues which 
wovld or did arise on the allegations. The arbitrators have 
not given anj special finding on this point, but the 
award delivered in plaintiffH* favour necessarilj implies a 
disposal of all issues against the defendants. Moreover, the 
objection taken to the award on the ground under notice was 
expressly disposed < f by the District Judge against the 
petitioners and we are not prepared to say that the decision of 
the District Judge is erroneous. 

Even if it were the contention would not be maintainable 
on revision having aht)aily been disposed of by the District 
Judge after due and proper consideration. For all these 
reasons thei^efore the first contention must be over* 
ruled. 

As regards the second contention, it was not raised at 
all in the lower Court, nor entered in the objeotions filed 
against the award within the prescribed period. It cannot, 
therefore, now for the first time, be raised in revision. It is 
not easy to discover how the District Judge has acted with 
material irregularity in not considering, or overlooking an objeo- 
tion not rai«>ed before him. It was, however, contended that 
the objection is fatal to the reference. This does not appear to 
be the case. Assuming previous leave of Court was necessary 
for a reference to arbitration by a guardian ad Uiem of » 
minor yet the result of want of leave is merely to make the 
agreement only voidable. It cannot be treated as an objection 
under Section 506, Civil Procedure Code, that the application 
for reference was not by all the parties. The application was, as 
a matter of fact, made by all the parties, and it is not necessary 
that such application should be in writing {Shatna Sundtam Iyer 
V. Abdul LaHf (*). All that could properly be contended, under 
the circumstances, would be that it was not a valid application 
by all the parties, a matter which does not necessarily contravene 
the express provision of Section 506, Civil E^rocedure Code. 
But even if the objection vitally affected the reference it is • 
really au objection to tbe validity of the award based on the 
reference, and not, as was argued, an objection altogether nneon- 



jAmr. 1907. ] OIVIL JUDOMSKTS— Mo. i. 29 

neeted with the award. It is, therefore, an ohjeotion which oaght 
to have heen arged within ten days, prescrihed onder Article 
158, Limitation Act, ai^d not haying heen so urged the peti- 
tioners are now precluded from relying npon it in order to set 
aside tho award and the decree passed in accordance with the 
award. Under the ciroamstances it is nnnecessary to decide 
the legal question, viz,^ whether it was necessary to ohtain 
leave of Gonrt under Section 462, Civil Procedare Code, — a point . 
on which the authorities are not connistent— vide Lakahmmna 
OketH V Chimathambi Ohetti (>), Bira v. Dina (*), Mniak Torab 
▼. Auokh Bat ('), and Bardeo Bahai v. Oawti Shankar (*). It is 
sufficient to rematk that the oheervations in Malah Torab T. 
An^ikh Rai (') and Hardeo Sahai v. Qauri Shanknr (*) seem to 
be obiter^ that the Madras case was a case of settlement 
by award without the interventioB of the Court, and that the 
rule of law was accepted in Htra y. Dina (*), without any discus- 
sion on the mere faith of the dictum in Malak Torab v. Anokh 
Bat (*). Treating the matter as an open question the view 
ezpreeeed in Bardeo S'thni v. Oawri Shanhar (*) seems to be 
more consonant with the wording of Hection 406, Civil Procedure 
Code, which requires an nppUoation to be filed in Court if the 
parties desirf a reference to arbitration. 1'he word " agreement " 
in Section 562, Civil Procedure Code, seems to refer to an agree* 
ment by way of settlement rather than of the nature of an appli- 
cation under Section 406. As contended by the learned pleader 
for the respondents even if leave were applied for reference 
to arbitration on behalf of a minor, there would hardly be any 
materials referable for deciding whether the leave should or 
should not be granted. It is, however, unnecessary to decide thib 
point in this case, as we hold that the objection taken is not 
entertainable ; becaune it is an objection against the validity 
of the award and was not filed within the prescribed period, 
and mcnreover was not raised in the lower Court, and is, therefore, 
scarcely admissible on revision. 

Wp, therefore, hold that no valid grpnnd is made out for 
ratting aftide the decree passed in terms of the award, and we, 
therefore, dismiss the appeal with costs. 

Appoal Htmiaed. 



{ ») i. L, R^ inV Had,, 826. (•) 18 P. «., 1891, f. B. 

y) 87 P. B., 1896. (•) 1. L. B,, XXVIUAU., 86. 



30 



CIV1[ JUDGMlNtS— N#. 5. I Hico»D 



ApffLLAn Sm.] 



No. 5. 
Before )lr. Juitke Lai Chcmd. 

KABAM CHAND 4ND ANOTBER.,— ^Pi^^ntiffs),— 
APPBI.LANTS, 

T' reus 

KHUDA BAKH5SH, (i)BrENDiNT),— RESPONDENT. 

(Uvil Appeal No. 704 of 1904 

Right of iuit— Decree for possession of equity of redemption'^ Pre-emptor 
chtaining posseseion of property tnutead of equity of redemption Suit for 
restitution of property wrongiullp taken - Q^estion relating to the execution, 
discharge or satisfaction of decree —Discretion of Court to treat plaint as an 
application for restitution^Givil Procedure Oode^ 1882, Section 244. 

*A' parchased from * B * the equity of redemption in a certain property 
wkioh was p- eviooBl j mortgaged with posieeflion to * G * and then redeemed 
the mortgage of 'C ' * D ' Boed ' A ' to enforoe hia right of pre euiption and 
got a decree for delivery of poeseBsion uf equity of redemption, but in 
execution of his decree he somehow obtained posBession of the property 
in lien of its equity of redemption. * A ' then filed a regular suit to recover 
poBseBBion of the property as a morti<Agee on the ground that ' D ' bad 
taken unlawful poBae^oion in execution proceedingB. TherHupon the defenoe 
oontemded that the Buit was barred by the provisions nf Section 244 of 
the Civil Procedure Oode. 

Held, that the Buit was not barred under Section 244 of the Code of 
CiTil Procedure. The question to be decided in this suit did not relate 
to the Hxecution, discharge or eatisf action of the originnl decree within 
the moaning of that section because the decree in the pre-emption suit has 
and had no oonoem with it. 

Bash Beharee Lai r. Behee Wmjun (^) followed. 

Beld also that even assuming that no regular suit lay the plaint should be 
regarded nnder the circnmstinceR of the case as an Hpplication for exeontion 
of decree for claiming roBtitution of property wrongfully taken by ' D.* 

Biru Mahata V, Sh^iima Churn Khawas (■), Jhamman Lai v. Kewal 
Bam (•), Pasupathy Ayyar v. Kothanda Rama Ayyar (*}, and Jotindra Mohan 
Tagore r. Uahomed Basir Chowdhry (•), followed. 

Further ttppeal from the decree of Oaptain B. U, Boe^ Additional 
Divisional Judye, Rawalpindi Division, dated 22nd April 1904. 

Spkh Dial, for appellants. 

Shafi, foi rwpoDdent. 



(>) U W B.. 516. (•) f. L. B., IXII All, 121. 

(•) /. L. B„ nil Cale., 488. (M 1. 1. R., XXVIII Mad., 6i, 
i) I.L. M., ZllU a«k.,332. 



Jamt. 1907. ] CIVIL JUDGMENTS No. 6. |1 



The jodgmeiit of the learned J udge was as follows :— 

Lal ("hand, J.— The execution file shows clearlj tb»f the SOth July 1906. 
defeudant-respoDdent ohtained pospessioD of the lands in suit 
bj execoting his decree for pre em pt ion. The decree was 
nierely for delivery of posbesBion of equity of Redemption in 
property now in snit, Hnd neither tie application for execution 
nor the w»i runt for delivery of popsepsion issued by the executing 
Conit ever intendtd that the decree-holder should obtain 
possessicm of anything beyond the equity of redemption decreed 
in his faviior. But by a mintake or oversight on the part of the 
Patwari who delivered pofisession defend ant -respondent was 
deli/ered possession of the lands in suit instead of the equity 
of rt-demption. The plaintiffs who bad redeemed these lands 
from prioi mortgagees pre vions to defendant's suit for pre-emption 
of equity of redemption, now sue for possession as mortgagees, 
on the (ground that the defendant-respondent hsp taken 
unlawful possession in execution proceedings. The fir^t Court 
decreed the claim, but the lower Appellate Court has dismissed it 
on the ground that the suit is barted under Section 244, Civil 
Procedure Code, observing at the same time that the defendant- 
respondent had no business to obtain possession in execution of 
his deeree. 

I am unable to agree witli the lower Appellate Court that the 
suit is bhrred under Section 244, Civil Procedure Code. The two 
authoiitit'H quoted, m'^., Arumiadhi y, Natesha^^) nnd Ktmy all 
V. Mayan (*J aie nut applicable, and tliey were not pressed on my 
attention in argument by the counsel for respondent. He however 
referred tu a large number of cases— r»«., Shurut Soonduree Dabee v. 
/ uresh tiara in Boy (•), Jogendrt* Saratn Koonwar v. Bauee 8urun 
Moyee (*), Appa B o v. Venkmtanamanayam'na (•), Vtraraghada v. 
VenluUa (•), Arundadhi v. Natpsha (>), Bahiman l\hatt v. Fateba 
Mty.'h {^ ), Ba^^hunath Qanesh v. Mulva Amad (*)j Mhi^uUah 
V. Imami (•), Beg Raj Marwari v. Sreernuthy Kundali Debya (***), 
Sri Saratn y» Daulat Bam (*'), Ohoudri Qurmukh Singh y. 
MuM$am-^at Mir%a Nur v**), :.u*i Kalu Khan v. Abdul LaUf (*•), 
none of which seems to me to cover the present case. The 

{^) I L n,V Mad , 891. (») /. L. H„ IV Mad., 286. 

(•^ /. /.. «., VII Mad., 265. (•) i. L. B., XII Bom., 449, 

(• , 12 Tf. B . 85. (•) I. L. R„ IX All., 229. 

(*) U W. B., 39. (»») 8 Oale. W. N., 863. 

.•) /. I. B., XXIII Mad., fiS. ( • » . 9 P. B., 1888. 

(•> /. L. B.. XVI Mad., 287. ( » •) 8B K R, 1801, 
('•)4l?.B,l»04. -^ 



32 onriL juiKsniBwrs— no. s. [ rkjoed 



plaintifiFs have not sued as jadgment-debtors of the pre-emption 
case. They were then Boed as vender e of the eqnity of 
redemption and a decree waB passed against them as BDch. 
Their present Buit is based on the gronnd that they are 
mortgagees of the land in Boit, having redeemed it from the 
prior mortgagee and that as such they are entitled to hold 
possession nntil dnly redeemed. The dispate therefore is not 
between a decree-holder and a jndgment-debtor bat between 
an owner and mortgagee of the property, and Booh dispute in no 
Dense relates to execution discharge or satisfaction of the decree. 
It is a dispate with whic'h the decree in the pre-emption sait 
had and has no concern. 

Possession was doubtless obtained by the defendant- 
respondent hy executing his decree, but in order to apply 
Section 244, it is fiuther necessary to show that it U a 
question between the parties to the suit in which the decree 
was passed and relates to execution discharge or satisfaction of 
the decree. The parties are nominally the same, but at leaat 
iu\e of them, the plaintiff, occupies a totally different character, 
.ind the dispute in no way relates to execution of the decree 
beyond the accomplished fact that possession was delivered to 
respondent by the Patwari contrary to the express orders 
of the Court executing the decree. No authority was quoted 
exactly applicable to such circumstances. In Shurut Soanduree 
Dabee v. Furesh Narain Boy (^) the actual facts are not given, 
and the case was remanded for enquiry. In Jogendro Narain 
Koonw(ur v. Banee SuruaMoyee (^) it was held that " however 
*' absurd might be the order of the Court which directed the 
*' thing to be delivered still unless jurisdiction were given 
" no other Court would have the power to alter the direction in 
" question." Referring to Bash Beharee Lai v. Behee Wajun (*), 
qnoted in argument to the contrary, it was explained that 
'* there the learned Judge would seem to have said that the 
'* decree-holder had taken Bomething which neither the Oourt 
*' emeeuting the decree it'r the decree' itself gave him*^ and there 
it was held that for that something a separate suit would lie 
to recover it. If this is the meaning, and I undemtand that 
it is so, of the decision in question I do not at alt dissent from 
it. It appears to me that the cuse Bash Beharee Lai v. 
Behef Wajun (*) is exactly applicable to the oircnmstanoes of the 

0)1« ir.JL,85. (•) U W. H.. 89. 

(•)Ulir.«.,tt«. 



Jany. 1907. ] CIVIL JODGMBNTS— No. 5. gg 

present case. The judgment in that cas«) delivered by Sir 
Bamee Peaoook, Chief Justice, pointed oat that if a decree is 
obtained for delivering a cow &nd a horse is delivered that 
cannot be considered to be an act done in ezecntion of the 
deoi'ee. " It would be doing something wholly different from 
" that which was ordered by the decree." la that partioalar 
case the decree merely ordered that an embankment shonld be 
lowered to its proper height, and the Nazir in addition caused 
breaches or boles to be cut in the embankment so lowered 
becanse he thought them necessapy for the protection of the 
band from the flow of water over its surface. It was held that 
this was not done in execution of decree. Similarly the act of 
the Patwari in the present case in delivering possession of land 
when warrant of Ooart directed delivering possession of 
equity of redemption cannot b^ called an act done in execution 
of decree. The case is very much alike to another illustration 
given in the same judgment, ms*, where a decree should order 
" Rs. 500 to bo levied, and instead of levying Rj. 600 the 
" execution Gourb or the Nazir should deliver a zamindari." 
It appears to me that Section 244, Civil Procedure Code, 
bars H regular suit where the question relating to 
execntion of a decree is raised bond fide. But when the decree 
itself on the face of it is wholly irrelevant to the question 
raised and the wrong-doer takes the plea of bar to shield 
his unlawful gain secured even against the express orders of the 
execnting Court, possibly in collusion with the oflScer executing 
the decree and in the absence of the judgment-debtorti, it wonld 
seem to me that Section 244 wonld have no application. In the 
present case the Divisional Judge has found that the 
defendant had no business to obtain possession of the 
land, and there is not even a plansible defence on the 
merits. The matter is absolutely clear that the defendant could 
not obtain or retain possession without payment of Rs, 1,079, 
and the plea of bar nnder Section 244 was raised on the 
gronnd which is nntrne that the decree awarded actual 
possession of land. Under the ciicumstances no bond fide 
question relating to execntion of decree arises in the case and 
Section 244, Civil Procedure Code, is no bar to the maintenance 
of the regular suit. 

But further even if there were any room for doubt on this 
point the plaint may be treated as an application for execution 
of decree for claiming restitution of lands wrongfully delivered 
tp deftndant by the Patwari when execnting the decide- 



84 



CIVIL JUOGMBNT8-N0. 6. 



[ Bmobd 



Viz.f Biru Ma- 
hat'i V. Shyama 
Churn KhawQsi * ), 
Jhamman Lai y. 
Eewal Bam («), 
Pasupathy Ayyar 
V. K o t h an d a 
Mama Ayyar (^J, 
and Jotindra 

Mohan Tagire v. 
Mohamed Bnsir 
(jhowdhry (*). 



This conrRc was approved of or «d(»pted in *he eases noted 
OD the margin. 

Tho onlj qaeption for detetminatioD niider the circorostances 
would be i\lifflier the Mnnsif who heaid and decided the 
present Piiir was cc^mpefent to entertain the application for 
refltoratiou. I have no d(»ubt that he was competent both by 
reason of transfer of basinets by the Dislrict Judge as well as 
being the snccessor in oflBce of the Monsif who executed the 
decree. Theie is no conceiv3i}le defence against the application 
for restoration, ii\e mistake made being apparent on the 
execution file. 1'he plaintiff is therefore clearly entitled to claim 
possession of the lands in suit even by ic stitution in execution 
proceedings. 

For the foregoing reasons I accept the appeal, reverse the 
decree of thi- lower Appellate ('ourt and n 8torp the decree passed 
by the first Court with costs throughout. 

Afpeal allowfid. 



Appbllatb Sidb. 



No, ft 

Before Mr, Justice Lai Ch md. 

MAULA BAKHSH AND OT HE RS,^( Dependants),— 

APPRLLANTS, 

Versus 

DKVI DITTA,. (Plaintifp),~RESPONDENT. 

Civil Appeal No. 884 of 1906. 

Custom^ Pre'emption— Pre-emption on sale »f house properly— KAt' a 
hHsftar Belt Ham, AmiiUar city— Punjab Laws Act, l«72, Section 11. 

Found th'it the custom of pre-emption in respect of sal«»6 of boose 
prop«it> ba*ed ..n vcinage exists in Katra Mihfiai Beli Ram, a Bob-division 
of the city of Amritstir. 



(») /. L. i?., XXil Crifc, 48 8. 
(•) /. L. I?., XXII All., }2L 



(») L L R., XXVIII Mad., 64 
(*) /. L R„ XXXI I Oak., 33«. 



tMKY. 1907. ] CIVIL jDMM'BNTS^Ka 6. ^ 



Sohwwa Uptl ▼. Ghattu Mai (^); Mamon v. Qhaunsa and others {*) 
referred ta 

Qokal Okand y. Mohan L9I (*) distinguished. 
Further appeal from the decree of A, B. Hurry, Esquire^ Vitiisional 
Judgey Amritsar Division, dnted 20th Fehruiry 1906. 

Oertel, for appellants. 

Sham Lai, for respoadeDt. 

The jadgmeafc of the learned Jadge was as follows : 

Lal Chand, J. — The property claimed bj pre-emption in 6//* August 1906. 
this sait is situate in Katra Missar Bell Ram, a well recognised 
sab-division of Amritsar city. The defendant vendee in his 
examioation, dated 14th April 1905, admitted that if a castom 
of pre-emption be foaod to prevail in the katra plaiutifif wonld 
hnye a soperior right. The vendee th as waived all objections 
on score of the uatare of the property which were raised in his 
written statement, and the issae 6xed was whether a oastom 
of pre-emption by vioinage existed in Katfa Beli Bam. 

The lower Ooarts have agreed in finding this issae in the 
affirmative in plaintiff's favonr, and I see no reason to arrive 
at a different conclasion. 

In two cases relating to properties sitaate in this sob- 
division decided on 22nd February 1S65 and 15th Aoga«it 1876 
a castom of pre-emption by vioinage was found to prevail. In 
the first case (Ghitto v. ytaya)^ decided by Manshi Jaishi 
Bam, the existence of castom was admitted by the vendee and 
the suit for pre-emption was decreed. In the second case 
(Dina Nath v. Taboo) the existence of castom was denied, 
bat the claim was decreed by Pandit Behari Lal, Extra Assist- 
ant Commissioner, after an exhaustive and carefal enquiry. In 
this ease an instance (Malan v. Umar BnUhsh) in Kaira 
Parja, an adjoining sab-division, was cited to the contrary. But 
this instance was explained in Sohawa Mai v. OhcUtu Mai (i), 
where after a carefal consideratiou of evidence in the case and 
of twelve instances in neighboaring sub-divisions including the 
one concerned in this suit* a custom of pre-emption bj vicinoge 
was fonnd to prevail in Katra Parja. Tbis case is of consider- 
able importance as Kaira Parja adjoins the sub-division 
now under reference, while quite recently the same custom 
was also found to exist in another sub-division in tlie neigh- 
bourhood, vi%,^ Katra Moti Bam, Mamon v. Ghaunsa and 

0) 164 P. R., 1882. (•) 90 P. /?^ U'OU. 

C»j 6 P. jB., 1905. 



36 ^^^IL JUD(3lMBNt8— No. 6. [ EicoAD 



others 0). PlaintifiPs claim for pre-emption is thos 
SDppor ted by two instances of admitted and proved custom 
in the snb-divisiou itself supplemented by several instances 
in the neighbouring sub-divisions. 

It was argued by the counsel for appellant relpng on 
Gokal OAand V. If oAan Xai (a>, that two instances in the snb- 
division combined with several instances in the neighbourhood 
are not sufficient to establish the alleged custom, and further 
that the existence of alleged custom was rebutted by numerous 
uncontested sales in the sub-divisiou itself. The authority 
quoted for appellant is distinguishable, as it was held in that 
case that the existence of right of pre-emption had been 
assumed in the instances quoted and in ** neither was there 
any real contest on the point." lu the present case as already 
shown in neither instance was the custom assumed. In the 
first case decided in 1865 the vendee's statement made it clear 
that he implicitly acknowledged the existence of pre-emption 
and in the second case the existence of custom was established 
after contest and due enquiry. 

As regards the uncontested sales, nine sale-deeds were 
produced, the fii'St Court having rightly rejected alleged sales 
which were not supported by sale-deeds. The circumstances 
attending these sales are not fully borne out on the record and 
it is no way improbable that the omisdion to sue for pre- 
emption may have been due in eioh case to causes independent 
of the absence of custom of pre-emption. It may have been 
due to want of funds or absence or reluctance to litigate with 
a powerful or influential vendee, or the sale may have been 
kept secret or influences brought to bear on the pre-emptor to 
give his consent or to desist from ass<)rtiDg his claim. 

The sale-deeds produced extend in time from 1891 to 1905 
and their number decidedly is not so large or overwhelming 
as to negative the custom found to prevail in 1865 and estab- 
lished after a careful enquiry in 1876. The evidence relied 
upon in rebuttal is thus intrinsically weak being of a negative 
character supported only by private transactions, and it cannot 
reasonably be held to outweigh the affirmative proof established 
by a decision of Court after contest and enquiry. In the 
reported cases relaiing to Kat a Parja {Sohaw>i Mai v. Ghattu 

(0 P9 P. R., 190S. (•) 6 P. ft., 1905. 



JAMt. 1907. ] CIVIL JDDQMBNTS— Mo. 7. 37 

Mal(^), several sales t<> strangers in the kucha itself were 
relied upon against the prevalence of pre-emption, bat these 
were not held as sufficient to negative the custom. 

It farther appears on the present record that the defendants 
indirectly acknowledged the existence of onstoro by offering in 
reply to plaintiff's notice to give ap the house if they were paid 
the full price as entered in the sale-deed. 1 nave therefore no 
doubt that custom of pre-emption by vicinage is proved to exist 
in Katra Missar Beli Ram where the property in suit is 
adnciittedly situate. I therefore uphold the decrees of the lower 
Courts and dismiss the appeal with costs. 

Appeal diimi88$d. 



'Appbluti Siob, 



No. 7. 

Before Mr. Justice Chitty and Mr. Justice Lai Chand. 

FATEH MUHAMMAD,— (Defendant), -APPELLANT, 

Versus 

KARIMAN AND OTHERS,— (Plaintiffs),— RESPONDENTS. 

Civil Appeal No. 490 of 1906. 

Custom — Pre-emption^ Claim to pre-emption by reason of ouming site of 
Howe fold— Muhalla Khajurantoala, Jullundurcity. 

FoKfuf, that a costom of pre*emption eziRts in Muhalla Khajaranwala 
in the oitj of Jallondnr under whioh the owner of the site has a right 
of pre-emption in respect to the buildings erected on it. 

Further appeal from the decree of J. G. M. Uennie^ Esquire^ 
Divisional Judge, JuUundur Division^ dattd I9th May 1905. 

Mahammad SbaG, for appellant. 

Shah Din ^ for respondentB. 

The judgment of the Court was delivered by 

Lal CflAND, J. — This is an appeal in a suit for pre-emption 4^;^ August 1906. 
of a hoQse situate in Muhalla Ehajuranwala of the town of 
Jullnndur. The plaint iff -responJent is owner of the site on 
which the house sold is built, and as such has claimed pre- 
emption by custom. The defendant-appellant pleaded that 
no custom of pre-emption existed in Muhalla Khajuranwala, and 
that at any rate no custom existed as would entitle the plaintiff 
I/O claim pi^eraption by reaBon of his being owner of the site of 



(^) 154 P. R, 1882. 



^ GlYth JtJt>QMBNTS-No. 7. t BMcoBb 

boose sold. Tbe lower Courbs liave agreed in decreeing the claim, 
and tbe sole qaestioD in appeal is whether the plaintiff has 
BQCceeded in proving the alleged castom. The lower Courts 
have neither discassed nor referred in any detail to tbe 
evidence on which they have based their decision. 

The District J adge has contented himself with remarking 
that there are several jadgments on the file all relating to the 
locality in dispute, dating from 1869 to 1901, in which the right 
has been admitted by Courts over and over again. The 
Divisional Judge has held that it is notorious that pre- 
emption on the ground of vicinage is universal iri the town of 
JuUundur, and that it seems to be admitted that pre-emption 
has been suooes-f ully claimed all round. This is not at all 
satisfactory, specially as the Divisional Judge hjis overlooked 
that it is not sufficient to find viciiiage as a ground for pre-emption 
in this case as the suit is base<l not on vicinage but on a 
peimliar allegation that on sale of a house in MuJulla 
Kh»ijuraijwala the owner of the site has as such a right of pre- 
• emptiou. 

It is therefore obviously necessary to discuss the proof on 
^hich plaintiff has relid to support his claim as it is 
stroDuoasly argued for appellant that plaintiff has entirely failed 
to prove the alleged custom. Neither parfy has relied on oral 
evidence as having any bearing on fhe question of custom at 
issue, and the proof adduced by plaintiff consists entirely of 
judicial precedents which it is argued for appellant is not 
strong and sufficient to prove the alleged custom. 

Before proceeding, however, to discuss the judicial pre-^dents 
it is necessary to clear the ground as regards the loaality of 
the slaughter-house inside which were situate the two houses 
which formed the subject matter of two ouc of the eight 
judicial precedents relied upon by plaintiff. According to the 
plaint the house now in dispute is described as situate in 
Muhalla Khajuranwala near the Butcher Khana. It was 
contended for appellant that the Butcher Khana is a separate 
locality not within Muhalla Khajuranwala. But this 
contention is at once set at rest not only by the oral evideuce 
of two witnesses for appellant but also by the contents of the 
sale-deed io Ahmed v. Bahiniy decided on 30th April 1874 , 
where the house sued for situate inside the Butcher Khana was 
described as situaie in MuhaUa Khajuranwala. There is therefore 



JX«T. 1907. ] CIVIL JUDGMHNTS-No. 7. 89 



no poasible reason for doabting that the Batcher Khana lies 
within Muhalla Khajaranwala. 

The instances relating: to honses inside the Batoheir Khana 
must therefore be held as instances jdthin the muhalla in 
qnestion. 

To sfart with then there are the two following instances of 
honses inside Bntcher Khana pre-empted by plaintiff or his 
predecessor in title on the s«ime ground as forms the foundation 
for the present claim : — 

(1) Ahmed V. Bahirrij decreed on 30th April 1874, in 

favonrof plaintiff's father. The plaintiff relied in 
his plaint on custom prevailing in the town, and 
he supported his assertion not merely by oral 
evidence but certain judicial precedents, a list of 
which was filed and which were called for by the 
Court. The claim was decreed, and the only 
question pressed in appeal filed by the vetidee was 
one relating to price and not to plaintiffs* right of 
pre-emption. 

(2) (Walt Dad v. Naihu, decided on 24th December 

1891)* In this case a distinct issue was fixed whether 
plaintiff hnd a right of pre-emption by reason of 
ownership of the site of the house sold, and it was 
decided in plaintiff's favour on the strength of 
three judicial decisions and eTidenoe of two 
witnesses for defendant who supported the alleged 
custom. The three judicial precedents included 
case No. 1, and two cases relating to Muhallas Ali 
and Say ad an, respectively. 

In addition to those two judicial precedents inside the muh- 
aUa in question there are the following five instances of houses 
situate in the neighbour i^^g muhtillas : — 

(a) Jafar v. Bam, decided on 19th October 1869, 
relating to a honse in Muhalla -Ali, which admit* 
tedly adjoins the muhalla in question in this suit. 
A distinct issue wrs fixed whether plaintiff had 
superior claim of pre-emption by reason of owning 
the site. Three persons were appointed as com- 
missioners to report, two of them being selected 
by the parties and the third was nominated by 
the Court. The three commissioners ananimonaly 



40 CIVIL JUDGMENTS— No. 1. \ B>oort> 



reported the issue id plaintiff's favoar, and his claim 
was accordingly decreed. 

(6) Jafat V. ahadi, decided on Slst July 1876. This 
case also related to a house in Muhalla Ali. A 
distinct issue as to pre-emption by ownernhip of 
site was fixed as in case (a), and the Court found 
in plaintiff's favour on evidenoe and enquiry made 
by a local commissioDer. 

(c) Fateh Muhammad v. Jani, decided on 22nd 
August 1895, claim for pre-emption of a house in 
Muhalla AH on the same fjfround as in (a) and (6). 
Suit was decreed and instance (f) was referred to 
as a precedent. 

{d) Bahim Shah v. Jas, suit relating to a house in 
Muhalla Snyadan decided according to the award 
of arbitrators. 

(e) Sayad Ali 8hoh v. Qhulam Muhammad, decided 
on 28th December 1901, relating to a house in 
Muhalla Ehadian on the ground of ownership of 
site under the house sold. 

An iesne was fixed as to whether Muhalla Khadian formed 
a sub-division and whether the alleged custom of pre-emption 
prevailed in that muhalla. It was found that Muhalla Khadian 
was surrounded on three sides by Muhalla Say»d Kabir and 
another muhalla, and on the south by the public road, and that 
it formed a separate sub-division. Muhalla Ali is described as 
situate in the same locality, and the obvious inference from the 
finding is that Muhalla Khadian is one of the several muhalla 
including the muhalla in qaestion in this case which lie outside 
the old wall now not traceable and which have apparently been 
inhabited since the British occupation. It was fonnd by tho 
Court that the alleged custem prevailed in the muhalla, and 
the finding was supported by two instances of the same nature 
inside the muhalla decided in 1891 and 1894, and an instance 
in the adjoining muhalla of Sayad Kabir. 

It is thus clear that there are at least six judicial precedents 
exactly in point, some of which again are based on other inde- 
pendent instances of the same nature. Two of these precedents 
relate to properties situate in Muhalla Khajuranwala iteelf 
and four appertain to adjoining sub^iivisions. This is 
decidedly a very strong and cogent proof to support the custom 



■llBg6d by the -phratiff. The oouMel for appelant generally 
ooatended that noae of these cuees were decided by a Ooart 
of appeal, and he relied npon a passage in Panna Lai v. Bhagwan 
Da$ (^)y that it isnot for Courts to inyent castom of pre-emption 
by oarelessly passing decrees foanded on .fallacious pre- 
mises. 

We arc unable to see any force in the argument used or 
that the passage quoted has any relevancy. No hard and 
fast rule can be laid doVn for judging the weight to be 
attached to a judicial precedent quoted as an instance in support 
of a particular castom. The sufficiency of proof must depend 
on the circumstances of each case, and a judicial precedent ia not 
less cogent simply because it was decided by a Court of first 
i"*t anflft| though after due deliberation aud consideration* 
In the present case the detailed particulars of each precedent 
already given show distinctly that in each case the alleged 
custom was found to prevail af tor prop^ enqairy and in some 
osses after making local investigation. These judgments were 
not appealed' against, by tha vendees, but the omission^ to 
appeal would rather imply that the decrees passed 
were felt to be in accordance with the prevailing cus- 
tom. We see therefore no reason for holding that 
plaintiff has failed to prove the alleged castom. In deciding 
this question we have altogether left out of consideration 
the precedents qnoted to show that a custom of pre-emption 
by vicinage prevails generally in the town of JullunHur, Sheikh 
8kahr Ya/r v. Imam-uMin ('), (and one instance quoted in this 
oase ia in lihAhdlla Khajuranwala itself). It is unnecessary in the 
present case to consider how far the prevalence of pre-emption 
by vicinage would have a bearing if at all on the question 
at issue, as wq are fully satisfied that the proof adduced is 
quite adequate to support the alleged custom. Nor have 
we for a similar reason taken into aooount the equally well 
established e«ttom {Bug v. Uad Ali Shah (')), that a non-proprie- 
tor in Jullundnr cannot sell his house without consent of the 
owner of the site -^ a usage which may have matorially assisted 
in monlding the castom set up by plaintiff. It is however 
neosseary to note that not a single instance was quoted for 
the appellant to the contrary, and the two unreported jadgments 
of this Court in Civil Appeal No. 472 of 1904, decided on 
29th April 1904, and C. A. No. 751 of 1905, decided on 20th 

0) 16 P. a, 1303. (•) 33 P. B., 1SS5. 

0)75P.IM897. 



APFULITI SiDB. 



42 OITIL JUDaMANT8^Na'&. t 

January 1906» rof errod to by ooansel for appellant were found 
on examinatioQ to be entirely inapplicable. We therefore 
have no hesitation in oononrriDg with the lower Courts that 
plaintiff has suoceeded in proving that by reason of ownership 
of the site he . is entitled by custom to pre-empt the property 
in dispute. We accordingly dismiss the appeal with costs. 

Appeal dismisied. 

No- a 

Before Mr, Justice Lai Chand. 

SIBAJ-DD-DIN AND ANOTBER, --(Plaiotipfs),— 

APPELLANTS, 

Versus 

MUHAMMAI) FABDK AND AN0THER,->(DBrEHDAHT8),~ 

RESPONDENTS. 

Civil Appeal No. 749 of 1906. 

Owtom^lnheritance^Bight of grandson whose father hoe pre^deeeaeed 
the grandfather in the estate of the latter — Muhammadan Kashtnirie ofBanga, 
Tahflil Natoashahr, JuUundur District, 

In a sait the parties to which were Mohammadan Kashmiris of Banga^ 
TahsU Nawashahr, JaUundar Distriot, found, that in matters of inheritance 
they were goyeraed b/ castom and not by Muhammadan Law, and that 
among them the son of a predeceased son was entitled to snoceed to his 
grandfather's ost-ite by right of representation. 

Maula Bakhsh y. Uuhammad BaJihsh (^), Lai Din y. Mussamtnat 
Jainan (*), and Fain Taldb y. Karm Khan (*} referred to, ' 

Further appeal from the decree of J. Q, if. Bennie^ Esquire^ 
Divisional Judge, JuUuniur Division, dated llth October 
1906. 

.Muhammad Taj-ud-dioi for appellants. 

The judgment of the learned Judge was as follows : — 

6th August 1906. ^^ Chaiid, J. — The parties in this case are Muhammadan 

Kashmiris of Banga, a small town in Nawashahr Tahsil, District 
JuUundur. They own no land and are not agriculturists in any 
sense of the term. The property in dispute is one-half share of a 
house which belonged to Pir Muhammad, grandfather of defendants, 
and father of plaintifiE No. 1 by a second wife who is plaiutifE No. 2 
in the case. The defendant'^ father, Imam Din, died during the 
life-time of Pir Muhammad, who died about three years prior 
to the institution of the present claim. The plaintiffs claim the 

(') 54 P. H.. 1906. (•) 114 r. B., 1893, 

C») 80 P. B., 1882. 



Jamt. 1907. ] OIVIL JUDGMBNTB-No. a 43 



whole bouBO on the gronnd that uoder Muhamroadan Iaw the 
defeodaDts are excloded from inheritance, their father imam Din 
havinjj predeceased his father, Pir Mohammad. The family traoea 
its traditional home to Kashmir valley, but the period of settlement 
in Banga is not known as the oldest member of the family aged 
eighty years is unable to give the name of Pir Muhammad s 
grandfather. 

The sole question for decision under the circumstance is 
whether the defendants artf entitled to succeed to Pir Muhammad 
by custom or are excluded from succession by Mnhammadan 
Law, their father having predeceased his father whose property 
is new in dispute. The lower Courts have held that daughters 
are excluded from succession in the family which indicates that 
Muhammadan Law is not followed in matters of succession, and 
that the defendants are therefore not excluded from inheritance. 
The lower Courts have accordingly dismissed plaintiff's suit. 
In appeal it is contended that daughters are not excluded from 
inheritance m this family, that even if they are excluded it 
does not follow that the provisions of Muhammadan Law 
against uuocession by representation as claimed by the defen- 
dants are inappHcable, and that it is proved by two judicial deci- 
sions and certain oral evidence of witnesses from Ludhiana where 
the parties' family has marriage connections that Muhammadan 
Law is followed by Kashmiris in matters of inheritance. The 
pleader for appellant relied on Maula Bakhsh v. Muhammad 
Bakhsh (*) and the judgments referred to therein to suppor his 
contention. 

As regards the two judicial decisions by Ludhiana Courts 
the judgment of the District Judge related to i>roceediDgB 
taken for appointment of a guardian of a minor and the second 
case decided by a Munsif involved a dispute relating to in- 
heritance. In neither of these cases was there any enquiry 
or finding on the particular point at issue in this suit. Li 
the first case the question of guardianship was decided 
in accordance with Muhammadan Law with an obiter as to its 
applicability to matters of inheritance. In the second case the 
provisions of Muhammadan Law were applied by admission of 
parties to a dispute between a widow and a co-widow and 
her sons. These precedents are apparently of no value for de- 
ciding the issue involved in the present case. The oral evidence 
of two witnesses produced from Ludhiana does not carry the 

(*) 64 P. B., 1906. 



li 



^ OlVIli JUMHRKTS^No. 8. C »mhu>. 



plaintiff's oase any further. Thej have atated gQserallj that T ^ ah - 
miris are goTeroed by MDhammadan Law, but cite no instafice to 
support tbeir assertion. Tbey further admit that they do not 
belong to the plaintiff's got^ and acknowledge their complete 
ignorance of all matters relating to tbe family of the 
paities. 

On the other hand, plaintiffs* own agent, a descendant of 
Pir Muhammad's father, and Muhammad Jamal's daughter, 
whose family originally belonged to Ludhiana but has mig- 
rated to Banga since many years, distinctly admitted whto 
examined that daughters of JamaKB family have never received 
a share in inheritance. Be named several dangbtet« among 
descendants of Muhammad Jamal, butr was unable to ftate that 
any ever succeeded to a share under Mnhammtt^hAi Law. 
Moreover, Karim Bakhsh, a direct descendant of Earm, teothef 
of Muhammad Jamal, was examined as a witness for d^ndanie, 
and deposed that provisions of Muhammadan Law wei^ 
not followed by the family in matters of inheritance. 

He is aged eighty years, and has referred taan inatance 
in his own branch of the family where the eon of a pre-decaased 
son inherited equally with his uncle, witness's own father, and ho 
further gave another instance to the same effect in Moum SarjAl 
among Muhammadan Kashmiris. He oonCrmed the statement 
made by plaintiffs' agent that daughteia have never inheritedin 
Muhammad Jamal's family, and supported his aUepvtioD fa^ 
quoting several instances giving particulars in each case. 

It is thus daer and beyond all doubt that daughters 
are excluded from receiving a share, and that at last in two 
instances the sons of pre-deceased sous have succeeded by 
right of representation contrary to the provisions of the Mu- 
hiammadan Law. The plaintiffs tried to discredit Karim'a 
evidence by prodttcing one Dbllan who started by alleging 
that he was the elder; brotheir of Karim— a statement at onoe 
falsified by comparing their ages, but he was obliged to admit in 
cross^xamination that he was a ptcAWa^r son of Karim 's father 
by a Rajput wife. As regards succession of daughters the 
witnesses stated that they receive their right whatever it be 
at marriage and by presents subsequent to marriage. The 
attempt to discredit Karim's evidence has thus failed completely. 
It is unnecessary to discuss at any length the authorities 
relied upon by the pleader for appoUanta* Maula Baikihy. 



lAKZ«a90.3 QIVIL JJQMMBNTllM..$. 4^ 

llnhammad Bmihih (')» is so far relevant that Maliaminadaa 
Easbniiris of Lahore city were held to folio ir MDhammadaa 
Law in matters relating to saccession of daughters. 

On the other hand, in Lai Din v. Mussammat Jainan (^)y 
which is referred to in Maula Bakl.sh y. Muhammad Bakhsh (^), 
it was established after local enqairy that Mahammadan 
Kashmiris of Sialkot city followed costom and not Mahammadan 
Law in matters relating to succession of widows. Each case 
most depend for its decision primarily on its own proof, and 
the necessity for looking elsewhere ^for help and guidance 
would arise if there bo dearth or absence of reliable materials 
on th^ Tteord. In the present case I see no reason to discredit 
the evidence of Earim^an aged member of the family who 
alone, truly speaking, is in a position) to give direct evidence 
on the question at issue. His evidence clearly proves that 
the provisions olMnhammadan Law ate not followed in matters 
of inheritance, and he quotes two instances ei^actly in point 
on a matter which so far as I know is not very unusual or 
exceptional. It is true that the instances quoted in this case 
are few in number, but the question of succession by repre- 
sentation on account of the death of a pre-deceased son is but of 
tnte oceurrenee. 

Moreover, it was admitted in argument that there are only 
{ear families oi Kashmiris in Banga, and it is not easy to 
imagino that the defendants could be able to discover many 
instanoee in- a master of sudi rare occur renoo. This is at 
once oo i' t obtor l it^fd. and rendered apparent by the plaintiffs* 
own omission to produce even a single instance to the contrary. 
la Fait Talab Y. Kaim Khan (*), a case of Pathan zamindars 
€i kMck.Tkhtil, ^e custom set up by dtfeiidants in this 
case was h^ld tobe a very general custom among litxham- 
madan agriculturists in this Province^ 

The family concerned in this case is not agriculturist, but 
their ancestors though original inhabitants of Kashmir valley 
have settled among agriculturists from time immemorial as 
Earim Bikhsh, the oldest and eldest member of the family 
has deposed that members of his brotherhood live in village 
Sakyal wiiere int6rsaarriages take place with them. It is 



(0 5i P. Jl^ 1906. (•) lUB. Jlo 1898^ 



46 OIVIL JDDGMBNTS-No. 9. [ Bmob0 

therefore neither strange nor abnormal that the family has 
adopted a castom foand to be very general among Maham- 
madan agricnltarists of the provioce even assuming which is 
problematical that their Kashmerian ancestors followed Mn- 
hammadan Law in exclading from inheritance the sons of a 
pre-deceased son. I therefore hold that the alleged custom 
is proved to apply and that the defendants are not ezcladed 
by Mnhammadan Law from retaining the share in dispate by 
right of representation as their father's share who pre-deceased 
his father. The appeal is accordingly dismissed with 
costs. 

Appeal cUsmiued. 



Appsllati Sidb. 



No. 9. 

Before Mr. Justice Battigan. 
I NIHAL CHAND,-(Plaintiff),— APPELLANT, 

Versus 

ALI BAKHSH AND OTHERS,— (Dbfbni) ants), 

RESPONDRNTS. 

Civil Appeal No. 168 of 1906. 

ABiignment — Conditional assignment hy way of security ^Bighi of asm 
stgnee to sue in his own name. 

Where the payee of a promissory note, not negotiable, assigned it 
to the plaintiff as a seonrity for a debt owing from him to the latter 
until its repayment in foil, held that it being merely a conditional as- 
signment thn plaintiff was not entitled to maintain an action in his own 
name alone agMost the maker of the promissory note for the recovery of 
amonnt dne thereunder. 

Durham Brothers v. Aohertson (^) followed. 

Further appeal from the decree of A. E. Hurry , Esquite^ Ditfi* 
sional Judge, Amritear Division^ dated lith November 1904. 

Ishwar Das and Sohan Lai, for appellant. 
Beech ey, for respondents. 

The judgment of the learnod Jadge was as follows : — 

Srd August 1906. Ratiigan, J. — The facts of the case are fully stated in the 

judgment of the first Court and need not be repeated. The 
case, briefly stated, is that plaintiff, Nihal Chand, sues on the 
basis of a pro-note executed by Ali Bakhsh, defendant No. 1, 
in favour of Nathe Khan, and mortgaged by the latter to plain- 
tifE by three deeds of mortgage. 

' (4 L,B.U(i,B.CU»S),76S. 



tAHt. 190?. ] cmt JX7DGH BNtS -Ito. 0. ^ 



The translaiion of the pro-note as given bj the first Oonrt 
and admitted to be]correct, is as follows :— 

" I am indebted to Nathe Khan, son of Kamman Khan, in 
''Be. 1,700, half of which is Bs. 850. To be paid on demand. 
" Hence this promissory note, 13th October IQOO.** 

'* (Signed) Ali Bakhsh, Lamhardar." 
Nathe Khan, aooording to plaintiff, mortgaged this pro-note 
with him for Bs. 750, at Bs. 2 per cent, per mensem interest, 
by three deeds of mortgage, (1) one of 10th September 1901 
for Bs. 500 ; (2) a seoond of 30th September 1901 for Bs. 100 ; 
and (3) a third of 19th April 1902 for Bs. 150. According to 
the terms of these mori^age deeds, the pro-note was to remain 
in the possession of plaintiff who was to have the right of 
realising the amount from the drawer by suit or otherwise, it 
being farther stipolated that Nathe Khan shoold have no right 
to transfer the pro-note to any one ehe or to bring any soit 
npon it, or to enter into any agreement with respect to it with 
the drawer. 

The first Oonrt granted a decree in fall to plaintiff, bat 
npon the drawer's appeal, the Divisional Judge, without discuss- 
ing the merits of the case, dismissed plaintiff's suit on the 
ground that the pro-note, as worded, was payable to Nathe 
Elhan only and was, therefore, not a negotiable instrument as 
defined in Section 13 of Act XXVI of 1881, and that the rights 
of Nathe Khan thereunder could not be tran3f erred to plaintiff, 
who had thus no loeui standi. Plaintiff has preferred a further 
appeal to this Oourt, and on his behalf Mr. Ishwar Das con- 
tends that, thoagh the pro-note is not a negotiable instrument 
as defined in the Act relating to such instruments, the subject 
matter of the mortgages was an actionable daim, that as such 
it oonld be assigned, and in point of fact was actually assigned 
to plaintiff in such a manner as to enable him to sue in respect 
of it as effectually as the assignor himself could have sued. 

For the respondent, Mr. Beechey did not seriously attempt 
to sapport the ground upon which the suit had been dismiss ad 
by the lower Appellate Oourt ; his main, if not indeed his 
sole, ooutention was that there had been no complete and 
absolute assignment of the actionable claim, but merely a 
charge (or chaises) created in respect of it. He further urged 
that if in such cases every mortgagee of the debt was competent 
to sue in respect of the claim upon which he had been given 
a charge, the original debtor might be subjected to innu merab 







suits at the instances of all SDoh persons as had been ^en 
snch charges. The learned counsel in support of his arguments 
referred to Section 25 (6) of the Englieh Judicature Act, 1873| 
B,iid to Durham Brothert y. Robertson (^). In the case before 
me there are, as I have pointed out, three separate and distinct 
mortgage deedcr doaUng with this '' actionable claim''. These 
deeds are all in favour of one and the same person, and sxoept 
as regards the amounts of the mortgage debts, they, are in 
ezaotly similar terms. These terms run as follows :-^ 

^* Manke Nai^e Khan, wald Kammi Khan,'kaiim EUifpat, 
<^ sakin mauca Qfaarkian, Tahsil BatoU ka hnn. 

** Jo kcek'kita promissory note tadadi xukam rupees 1,700, 
^mawarrikha 13 th October 1900, namshta masamma hbshv AH 
* Bakbsb, Lambaidar, patti Faizpuv, mashmula Batala, muqarrar 
*^ ka^yoftni aur milk^at-i^noshir hai, is lie raqam-i*promi8Bory 
^ Doie-i-maEkur yani rupees 1,700 ko bamuqabla mablaghpansad 
*^pas LaUk Nihal Ohand, wald IialarQaad M%1 Shah, kaum 'Agaa> 
" wal, sakin B&tala, ke rahn ba kabza kar ke promissorynate 
" hawaia Lala mazkur ke kar diya hai aur zarn-rahn badiu'tafsil 
'' babat karza sabika murtahin se wasul pa lie hainanr and zar-i- 
" rahn bala ka mablagh do rupae fi sadi mahwari dena muqarrar 
'' ka^ liya hai pas iqrar karta bun aur tahrir kar deta ban ke 
"raqam rupees 1,700 mandarja promissory note ke wasul kame 
'' ka bataur-i-khud ya basariya naHsh ke murtahin mazkur ko 
*' akhtiyar hai bad wasul kame raqam mandatja sadar ke mur- 
'* tabic mazkur ko awal mablagh zar->i-rahn asl wa sud jts kadar 
** us waqat takr wajib-ul-ada ho wasul kame ka akhtiyar hoga 
<* aur jis kadar kharch muqadma par babat irja-i-nalish ke kharch 
^' hoga woh bhi murtahin is raqam se wasul kanie ka haq rakhta 
'^ hai jis kadaz bad mujrai asal zar-i-rahn wa sud kharcha 
" waghaira ke baqi bachega woh mera haq hoga. Mainbataur 
«< khud murtahin se Innga jab tak ke kul zar-i-rahn wa sud wa 
** kharcha waghaira murtahin ko wasul na hojawe kul raqam 
*' promissory note rupees 1,700 par murtahin kabiz rahega. Muj 
*' ko bidun us ki rai ke intqal kame ya lene ya nalish kame fak aj 
''se koi akhtiyar na hoga. Sirf murtahin se mutabaqa raqam 
''lene ka haq hai, aur jab murtahia*i-mazkur nalish kare muj 
" ko dauran-i-muqadma men masalihat kame ya razi nama ya 
" kisi aur tasflya kame ka koi haq nahin hai, agar koi tanaza 
" babat raqam promissory note ya minjumla raqam-i^mazkur ke 
" paida ho uski jawab dahi mere zimme hai murtahin ka koi 

(») li.B..lQ.B. 11898), 766. 



'' waata nahin hoga^ aar iaiir(|ibiii ko a^l zar-i-ra^n . 4^iir fiad 
" aur jo kbarolta vvaghaira hq m^ie %ar meri digar jai^i^d m^i^qala 
" wa ghi^r loaoqala ae Uar w#qat w^pis waaal karue ka akhtiyar 
*• bai. Mukwrar jih k« ii(nirtAl4i^-i.|aapkar ko habat raqam-i- 
^* promiflaary ^aH nwl^QiQii madcar ke palish karoo ka misal 
" pov^j^kh^ijdur bai ke M rfi«Ma ciui^edi J^7Q0 jwandftrja . promis- 
^ agry QOfe id p^linh kacke wftanl Wl^V^* Lihaia in oband 
^haraf baiaur rahanama baqab^^ I^QUkh dQt^.hQtQ,keT8amd 
•* howo.** 

Snob Oyssk are fcbe tmwt of M^ c^giom^tmbi imder oontider- 
•liop, and tike qneaiion ia wJiolb^r Aoi^ir tbwe («r«|8 tb«ce baft 
becii^ anoban iMaigamepi of tbepaorDato^ ^ of thfO Msk Qf vbMb 
ikat pixvaate ia tbe eTMeBoe^as mould , /arable Uffi, „«nigAeQ> .,to 
■•• in U» #wn name for tiie Monpary jaf ibet^obi ? 

Aa abore i:emarked9 tbe pro-note ia olearly not a negottabte 
inatnunent, bat tbe learoed Divisional Jadge waa not on that 
gronnd alone justified in dismissing the assignee's snit A debt 
or otber legal cho$e in action isjusigoable in tbis oonnjbry no lesa 
than in Inland,] and tbe general prin^ipl^ of law on tbe 
8Ab jiaot ol ancb assignment are to be foAnd in Obapter VIII 
of tbe Ti:an8f9i: o( Poppei:ty AvOt, V8SI2, as amended by Aot Q 
of 1900. Tbe Tr^jrfer Qf Pr^i^y Act is noii in terms io foroe 
in tbe Punjab, but tbe law on the subject qnder qonsidaration in 
force, in tbja ?]^yi;ioe i8»«2'^aX^n^ ^en^r^.V, to ^be same effect 
aa tbat contained^ in', 4bat phapt0r (nee Jhoki Jtam v. Malik 
kadtr Bqkhsh (^). As md down ip SeCtiqp 130 (^) of tbat Ao^, 
** tbe transferee of an actionable clain^ may, upon tbe ezecutiop 
** of S|iob instrument of transfer a^ aFoi;emid, sue or institute 
** proceedings for the same in hU own oame without obtaining 
*' the transferer's consent to snob suit or grooeedings and without 
'* making bim a party thei*etQ.'' Olearly, then, if there has been 
m good apd effectual aasignmeut or tra.nsftir of the debt, the 
aaBJign^ oritcansfer^e is coinpetent to sue in his own ni^mo for 
ita recovery, and none the less so because tbe pro-note does not 
fidl #itMn the definition 6i ^ negotitMe iniitrsmenl^ " aa given 
in Section 14 of Act XKVl of MSI {Bte Kunhavga Lmkr. 
Ji0mimi^ (,*)• Hr* Be^ey <lid.xu>t, a^ 1 qinderstand. dinpute 
thia ; bui49le oont^ioniqjBuppor^Qf tb^ 49G5C9eiJiQdQr i^ppoal waa 
thai tbe flo-ca^ed aasigomont was not *' ^b^olnte " but by " w^^y 
ofeb^rge only", and,aaBUQb did, AatentiUe tb^ i^gnee to aue 



(1) U P. R. Ifftl (•),/. £. R, I'AU., W. 



50 



OITIL JtJDGMINTa-No. •. [ 



in his own name and withoat making the assii^nor a party. 
Upon this oonfcention two diffionlt qneations arise. ^rMy^ mm 
the '^ assignment " an " absolate assignment " vrithin the meaning 
of Section 26 (6) of the Jadioatnre Aot of 1873 or was it oondi- 
tional or merely by way of charge P And, secondly, if it was not 
an absolate assignment but was conditional or " by way of charge 
only*', is the assignee thereby debarred from sning in his own 
name for recovery of the debt P 

Mr. Beeohey farther contended that the three mortgages in 
favour of plaintiff oonstitnte three separate and distinct assign- 
ments of the debt, and that each mortgage must, therefore, be 
regarded as an assignment of part only of the debt, and as snoh 
does not amonnt to snoh an assignment as wonld give the 
assignee the right to sue, Durham Brothen v. Robert$<m^ ubi 
supra ; Hughe$ v. Pump House Hotel Ooy* (^). In my opinion 
this is not the proper constrnction to pat upon the transactions 
between the mortgagor and mortgagee. There was in point of 
fact bat one assignment and this was effected by the first 
mortgage deed, under the terms of which the mortgagor assigned 
the entire debt (vi9., Rs. 1,700) to the assignee and expressly 
agreed to make no farther assignment or^alienation of that debt. 
But under the terms of the said mortgage deed,i^the mortgagee 
when be recovered the amount of the debt from the debtor, was 
entitled to pay himself thereout only the principal and interest 
due under thai deed. When, however, subsequent advanoee 
were made to the mortgagor, this part of the agreement between 
the parties was so far modified that the mortgagee was given 
the further right to retain from the monies recovered by him 
such an amount as would cover the principal and interest due 
not only under the first but also under the subsequent mortgages. 
But this is/1 think, perfectly consistent with the theory that by 
the first mortgage deed the whole debt, and not merely a part 
of it, was assigned to the mortgagee. In terms, it certainly was, 
and I think that such was obviously the intention of the parties. 

To revert now to the question whether the assignment was 
absolate or " by way of charge only'*. 

There is^ and caa be, no question that an assignment may 
be " absolute *' though by way of mortgage (see Buflinton v. 
Hall (•), TtinGTdd v. Delagoi Bay and E, Africa Railway Ooy.^ (•), 
Hughes v. Pump House Hotel Ooy., ubi supra^ per Oosens 

(») L. B., 2. K. B. (1902), 195. (•} 68 L. /, Q, B., 282. 

(•) £.a,aSQ.B.D.,289. 



lun. 1»or. OIYIL JUDOHaNTS-ll*. ». 



61 



Hardy, L. J.) And if on the constmotion of the doonment, 
it appears to be an absolute aaaigDinent, though 8uhj§et to an 
equity cf redempti(m^ Mprea or implied ^ it cannot be material to 
consider wLat was the consideration for the assignment or 
whether ihe secnrity was for a fixed and definite sam or for a 
oarrent aecoant. In either case the debtor can safely pay the 
assignee and he is not concerned to inquire into the state of 
accounts between the assignor and the assignee (per Ooaens 
Hardy, L. J.) in Bughet v. Pump House Hotel Coy.j uBii§upra. 

But the assignment must be absolute in orderuto be effectual 
for the purposes of Section 26 (6) of the English^ Jadicatnre 
Act; and a conditional assignment — that is an assignment 
until the happening of an uncertain event*-- is not within that 
section. I'hus an assignment of the aissignor's interest in a 
certain sum due from a third party until certain advances made 
hy ike ossign^e to the assignor had been paid off with interest^ is 
a '* conditional assignment'* and doee not come within the 
purview of Section 26 (6) of the Jadicatnre Act. {Durham 
Brothers v. Bohertson). In this case Chitty, L. J., remarked : 
** The repayment of the money advanced is an uncertain event 
** and makes the assignment conditional. When the Act applies, 
** it does not leave the original debtor in uncertainty as to the 
" person to whom the legal right is transferred ; it does not 
'* involve him in any question as to the state of accounts between 
*' the mortgagor and the mortgagee. ^<^ The Jegal right is 
" transferred, and is vested in the assignee. There is no 
** machinery provided bj the Act for the reverter of the legal 
** right to the assignor dependent upon the performance 
'^ of a condition ; the only method within f the provision 
"of the Act for reverting in the assignor the legal right j is by 
*' a retransfer to the assignor followed by a notice in writing to 
"the debtor, as in the case of the first transfer of the right. 
*^ The question is not one of mere technicality or of form ; it 
** is one of sabstance, relating to the protection of the original 
'* debtor and placing him in an assured position ". 

In the mortgage deeds before'me the provisions, with one 
important exception, are such that the assignment might)well be 
held to be " absolute '* ; bat this exception is fatal to any such 
eonstruotion. The^words I refer to are these : " Jahtah ear^-rahn 
*^wa sud wa hharehu waghaira murtahim ho wasul na^fiojawe ku 
" raqam promiesory note fupees 1,700 par murtdhin fceMs rahega ; 
fffiiij^ njy bidStn us hi rai ke intiqid home ya Uiie ya nalish karne 
** jka qfie ksi (kkHy^ na koga ". This daase deady is on all 



l^f 0I7IL JU»a9flNT«— No. f. [ Ekow) 

fours witbrthat which the ooart of appaal in the ctse UkI oiled 
held to oonatitate :\ mepelj ooaditioaal aasi^nmeot, for here, 
aa there^ the assignment is to ooutinue 0QI7 uttiil all monies due 
to the aaa^snee remain anpaid. Followiug thai authority, 1 
hold, therefore, that the assigmQeot in this oase was not aneh as 
would in EqgUnd entiUe the assiguee to rely upon Section 25 (6) 
of the Judicature Act as enabling him to sue in his own 
name lor the recovery of the debt. The ne^ question is whether 
an ass\gui9eQt by w^y of obtrge or a Qouo^ditioual assignment 
should in this Province be regarded as giving the assignee the 
right to sue io hi^ own name P I do not think it nhoald. 
As pointed ont by Jostice Ohitty, the difiPerenoe between 
an absolute assignment and a conditional assignment is 
not a mere technicality ; it is one which most materially 
affects the position of the debtor. When an absolute 
assignment is made, the debtor receives notice of the assignment 
and he is entitled and honnd thereafter to regard the assignee 
as the sole person to whom the debt ia payable. And he is 
entitled* to take up his position until he receives notice that the 
debt has been reoonveyed to the assii^nor. But if the assignment 
is to last only nntil such time as the money due to the assignee 
from the assignor is not paid, and is to terminate tpie facto 
npon payment of snch money, the debtor in order to protect 
himself would necessarily from time to time have 'to examine the 
accounts between the assignor and the assignee. This would be 
a most irksome burden to put npon the debtor, and I do not think 
that we should be justified in imposing it on him. The rule as laid 
down in the 25th Section of the Judicature Act appearF, if 1 may 
say so, to aecord with convenience and with equiiy, and if in the 
Province where there is no express statute law on the subject, €be 
assignment of a debt is to be recognised as conferring npon 
the assignor the rig)it to sue in his own name for recovery 
thereof, the courts should, I think, in fairness to tbe debtor, 
insist that the assignment in question be absolute and not merely 
conditional. Before the enactment of tbe Judicature Act, a 
s&ost in aeHon was not assignable at law, and '* in equity the 
'* assignee of a dsbt> even when the assignment was absolute 
'' on the face of it, had to make his assignor, the original 
^' creditor, party in order primarily to bind him and prevent 
^*hts suing at Uw, aod also to aUo?r him tadispite the as- 
^ signment if he thought fit'* (Ohitty, Tj. J., nbi supr a), Ther« 
is thus no equitaUe reason why an assignee should be permitted 
to sue the debtor in his own name for the recovery of the 
ctohty aad if we ar» to rsoogdfe, M I thwh we^shoAld; tbe 



ilVT. 1907. ] OIVIL JUD6MBNT8— No. 9. 53 

rale in the Jndicatare Aot by which assignees were given 
rights which they did not preyioasly possess either at law 
or in equity, we should, in my opinion, adopt that mle in 
lis entirety, espeoially in a matter which is of snch vital 
ooncem to the debtor. The rale is one in consonance with 
jastioe,. equity and g^ood conscience ; and it shoald therefore 
be followed ; bat if it is to be applied, it should be strictly 
applied, for it is only by sach strict application that the 
inteiests of all parties can be effectively safe*gaarded. In 
Shephard and Brown's Commentary on the Transfer of Property 
Act (5th edition, page 438) it is said that '' a charge which 
** is exclnded under that Act (i.e., the Judicature Act) must 
*' apparently be regarded as a transfer within the meaning of 
^ the present chapter." However this may be, so far as 
Chapter YIII of the Transfer of Property Act is concerned, 
I, not being bound by the provisions of that Act, do not feel 
justified in regarding a charge or a oonditional assignment 
as such an assignment as gives the assignee all the rights 
which under the Judicature Act he can have only when the 
assignment is of an absolute character, that is when it 
absolutely vests the property in him. Neither the Judicature 
Act nor the Transfer of Property Act is in terms in force 
in this Province, and I am, therefore, at liberty to adopt such 
provisions of the one or the other as appear to mo to be 
consonant with the general principles of law and equity, and 
in this particular I have no hesitation in accepting for my 
guidance the mle enunciated in the English statute. 

I hold, therefore! that the assignment of the debt to 
plaintiff was merely oonditional, and that he is in consequence 
not entitled to sue for reoovery of the debt in his own name. 
I must accordingly dismiss the appeal with costs, as 
pUintifPs suit was rightly dismissed as against Ali 
Bakhsh. 



AppecU dismissed. 



m* 



^4 CIlVtL JDOQMENTB-Ko. 10. Bkxad 



No. 10. 

Before Mr. Ju$tice Lai Chand. 

8UNDAR LAL AND OTHERS,— (PLAiimFFg),— APPELLANTS, 

APPILLATI SlDB. < V9r8U8 

\ RAM SINQH,-(DiFiNOAHT),— RESPONDENT. 

Civil Appeal No. 158 of 1905. 

Punjah Alienation of Land Act, IdOO—Ejfoct of, on »uit$for posMuion of 
land ^rchased before that Act came into force. 

Held, that the provitious of the Pan jab Alianation of Land Act do not 
apply to a Boit of a vendee for the possession of land, where the property 
was conveyed by defendaut to him and the right to claim possessioo had 
aoomed long before that Act came into operation. 

Ram Nath v. KeroH Mai (») and Nathu Ldl v. Jafar (•) referred to. 
Further appeal from the decree of Qazi Muhammad Aslant, Vivi^ 
iional Judge, Fcrozepore Dtvi$ion, dated Ibth July 19C4. 

Dani Chand, for appellants. 

Dorga Das, for respondent. 

The jadgment of the learned Judge was as follows :— 

•20/^ June 1906. ^^^ Chand, J. —The facts of this case are given in full in the 

jadgment of the lower Appellate Goort. The only question in 
appeal is whether the lower Appellate Court has rightly dismiss- 
ed plaintifPs' suit on the ground that the claim for sale of Ian 
bj defendant to plaintiffs is contrary to the provisions of the 
Punjab Land Alienation Act and therefore not maintainable. 
I am unable to agree with the view taken by the lower Ap- 
pellate Coort. It is found oorreotly that the sale transaction waa 
completed on 31st May 1899, i. e., more than two years prior 
to the passing of the Land Alienation Act, But the lower Ap- 
pellate Court has held the Act applicable because *' the making 
" of the deficiency was to be completed in case of certain 
"contingencies occurring, and it is only now the plaintiffs 
" have acquired a right to claim the land promised to them. " 

There is nothing on the record to support the view that the 
contingencies requiring the deficiency to be made up occnrredd 
after the passing of the Land Alienation Act. The sale-deed and 
the contempcraneonn registered agreement did not fix any time 
for delivering possession b^ the vendor to the vendee and in 

(>) 88 P. B., 1904. r*) 20 f* B., 1906. 



FiBT. 1907. ] CnriL JUDGMBNTS— No. 11. 55 

the absenoe of any speoial stipnlatioQ as to time entered in the 
agreement it would be fair to presume that it was intended to 
deliver possession within reasonable time. I cannot hold that 
two years wonld at all be a reasonable period for fulfilling the 
agreement. The right to claim the land in dispute had therefore 
aooroed to the plaintiffs before the Land Alienation Act came 
into force and the subsequent passing of the Aot could not de- 
prive plaintiffs of their vested rights under the pale-deed which 
is found to have been completed on Slst May 1899. Similar 
view was taken of sales by foreclosure in* Bam Naih v. Kerori 
MaU (>) and Nathu Lai v. Jafar (^), and it appears to me 
to be the correct view. Moreover, I am inclined to hold that 
the purchase of the area sued for was completed on Slst May 
1899 when the deeds were executed and registered and that the 
present claim is not for specific performance of an agreement 
but to enforce a sale already complete. This view is supported 
by the fact that 78 bighas were actually sold and what was 
agreed upon was to make up the deficiency in the manner agreed 
upon in case possession was not delivered of the wkole area 
alienated by s^K There is therefore no reason for holding that 
the suit really involves a sale by defendant to plaintiff of land 
sued for. 

For these reasons I accept the appeal, set aside the order of 
dismissal and return the case to the lower Appellate Court for 
deciding the defendant's appeal. Stamp fee will be refunded 
and other costs will be costs in the case. 

Appeal allowed. 



No. 11 

Before Mr. Justice Lai Chand. 

' SHBR SINGH AND 0THBRS,-.(PuiNTirF8),— 
APPELLANTS, 

Versui ^Appiillats Siqb. 

SroHU AND OTHERS,— (Dotmdants),— 
RESPONDENTS. 

Civil Appeal No. 208 of 1904. 

Alienation of reversionary rights—Power of a reversionerout of posses* 
siontoaeeign his interest after devolution of inheritance-^Right of aseignee 
tosnefor possession, 

H^d that a reyersiooer out of possession of a ohidless male proprietor 
can timnafer his iotereata to a stranger after devolation of inheritanoe 



(0 W i*. «.. 1904. (•) 20 P. B., 1905, 



58 0£VIL JUDQMBNTS-No. 11. [ tM0$%9 

and the assignee is entitled to reoover posseenon of the property and con- 
test the validity of the title of the person in possession snbjeot to the 
same rales which coold have been enforced by the assignor. 

Jhohi Ram y. Malik Kadir Bakhshi^), Achal Ram v. Ka%im Huiain 
irfcan(>)i Totay. AhduUa Khan{»\ and MotUadad y. Ram Qopal (*)* 
referred to. 

Further appeal from the decree of 0. L. Dundat, Esquire, Dtvieum* 
al Judge, Hoshiarpur Divteion, dated lOth Auguet 1903. 

Sakh Dial, for appellants. 

Ohani Lai and Gaaga Ram, for reapondents. 

The judgment of the learned Jadge wan as follows : 
9th July 1906 Lal Ohand, J.--The faoU of this case are given in full in 

the jndgments of the lower Goorts and need not be reoapitnlated. 
Briefly the sait is for pos^^ession of 17 kanalt origfinallj owned 
bj one Bam Singh, who transferred the whole of his property to 
defendants by a deed of gift, dated 2nd January 1886. Ma- 
tations followed, bat apparently the donees did not at onoe 
obtain actual possession of any portion of the property oonveyed 
by gift, as Bam Singh retained possession of 17 k\nal$ now in 
dispute and the remaining land was held in possession by a 
previous mortgagee. Bam Singh died in 1891 when defen- 
dants took possession oH7 kanals now in dispute. He left oertain 
collateral heirs, I) hern and others, who on 4th January 1S94 
sold his estate to Rai Devi Singh, plaintiff-appelUqt. Devi Singh, 
having redeemed the previoas mortgage from GK>pal, has now in 
conjunction with Dheru and others, the collaterals of Bam Singh, 
sued for po8«)e8ston of 17 kanaU held by defendants. The first 
Court foond against the gift and held that Dhera and others, 
the collaterals of Bam Singh, were entitled to a decree against 
defendants, but inasmuch as Devi Singh was the representa- 
tive of the heirs of Bam Singh by his sale and they could after 
obtaining possession by decree put Devi Singh in possession, 
Devi Singh was entitled to obtain a decree for possession. A 
decree for possession was accordingly passed in Devi Singh*8 
favour. This decree was set aside on appeal by the Divisional 
Judge. In further appeal to this Oourt on the qaestion of bar by 
limitation the names of Dhern, &o., were removed from the 
record on their own application and the case was remanded. The 
Divisional Jndge on remand has now dismissed the claim 
on the ground that Devi Singh being left sole plaintiff 
on ihe record has no locus standi to contest the validity of the 



(1) 12 P. R^ 1894. (•) 69 P. &. 1897. 

{•) 1. 1. B., XXm Att., 271, P. 0, (•) Sf P. B^ 1900, 



gift ID defendantB* favoar being himself a straBger to the 
&mily. In enpport of his view the DiTiRional Judge has princi- 
pally relied on certain dftc^a in Moulddad v. Ram Qopal ('). It is 
omteoded for the vendee appellant that the sale was not of an 
expectancy bnt of land which by inheritance had at the time 
become vested in the vendors though possession was held by 
defendants, and farther that in any case a decree having already 
been passed in bis favour with ooosent of Ram Singh's heirs, 
who were competent to challenge the gift and joined as 
plaintifiFs, the decree so passed could not be set aside on account 
of their subsequent withdrawal from the suit. 

For the respondents it is contended that the oollateral heirs 
who never obtain<)d possession were in the same position as 
reversioners dnring the life-time of a widow and that DoTi 
Singb^ vendee could not obtain a decree for pos()ei^sion without 
challenging the gift which he was not competent to do being a 
staranger to the family. Certain (passages in Tota v. Ahdulla 
Khan (*) and Mouladad v. Ham Oopal (^) were relied upon in 
support of this contention. 

For appellant reliance was placed on Jhoki Ram v. Malik 
Kadir Bakhsh (*) and Achal Ram v. Katim Husain Khan (*), for 
contending that plaintiff-appellant as an assignee of a chose 
in action was competent to claim possession. The qaestion 
raised is not entirely free from difficulty. If the powers of a 
childless proprietor to alienate ancestral property without 
necessity were absolutely limited as those of a widow there 
would be very little difficulty in coming to a decision. The 
aasig^ee of tbe reversionary heir after widow's death would 
be in a position to ignore the alienation and sue for the estate 
unless it is proved by the alienee that the alienation was made 
for necessity, for a widow is absolutely incompetent to alienate 
without necessity whether any reversionary heirs existed or not. 
But the status of a childless proprietor as regards power to 
alienate ancestral property is no way analogous to that of a 
widow If there are no male lineal descendants of the common 
ancestor from whom the property was received in inheritance the 
childiesB proprietor is competent to alienate even without 
necessity. In his case therefore the restraint to alienate without 
necdssity is not absolate but contingent and the alienation made 
by him without necessity is not void but only voidable by the 
male lineal descendants of the common ancestor. It would thus 

{}) 22P.R^ 1900. (») 12 P. K.rl^ 



5g OIVIL JUDOMBNTS-No. 11. [ Smord 

appear that in a salt to recover an estate left bj a ohildleM 
proprietor it is neoeasary for the plaiotifE to allege that the 
alienation made is not binding on him. He cannot absolotely 
ignore it as it is not void even if made withont neoeuity, bat 
only voidable at his instance. The right to object no donbt is 
conferred on a collateral heir nnder the Onstomary Law, bat can 
each heir after devolatioo of inheritance transfer the same to a 
stranger to the family p This was donbted in Mouladad v. Earn 
(Tb/xxZ (<), though the matter was not definitely decided. Bat I 
am not convinced that he cannot. It is not open to denial that a 
collateral heir after devolation o( inheritance can sne for the 
estate, object to the alienation which may be set up by the 
adverse party and in case of success can transfer in favoar of a 
stranger the decree so obtained or the property itself after 
obtaining possession in execation. Similarly he may assign 
his interest wholly or partially before suit if he has no fnnds 
to sne, join as a co-plaintiff with the assignee, object as each to 
the alienation made by the childless proprietor and if sncoessfal 
may transfer the decree to the assignee or share the property 
with him. It is hardly conceivable that any valid objection 
conld be raised against such procedare. If this is permissible 
why he cannot assign whole of his interest to a stranger inolnding 
all its necessary incidents, one of these being the right to object 
to the alienation and authorize the assignee expressly or by 
implication to sne in his own name only. There seems to be no 
reason why he cannot. The right transferred is bat a mere 
expectancy and the sale itself is controllable nnder Onstomary 
Law by the reversionary heirs of the assignor. There is therefore 
no apparent ground why it should be insisted that the assignor, 
although he has wholly parted with his interest in the estate, 
should formally be joined as a co-plaintiff in the Bait. The 
inheritance having already devolved the heir is competent to 
alienate it to a strange subject to the veto of his own 
reversionary heirs which may or may not be exercised. And 
suppose the alienation in dispute made by the childless proprietor 
was in favour of a stranger then is there any reasan 
^hy another stranger to the family who derives his title 
from the actual heir should not be competent to object 
to the alienation and receive the property alienated P To hold 
otherwise would virtually result in depriving the true heir if 
devoid of funds from receiving his inheritance or deriving any 

i») 22 P. B., 1900 



WmwT. 1907. ] CIVIL JUDGMBKTS-^o. 12. ^ 

benefit from it. I am therefore iDclined to hold that appellant 
Devi Sisgh as aBsignee of the actual heir was oompetent to 
object to the gift set up by defendants. Bot the present appeal 
is maintainable on another ground also. In this case the tme 
heirs did actoallj join as oo-plaintiffs with Devi Singh. They 
snooessfnlly objected to the gift made by Bam Singh and then 
assented to a decree being passed in favonr of Devi Singh, which 
was done. In their cross-objections before the Divisional Judge 
they claimed a decree in their own favour only in case it was not 
maintained in favour of Devi Singh. Can this all be undone 
because they subsequently withdrew frotn the case when it was 
pending in the Chief Court on a question of bar by limitation 
I think not. 

Their subsequent withdrawal from the case cannot affect the 
decree already obtained, and this view is supported to a certain 
extent by Achal Bam v. Kazim Husatn Khan (*), where the co- 
plaintiff who was the true heir withdrew from the suit even before 
decree was passed, but his withdrawal was not held to affect the 
assignee's right to carry on the suit and obtain a decree. I there- 
fore hold that the lower Appellate Court was not justified in 
reversing the decree of the first Court on the ground that Devi 
Singh being left sole plaintiff on the record had no locus standi to 
contest the gift. I accept the appeal, revei-se the order of the 
lower Appellate Court and remand the case under Section 562, 
Civil Procedure Code, for decision on the merits. Court fee on 
appeal will be refunded and other costs will be costs in the case. 

Appeal allotoed. 



No. 12. 

Before Mr. Justice Chatterji, CLE. 
GANDU SINGH,— (PLAwnr?),— PETITIONER, 

Versus 
NATHA SINGH AND OTHERS,— (DEFtHDAHTB),.-EESPON- ^BB^MOwSnai 

DENTS. 
Civil Revision No. 139 of 1906. 
SuUfor possession o/ ghair-mnmkin land attaehsd to a wsll^Land autt— 
Appeal-^ Punjab Tenancy Act, 1887, Section 4 (1)— B«vmon— Poutfr of Chief 
Oourt to revise Jmdvngs on facts relating to question of jurisdiction. 

Eeld^ tbat a suit for pTsaeKBion of ghair'*numkin land oattida the 
abadi and attached to a well opon which hhurlis are bnilt and Ihusa is 
atacked a a land snit as defined in Section 4, sab-section (1) of the Punjab 

(») /. L. B., IXVn All., 871, P. 0. 



C0() CIVIL JUDaHBNTS— No. 12. [ Bioob]> 

Tenanoy Act, 1887, and that therefore the ccnrteof appeal is to the 
Divitional Goart and not to the Dietriot Court. 

Held, aUot that the Chief Court is fnlly competent to consider on the 
rerition aide the correctnees of an Appellate Conrt'f findings on the facta 
rektive to the question of jurisdiction of that Court to entertain the 
appeal. 

Roebuck y. Hinder ion (*) referred to. 

Petition for revision of the order of Lola Kesho Las, District 
Judge, Amritsavy dated ISth October 1905. 

Sheo Narain, for 4)etitioner. 

Garcbaran Singh, for respondents. 

The jadgment of the learned Jndge was as follows : — 

,..., -r tr^ru* Ohattbbji, J.— The only point for consideration by me is 

15*^ June 1906. ,,,,. ,. . , , 

whether the District Jadge had jansdiction to bear the appeal, 

or in other words whether the suit is a land snit or an nnolassed 

one. 

Mr. Gnrcharan Singh objects that I have no power to question 

the finding of the District Judge, that the land is not land as 

defined in Section 4, clause 1, of the Punjab Tenancy Act, 1887, 

but I am of opinion that 1 have that power and must have it in 

order to be able to exercise my revisionai f auctions. I have to 

decide whether the District Judge had jurisdiction , and in order 

to do this I must have power to go into all the matters per- 

taioiog to the conditions of cognizance by the lower Court of 

the appeal decided by it. This seems to be a self-evident 

proposition, vide remarks in Roebuck 9. Henderson (i)at page 158. 

I therefcve over-rule the objection. 

Coming now to the merits of the question, I am of opinion 
after a due consideiation of the authorities and the definition 
given in the Tenancy Act thai the land is land within the 
meaning of Section 4, clause 1 of that Act. The definition is not 
very clear on all points, but I find that the land is outside the 
mbadif and is attached to a well. It has a khasra number which 
shows that it was measured at Settlement, and it is proved that 
it is duly entered in the JMmabandi in 1892-93. Defendants, 
Mangal, &c., are entered in the cultivators' column. It appears in 
the jamabandi of 1908 and 1904 as land of their ownership, 
and mutation of names took place in their favour on 15th 
June 1904, it has all along been shown in the revenue reoords. 
It has khurlis and is entered as ghadr'munikin^ and hhusa is 

'^ 0) 64P.ft^l8M. 



Fbbt. 1907. ] OITIL J0DaiilKT«^Ko. 18. 



61 



BUoked on it. These facts are suflBcient to show, I think, that 
the land is agricoUnral land and is used for pnrposes 
snheeryieDt to agrionltare, and fulfils the requirements of 
Sectioa 4, olause 1, of the Tenancy Act The suit is thus a land 
suit, apd the District Judge was not competent to hear the 
appeal. 

Objection to the jurisdiction of the District Judge whs 
taken before him, but over-ruled; I am bound therefore to 
interfere. 

I accept the application and set aside the decree of t he 
District Judge, and order the memorandum of appeal to be 
returned to the defendant for presentation in the proper Court. 

.Court fee on the petition for revision to be tefuuded. Costs 
to abide the event. 

ApplicoHon oUowed. 

No. 13. 

Before Mr. Justice Beid. 

KAaiMBAKHSH AND AN0THEB,-(PLAiiiTivf8),- 
APPELLANTS, 

Versus J Appilutb Side. 

WATTA MAL AND OTHERS,— (Dbfbndants),— 
RESPONDENTS. 

Civil Appeal No. 278 of 1906. 

OM*tom^Fr4'4mfHon^Pre^inpti9n ^n saU c{f «hop«— ICatra Pairangan, 
AmrUtor eUy. 

BM, thai the oottom of pre-emption In respect of «ale off thopi bj 
reason of rioinacre '^^ Katra PatiAQgan of the *Qitj of Amritaar had not been 
Mtabliahed. 

Further appeal from the decree of A. E. Hurry ^ Esquire^ Divisional 
Judge f Amritsar Dtvisum^ dated 4ith November 1905. 

Passal Husaain, for appellants. 

.Sukh Dial and Rop Lai for respondents. 

The judgment of the learned Judge was as, follows ^— 

Rbid, J.— The first question for decision is whether the 9^^ Novr. 1906. 
right bf preemption in respect of shops exists in Katrct 
Fatrangan. 

The evidence on the record satisfies me, and it is prac- 
tioally oo&odiled that Siaira Patrangan forms part of Kila 



62 OTFIL JUDGMINTS-No. 18. [ 



Bhanfl^an and is not a separate diyision of the dty of 
Axnritsar. The burden of proying tlie existence of the right 
was on the plaintiff-appellant. As remarked by the lower 
Appellate Coart, Kila Bhangian is a very large snbdiyision 
and the right set npmnstbe proved to exist in it, the namber 
and Talne of instances cited being considered with reference 
to the whole sobdiyision and not with reference to any 
particular pai-t thereof, evidence of 2 or 3 instances in one 
pmall katra or street does not establish the existence of the right 
in that katra or street, as distinguished from a kaira or street 
of the same subdivision in which no instances have occurred, 
all being part of the same subdivision and not separate sub- 
division. The whole subdivision is the unit, the existence of 
the right in which has to be established. Apart from oral 
evidence, which is of very little value, counsel for the appellant 
relied on — 

(1) Labhu Singh v. Qurditta (^), in which a Division 
Bench in a suit for pre-emption in refpect of a shop, said : 
'* The first question which arises in this case is whether Kaira 
" Kanak Mandi in the <nty of Amritsar forms part of KcUra 
" Bhangian, in which the custom of pre-emption admittedly 
" prevails." The language used is loose, and I am unable to 
accept this statement as a finding, or as recording an admission 
of the existence of the right in respect of shops as distinguished 
from houbes. The plaintiff might well have sought to base 
an argument in favour of the existence in respect of shops 
on an admission of the existence in respect of houses. The 
Oourt held that the shop was sitnate in another subdivision 
and dismissed the suit. The issues in the Courts below and 
the memorandum of appeal^! to this Oourt did not distinguish 
between the right in respect of houses and the right in respect 
of shops. 

(2) AUar Singh v. Sant Singh («), in which a Division 
Bench held, on the authority of a ruling of this Oourt in 1888 
and a compromise decree of the Additional District Judge of 
Amritsar in 1896, that the right existed in respect of shops 
in Kaira Nihal Singh, another subdivision of the city of 
Amritsar. The Bench also found that the vendor had himself 
purchased the shop property in suit by a threat of pre- 
emption. 

(») 46 P. a.. 1882. (•) 118 F. a, 1S06. 



190t. ] OIVIL JUOQMBNTB-Ko. 18. gg 

(3) Civil Appeal No. 39 of 1905, in which a Diviiion Bench 
held that the existence of pre-emption in respect of hoases in 
Kila Bhangian bad been established. The Conrt dealt with 
three inttancee of claims, two being in respect of houses 
and one in respect of a shop, and found that the former bad been 
Bneoessfol and the latter ansnocessfal. 

(4) Amritsar Divisional Conrt, Civil Appeal No. 339 of 1904, 
dismissing a snit for pre-emption in respect of a shop in JTa^a 
Talab Tnnda, a Eeparate subdivision of the Amritsar City. The 
Court found that Talab Tnnda was not part of Kila Bhangian, 

and that Instances from other FnbdivisiorF rrnid rot Fupi-ly the 
absence of instances in the subdivision in suit. The^e findings 
cannot be treated as authority for the existence of the right 
in respect of shops in Kila Bhangian. 

(5) Bfamon v. Ohaunsa (^)/\n which a suit for pre-emption 
in reeneet of a house in another snbdivision of the city of 
Amritsar was decreed, and the Division Bench held that the 
existence of the right in neighbouring subdivisions might 
** be taken into account in support of the direct evidence 
*' of the existence of the custom in the partioolar subdivision 
•* concerned." 

(6) Two decisions by subordinate Courts of Amritsar 
in 1895 and 1904, in the first of which the parties admitted 
the existence of the right in respect of a shop in Kaira Pat* 
rangaU) and a compromise was effected. In the second 
case there was a compromise and the decree was based 
thereon. 

For the respondents the following authorities were 
cited :— 

(1) Civil Appeal No. 175 of 1898, in which a Division 
Bench of this Court held that the plain tiff-pre-emptor had failed 
to prove either that Lohi Mandi was part of " Katra Bhangian " 
or ihat^ even if it were part, any custom of preemption in res- 
poet of shops existed therein. 

(2) Civil Appeal No. 1271 of 1900, in which a Division 
Bench held that the plain tifi-pre-empt or had failed to prove the 
existence of the right in respect of shops as distinguished 
from houses, in Katra Ahluwalian, a subdivision of Amrit- 
sar. 



(1) 99 P. B^ 1906. 



64 ^itlL JniH»lt8NTS-No. 14. [ BiC0i» 



(3) Oiril Bevision No. 793 of 1906, in which I conooraed 
with the two Ooarte helow in holding that the plaiatift- 
pre^emptor had failed to prove the existence of the right in 
reepect of shops in Ktla Bhangian. A marked distinction 
hetween the right of pre-emption in respect of shopeandin 
respect of hoases, exists, and the plaintiff-pre-emptor haa, in mj 
opipion, failed to efitabliah the existence of the right in respect 
of shops in Ktla Bhaugian, the weight of authority, indeed, 
being against him. 

The appeal fails and is dismissed with costs. 

Appeal dismissed. 



No 14. 

Before Mr. Justice Beid. 
SHARFO AND ANOTHER,— (DBFKNDAFrs),— APPELLANTS, 
AppiLLiTi SiDi. I Versus 

BAMZAN AND OTHBES,— (Plaintiffs), -^RESPONDENTS. 
Civil Appeal No. 1361 of 1905. 

Custom^ Inheritance - Right of a seH'in^law of a kh«D«dainad to 
tucceed- Oujaie of Qujmt District, 

Found in a oaae the parties to wbioh were GojiMrs.of the Gajtafc District 
that by onetooi the son-in-law of a khanadamad was not entitled 
eren if he bad been appointed khanadanuid by his father-in-law to saooeed 
as snoh to the estate of the fathor-in-Iaw of the latter. 

Further appeal from the decree of Captain B. 0. jB6#, Divisional 
Judge, Jhelum Division^ dated 22nd August 1905. 
Nanak Chand, for appellants. 
Fazal-i-Hnssain, for respondents. 
The judgment of the learned Jndge was as follows : — 

26th AT 1906 Rbid, J.— The ^le question for consideration is whether 

among Onjars of the On j rat District the son-in-law of a khatM* 
damad may be appointetl khanadamad and heir to the ancestral 
estate left by the appointer of the first khanadamad. 

The anthorities cited are Kamman v. Natku ('), Muhammad 
V. Mussammat Umar Bihi (*)yNavfQh v. Wallan (>), Civil Appeal 
No. 444 of 1895 ; Ohimgh Bihi v. Hassan {♦); Roe and Rattigan's 
Gnstomarj Law, pages 61 and 65, find the answer to Qoeetion 13 
at pnge iv of the Costomary Law of the Gnjrat District As 

(') 96 P. R,, 1892. (») 91 P. B., 1906. ' 

(•) 129 P. B., 1898. (♦) 19 P. B., 1906. 



Pmn. 1907. ] OlVlL J UDOMinflTB— No. 14. 65 



beld in Muhammad v. Umar Bibi (») that answer has been 
incorrectly recorded by the Settlement Officer in the printed 
▼olume and rans as follows : " If the aulad dukhtari have, 
"dnriog their life-time, married a daughter and kept her in 
" their boose with her bosband as ghar-jatoatra and supported 
« ihem, and by a written deed or by a verbal gift placed them 
" in possession then that daughter and her aulad will be 
" malik " 

In KammarCs case it was held that gifts to daughters 
whose husbands are khaiiadamcida are allowed by Onjais and 
Mnhammadan Jats of the Gnjrat District. In Muhammad* 8 
case it wae held that among Mnhammadan Jats of Onjrat a 
daughter to whom a gift of ancestral property had been made 
could not give it to her daughter or the husband of that 
daughter. It does not appear clearly from the report that 
the husband of the first donee was a khanadamad^ but the 
argmncmts used in the judgment imply that he was. 

Civil Appeal No. 444 of 1895 was decided solely on the basis 
of assent by the reversidners, though It was stated that 
the daughter of a khanadamad and her husband were 
persons whose possession might naturally be assented to. 

In Ohiragh Btbi v. HoMsau it was held that among 
tribes who do nof usually recognise daughters as heirs the 
word cu^d does not include fcToales. 

Nawah V. WaUan dealt with the custom governing 
Oachars of the Shahpur District and specifically distinguished 
them from the Qujrat tribes dealt with in Aluhammad^s oaae. 

The passages in Roe and Battigan's Customary Law 
cited lay down the general rule that married daughters who 
Bucceed do so, not as ordinary male heirs, but as the means 
of passing on the property to another male, whose descent 
from his mother's father in the female line is allowed under 
special drcumstanoes to count as if it were descent in the 
male line, and that if there is no Ron the land will revert, 
except in special instances where the daughter's husband is 
allowed to hold for his life, to the agnates of the daughter's 
father. 

The dicia at page 504 of the report of Muhammad's 
case, relied on for the defeodant-appellants, do not help 
them. The dicta runs as follows : — 

'* Daughters when they are allowed to succeed rarely, 
^* if ever, succeed absolutely. They are merely recogiiised as 

" (0 129 P. B., 1»W. 



g| , OnriL JUDtiMBNTS— No. 15. [ BtOOBO 



transmitting a title to their posaible male children, that 
" ifl, their father's grandchildren. When the latter earvive 
** and succeed they are natorally in the same positiou as if 
'* they had succeeded throngh the male line and may do 
'' whaterer their maternal grandfather or any other sahib 
^^jaidad might have done. ** 

This cannot be interpreted as authority for holding that 
the daughter can transmit the estate to her daughter efen 
where that daughter and her husband have remained in the 
house of the daughter and hhanadamad^ t. e., the house of 
the last male owner whose estate is in suit. 

The authorities are, in my opinion, in favour of the decree 
of the lower Appellate Oourt, and I answer the question 
stated at the beginning of this judgment in the negative 
and dismiss the appeal with costs. 

Appeal dumissed. 



No. 15. 

Before Mr, Justice Johnstone. 
AMIR ALI,-(PLiiNTifr),— APPELLANT, 
AwiLUTitoi. ^ ^ y^^ 

BAGGO AND OTHERS,— (Dbfehdints),— RESPONDENTS. 
Civil Appeal No. 829 of 1904. 

Custom— AlienaHon^-'Will-^Oompetency of a 9onles$ proprietor to make 
« will in favour of his daughter in presence of brother — Avfans of Bavmlpindi 
Tahsil. 

Found, that hy oaftom among the Awanf of Rawalpindi Tahsil a bequest 
of anceftral property by a bodIobs proprietor in favour of his dangb^ is 
valid in the presenoe of his own brother. 

Further appeal from the decree •/ Captain B, 0. JRoe, Divisional 
Judge^ Batoalpindi Division^ dated 2^th May 1904. 

Harris, for appellant 
Morrison, for respondents. 

The judgment of the learned Judge was ss follows : — 

26^* Now* 1906. JOHKSTONB, J.— In this case plaintiffs suit impugns a will 

made by his late brother, Jafar, iu favour of his widow and his 
two daughters as being (a) a fabrication, (b) executed by Jafar 
when he was out of his senses, (0) invalid by custom. The 
Courts below have both found against plaintiff as to («) and (6)1 



Iter. 1907. ] CIVIL JUDGMBMTS— No. 15. ^ 

mnd be does not attack these findiDgs in his appeal. As regards 
(c) the 6r8t Coart decided p gainst tlie will and gave p]ainti£E a 
decree, which the DiTisional Judge has le^eiped ou the ground 
that cnstom is in faTcnr of pDch willp. Plaintiff appeals en this 
matter alone, and I have heard argnments and have also studied 
most of the available information regarding the A wan tribe to 
which the parties belong. 

In Wilson's Oasetteer of Shahpar (1897) the Awans are 
described as an indigenons Paojabi tribe, thongh they claim 
descent from one Alif ,.Shah, alias Qntab Shah, a descendant of 
Ali. There are over 52,000 of tbem in Shahpnr in the Khnshab 
Tdhnl^ and they own all hot one of the Salt Range villages and 
^ of the land of the Khnshab (Salt Range) Settlement Circle. 
In what was until lately the Rawalpindi District bat is now the 
two Districts of Rawalpindi and At took, there were in 1993-94 
some 130,000 of these Awans— see Revised Gazetteer, page 101. 
In the Talagang Tahsil^ now a subdivision of Rawalpindi, bat a 
short time ago apart 9f Jhelam, the Awans are the prevailiog 
tribe and the tract is known by ihe people as Awan-kari. 

The writer of the Jhelam Ghtzetteer (1883-84) also classes 
them as a Pnnjabi peasant tribe, and discards all the theories of 
foreign origin that have been pat forward from time to time. 
These Awans, I should note here, are also fonnd in Peshawar, . 
Sialkot, Banna, Gnjrat, Ladhiana, Jallandar and Mianwali. We 
are therefore, I think, jastified in taking as onr initial presamp- 
tion that they wonld follow customs similar to those of the Jat 
tribes of this Prorince. 

The parties to the present case are inhabitants of the 
Rawalpindi To A nt'L The main provisions of the will to which 
•zoepiion is taken by the plaintiff are these :— 

(1) \ estate to go to widow, \ to each daughter, | to 

collaterals. 

(2) After death of widow her } to go to collaterals. 

(3) Daughters (two) to be foil proprietors even after 

they marry and to be succeeded by their husbands 
and sons. 

(4) If daughter dies unmarried, her share to go to 

collaterals. 

Here I should iiot« in passing that I over-rule the suggestion 
made by Mr. Morrison, advocate for respondents, that the suit 
should not have beou for a mere dedaratioo. The widow baia^ 



■^ OITIL iD0QMSNT8-Na IS [ BtooaD 



aliye, how ooaid plaintiff get possession at onoe even if he 
succeeded in overthrowing the will ? 

The dispute is ci early really between plaintiff, a brother, 
and the two daughters : plaintiff can hardly have a case against 
the widow who ander the will is made little more than a life 
owner. Or, if this is not clear, plaintiff is, as regards the 
widow, entitled merely to a declaration that what she holds, she 
holds as a life oitpner only. 

Turning to the daughters there oao be no doubt that among 
Punjabi agriculturists the presumption is that as heir to the 
ancestral propi^rty of a sonless proprietor a brother is preferred 
to a daughter, except perhaps where the daughter is married to 
a khan tda mai or has rendered special services to her father. 
Neither of these two inoidants emerge here. The presumption 
also is that gift or will of auoesbral prop arty to a daughter with- 
out the o«>n8ent of the brother is invalid. For these general 
propositions no authority is required, but I m ay quote section 
23, Rattigan's '* Digest of Customary Law, *' 6th Edition. 

But the Awans, notwithstanding their supposed origin, have 
undoubtedly here and there departed from the rules of custom 
here stated, if they ever followed them, though the evidenoe to 
be found in compilations of customs and io Ohief Court rulings 
is conflicting. 

In the Rawalpindi Code of Customary Law (Robertson) we 
find the following indications of the position of daughters 
amongst Awans and of the powers of a sonless proprietor to give 
or bequeath ancestral estate, vi». .*-— 

(a) Page 10, question 13, among Awans collaterals up 
to 4th degree exclude daughters. 

{b) Page 10, question 14, even if daughter lived with 
her father till his death, near male collaterals are 
preferred. 

(c) Page 16, question 37, established . that a man can 
will away some part of his property, though bequest 
of whole estate to the detriment of near collaterals 
would be disputed. 

(<0 Page 17, question 38, Awans say testamentary dis- 
position can be made without consent of heira, but 
this is more than doubted by the author. 



1«*». ] CiVlL JOiJrQMBlilrS -No. 16, 



69 



Cf ) Page 18, qnestion 40, an Awan proprietor having uo 
inale issue can make a gift of whole or part of his 
estite without the consent of near agnates. Instances 
are given ; hnt— 

(/) Page 19, qnestion 42, Awans admit a difference in 
power of gift according as property is ancestral or 
aoqmved. 

(g) Page 21, qnesticn 48, a father cannot disinherit one 
BOD for the benefit of tJie rest. 

(h) Page 22, question 54, the ^sastom is for a father to 
divide equally between his sons, bat he can divide 
unequally if be chooses : many instances of noeqaal 
diyiifbn ilk adjoining tribes, not among Awans. 

In the last thtee pages of Roe and Rattigan's '^ Tribal Law '* 
(1895) an abstract' is given of the nnpablished Shahpnr Riwaj't- 
awi. It is there stated (page 149) that if among Awans there aie 
male descendants in male line, immoveable property cannot be 
gifted without their consent, but in default of them it may be 
gifted to any lieir (tcaris) or to daugbtert^ or sisters, or their 
sent, or to a Un-hi-laif^, while an unequal distribution amongst 
•CDS caimfbt be inade. 

I have given this informntion from Robertson's Code and 
from Roe and Rattigao's book in order to show what guidance 
the CloarU haV^ had in r^oebt years from what might be oalled 
teztbbiiks orsialement^ of opinions of expert officers. It re- 
mains to see (i) the net result of the Chief Court rulings 
re^ktAiog A-tnws, (ii) special proof of custom offered in this case 
itself. I have said that the initial presumption, before we look 
st stateinentb of custom and Chief Couit rulings and the special 
evidence on the present reooid, is against the will and against 
the Boeoession of daughters in preference to brothers. It is 
therefore for defendants to show that this presumption is re- 
butted by statements of custom aforesaid nnd by Chief Court 
rulings relating to the tribe. If they are successful in this, it 
would then become incumbent on plaintiff to show that the 
ptetent record proves a custom in his favour. I had better olear 
the ground by taking up the latter question first. 

Only threl» iij^ianoes have been pot forward in the first Court 
by defendants and none by plaintiff. Of these tiiree instances, one, 
MalU'e OMe« ia olear And is in favour of defendants, the other 



7^ C'VII, JDDGMKNTS-Ka 16. f ktcma 

two are denied and are not proved. WalJi's case was fonghi ont 
»n Conrt and ended in a decision in fayonr of a wiJI to a daughter 
to the detriment of a collateral. Bat a single instance can 
hardly rebnt a presumption worthy of being called a presomp. 
tion ; and so we see that the prewnt record will hardly helo db 
atall. ^ 

As regards Chief Court rnlings bearing on this dispute I 
have found a very large Dnniber,oDt of which I have selected 30 
as showing varieties of view and opinion. These I proceed to 
classify. One ruling appears twice— 

(A) Daughters t;. collaterals as heirs :«* 

1. Muasammat Pana Btbt v. Khodayar (i), unmarried 
daughters preferred to collateral. 

2. Sharf'ud-dtnY.Nabta («) (Ludhiana) : agnates in tenth 
degree preferred to daughter's son. 

3. Mussammat Sharfan v. Kammu («) (Rawalpindi town) : 
onus generally against daughter and daughter's son and in 
favoor of brother and nephew. (In this ruling no previous 
cases were noticed, the parties being treated as if they were 
Jats. This ruling appears again lower down under B). 

4. Mussammat Mirjan v. RahnuU (*}, (Peshawar) : in 
presence of collaterals daughrer only gets maintenance. 

(B) Gifts to daughters and their sons and husbands in 
presence of sons and agnates : — 

5. Banjha v. Mussammat Rahim Bibi (*), (Sialkot) : not- 
withstanding Biwaj'i'am to the contrary gift to daughter by 
son less proprietor held valid. 

6. Jiwan V. Wattr (•) (Gujrat) : gift to resident daughter 
valid, not to non-resident daughter. 

7. Ahmad Khan v. Mussammat Qviam Bibi ('), (Khushab), 
decided finally on the ground of non-delivery of possession : 
contest between a mother, widow and agnates on the one hand 
and sister's son on the other, who was donee : no opinion in favour 
of or against gift. 

8. Mussammat Sharfan v. Kammu (•), (Bawalpindi town, 
see 3 above) : gift to daughter and her son invalid in absence of 
' evidence of special custom. 

(1) 81 P. B., 1879. (4) 81 P- /2., 1893. 

(2) 64P. B., 1892. (5) 28 P. R., 1877. 
ifi) 116 r. /?., 1892. (6) 89 P R., 1887. 

(7) 36P.il., I «91. 



rwr. 1907. ] CIVIL JUDGMBNT8— No. 16. 7I 



9. Bastd Khan y. Muasammat Mastur Bano f '), (Talagacg) : 
presamption agaiDst gifts of half anoesiral estate to daughter in 
presence of sons. 

10. AU Baihih V, Sathu {*) (Sialkot) : gift npheld of half 
ancestral land to resident Ron-in-law who has not inherited from 
his own father. 

11. Miran Bakhsh v. Ala Ditta ('), (Sialkot) : gift to 
resident son-in-law assamed valid, bat qaestion of RocoeBsioD to 
donee by his collaterals dooided in the negative. 

12. FaHu V. BaJehsa (^}, (Talagang) : gift to daughter's 
son in presence of nephew not decided on question of power to 
f^H : opinion rather in favour of validity if possession had only 
followed. 

13. 8her MuJummad y. Phula (*) (Khnshab) : in favour 
of nnrestrioted power of sonless proprietor to gift property, 
ancestral or otherwise, to daughter, daughter's son, son-in-law, 
or agnate. 

14. Devi Das v. Bhakra (') (Mianwali) : childless man has 
nnrestrioted powers of gift or will. 

15. Khatru v. Fattu (') (Jnllundur) : gift tc daughter or 
daughter's son by sonless man valid against agnates in third 
degree. 

16. Khudayar v. Fatteh (•) (Talagang) : a large number of 
rnlings collected : gift to daughter's son who had rendered service 
to the sonless donor valid against nephews. 

(0) Unequal distribution among descendants : — 

17. Bahhtawar v. CMrag (•) (Shahpur) : gift to son by one 
wife upset by son of another wife. 

18. 8yad Basul v. Fazal (*°) (Jhelum) : father's power of 
nneqnal distribution denied. 

19. Mian Khan v. Mehr Khan (^ ^) (Rawalpindi) : same. 

20. Mehr Khan v. Karam Ilahi ('*) (Khnshab) : unequal 
distribntiou of ancestral estate so as to disinherit a son disallowed. 



(») 81P.fi.. 1894. (') UP. fi., 1908. 

(•) 98 P. «., 1894. (») 8 P. fi., 1906. 

(>) 128 P. fi., 1894. (•) 8 P. fi., 1879. 

(♦) 16 P. «, 1896. (*•) 7 P. B., 1891. 

(•) 9 P «., 1899. (**) 107 P. M„ 1894. 

(•) 68 P. R., 1899. (»•? 18 P. E., 1902. 



72 CIVIL JUDGMENTS-: Np. I JlF^. 

(D)^Gift8 to [^otber than dang^hters and th^ir aoiii aad 
hnsbands :— 

21. Mussammat Khamo v. B xl Din (^) (]?(»f|hAir9r) : » 
certain power of gift asserted, no precise r,nle, see, &lflo, Sber 
Mabammad v. Pbula (•) and Devi Da it. Bhakra (•) at (18).and 
(14) above. 

22. Bayat Muhammad v. Faxl hmad (*), (Rawalpindi) : 
onus as iii Jat cases : no power to give wbole estate to grand* 
nepbews in presence of brothers. 

23. Bokhsha v. Mir Baz (•) (Kbnsbab) : gift to wifeV 
brother, a distant sgra^e, vnlid against half brothers. 

24. AuUn V. Alu(^) (Khnshab) : gift to first consin (nterine 
brother) : npheld several rulings in favoor of gifts mentioned. 

26. Nura v. Tort C) (Talagang) : gift bj a god1<^s mfn to 
wife's sister's son valid in presence oi brother. 
(E) Wills:— 

26. Muhammad Khan v. Atur Khan (*) (Banna) : a aopleas 
man has no special power to will property. 

27. Mussammat Bhai$ v Fapu (•) (Jallnndnr) : no oif^tom 
proved nnde: which a widow can beqneath wbole estate to nn- 
mairied daughter. 

28. Bahadur v. Mussammat Bhtli (to) (Jh^lnm) : will to a 
daughter in presenca of brother invalid . 

29. Muhirrab v, Fattu (' *) (Talagang) : bequest to an 
agnate one degree further removed than plaintiff held invalid in 
absence of proof of special cnstoo). 

30. Qhulam Muhammad v. Abbas Khan (*•) (Talagang) : 
power to will away ancestral estate denied 

31. Alt Muhammad Y. Bulla (>») (Shahpnc) : pp;vv6rto ^V 
exists, and bequest to daughter's soo in presence of brother is 
valid. 

There are also a few rulinga relating to alienation of self- 
acquired property which are of little use here. 

These, rhen, are the rulings ; and it has to be borne in mind 
that under the authority of Mussammat Bano v. Fateh Khan (**) 

(•) 9 P. ft, 1899. a {7 P i'lSo* 

(>) b;. P. ft, 1899. (Miospfl iSa 

(*) 52 P,R,, 1892. JxiN 88 ^ » ' iS?' 

(•) 79P.fi., 1896. In] ^if'j^ 
(•) 49P.«.,1898. (X.; ^pF'J^- 



ih|Br» islitUeorno difforenoa betwfian the power to gift and 

il^e powf^ to wilL This wm not always the doctrine followed 

oi^ believe^ <o be sound, for it need to be aipponed that a ]K>wer ^ 

of gift inUr mgcM migbt ba more readily oonoeded than a power 

to deniie by teatamont. 

I have set forth olaas A, because it is important to see to 
what extent castom favours daughters apart from gifts or 
bequests. 1 have set forth class B, because gifts and wills have 
bqen declared to be. on much the same footings. and D are 
classic pf oase^ frqm. which it is posbible to gather what is the 
custom in regard to alienations from another stand point, 
i|awely, the e^nd point of the powers of male proprietors to dea^ 
with- their OW9 at will. T^e present c&se is one of a will, and 
thus the qbjoet in setting down the.^ix qases in class E is apparent. 
In cIass a only one case is in favour of dangbters, and that is 
not only the earliest bnt it is of a date prior to the emergence of 
that agnatic theory set forth in Oujar v. Sham Das (^) and 
many subsequent ra lings. The net result is distinctly unfavour- 
able to daughters. The four cases in class show the existence 
of a peculiarly jealous resistance against all attempts at differ- 
ential treatment of male heirs apart from questions of competi- 
tion be twfBei^ maja beirs and persons outside tha agnatic group. 
Class E also does not kelp defendai^ much. No. 31 is a fairly 
strong case for wills from Shahpur aod No. 27 can be left out of 
account ; bnt the other three oases^-two from Talagang and one 
from Bannu— *are dead against all power of alienation of ancestral 
estate by testament. So far the^ balance is undoubtedly against 
Um defendants in the present case. It is when we come to 
classes B and D, gifta of all kinds, that we find evidence in favour 
of defendants. 

T think, if tjiese qlaaa^ are fairly, looked at it will.be seen 
(i) that any interference with tba natural rights of sons is 
leal^Qsly resented, (ii) that, when thero are no sons, much free- 
dom iaallowed to male proprietors ; (iii) that, while especial in- 
dulgenoe is shewn in approving gifts in retnrn for services 
rendered or to resident daughters or son-iu-law, there is a suffi- 
cient reaidnum of authority for the proposition that in the case 
of a sonless man a gift to a daaghter or daughter s son would be 
held valid in the absende of rebuttal. As to (i) I would refer to 
case (9) and to th ) comparative absence of attempts to pass over 
sons. As regards (ii), I point to Nos. (5), (12), (13), (U), (16), 
2i), (2t), (25). OP th9.e N)s. (13), (I j) and (25) from 



74 OIVII* JUDGMKNT8-Na 16. [ Eicot* 



AptbeiLati Sim. 



Khashab, Mianwali and Talagang, are eflpecially stroDg. As 
regards (iii) 1 relj npon these same oases, Nob. (6), (12,) (13), 
(U) and (15), aud refer also to Nos. (6), (10,) (11), (16). 
Against all this we have really only Nos. (8) and (22), the latter 
of i%hioh can be in part explained away by observing that it waa 
a case of contest between heirs equally entitled. The statementfl 
of OQstom noted early in this judgment on the whole tell a 
similar tale. 

I woald find, then, in fayonr of the will in the present case. 
1 adopt the idea set forth in MuBsammcU Bano v. Fateh Khan (>) 
and pot gifts and wills on the same footing. The decisions 
against the power to will in some cases proceeded npon the ide^ 
that, while the rule of alienation by gift was a rtile of cnstom 
that of alienation by will was a matter of Mnhammadan 
Law. 

It follows that I mbflt dismiss the appeal with costs. 

Appeal digmissed. 



No. 16. 
Before fir. Justice Robertson and Mr. Justice Lai Chand. 
SUNDAR OAS,—(Defbndaht),— APPELLANT, 
I Verms 

DHANPAT RAI AND OTHERS,— (Flaihtiffs),— 

RESPONDENTS. 

Civil Appeal No. 966 of 1902. 

Custom^Pre'efnpti<m-'Pre'$mption on 8<d» of house property-^KuohB, 

GalMariShah Mohalla WachhouHiliin the city of Lahore— Decree in favor of 

pre-emptor— Payment of purchase money into Oourt-^Withdrawal of such money 

by vendes "EJfect of such withdrawaZ^ Right of vendee to maintain appeal on 

substantive right-- Revision -Competency of appellant to question finding of 

fact^Punjab Courts Act, 1884, Bection 70 (2) (5), (tv). 

Found, tbat the oaetom of pre-emption io respect of sales of hooae pro. 
perty based on vicinage eziatB in Kucha Gulzari 8hah which is a part of 
Mohalla Waohhowah*, a well recognized eabdivision of the city of Lahore. 

Held also, that in a pre-emption suit a vendee does not forfeit his lejral 
right to appeal from a decree passed airainst m or to proceed with his 
appeal on Bubataative right, merely beoanse he had withdrawn t^e porohaae 
money paid in Oonrt by the pre-emptor for his benefit. 

Held further, that when an application has been admitted under Ssotien 
70 (2), (6) (tw) of the Punjab Courts Act, 1884, it is not open to the appal- 
lant to question either the validity or the souadnesa of the findingt of 
facts arrived at by the Lower Appellate Oonrt. 

0>ap. vi9oa, F. 1. 



JFwBt. 1907. CITIL' JUDGMENTS— N6. 16. 75-^ 



The question that whether « deed of tranFfer which en the face of it 
purported to be ODe of mortgage was in le^lity what it porpoited te he 
or a sale is a qnestion of fact and not of law. 
Further appeal from the dtcree of B. Scott Smith, Eaqnife^ , 

UivisionaJ Judge , Lahore Division, dated IH Ntvember 1902. 

Lajpat Bai and Dwarka Das, for appellant 
Shadi Lai, for rMpondente. 

The judgment of the Gonrt was delivered hj 

Lal Ghind, J.— a decree for pre-emption of the honse in suit Srd Deer. 1906. 
wa8 passed by the first Coart in plaintifis' fayonr on 17th Jnly 
1902. The plaintiff who is respondent in this appeal applied 
for execQtion of the decree by delivery of possession on 22nd 
July 1902, and obtained possession in execation on the 25th July. 
The defendant — jadgment-debtor— appealed against the original 
decree, but his appeal was dismissed by the Divisional Jndfi:e on 
1st {November 1902. The present revision which has been ad- 
mitted as an appeal onder Section 70 (d) (iv) was filed on 14th 
November 1902, and it appears that on 21st November 1902 
the appellant withdrew from Court the parchase money 
that had been deposited for payment to him by the plaintiff- 
respondent. It is contended in the grounds of appeal that the 
deed of mortgage in qnestion was not intended to be a sale, 
that Kucha Gulzari Shah where the hoase in dispute is situate is 
a subdivision and not pait of MohaUa Wachhowali as held by the 
lower Courts, and, finally, that a custom of pre-emption is not 
proved to exist in Kucha Onlzari Shah or in MohaUa 
Wachhowali, and that at any rate the plaintiffs have failed to 
prove that they have a preferential right. A preliminary 
objection was taken by the counsel for the respondent at the 
commencement of the hearing that the appellant having already 
withdrawn the parchase money from Court was debarred from 
proceeding with his appeal. We over-ruled this preliminary 
objection at the hearing as unmaintainable. The statement of 
facts already given makes it absolutely clear that the money was 
withdrtwn by the appellant subsequent to delivety of possession 
in execution proceedings and while his appeal was pending 
in this Court. There is no provision of law in the 
Civil Procedure Code, which under the circumstances would 
justify a Court in dismissing the appeal as unmaintainable. 
According to the Civil Procedure Code if the appellant fails 
to appear at tic heaiing hie appcbl n ubt be dikmi^tcd for default. 



79 ^nv'iL jtTBcrif wrra— MO. i^ { 



If he does appear and proceeds ^itb his app^ai it nmst belieard 
knd decided on its iberits unless the appiefiatit (gxpiess bis will- 
ingness to withdraw it. There is do provision which would 
joBtify a dismissal merely because the appellant in a pre-emption 
suit has withdrawn the "pnrchiiilBb looney paid into 1/onrt ior his 
benefit. The worst that could be urged against the appellant 
nnder the circnmstanoee woald be that by w ithdrawing the pnr- 
ohase money the appellant had acquiesced in the deotee 
passed by the lo^er Cotiit, aha thtieby attepted its 
validity. But this is not a proper and even a fair- inlerence 
tf) be diawn, and acquiescence by conduct is not deancible as a 
legitimate conclusion from the ciioumstances. Ihe money 
was paid into Court lor the express purpose of payment to the 
judgment-debtor, and in tact the payment formed a necessary 
and essential prelimioairy to the institution of execution proceed- 
ings for delivery of possession. Tne judgment-debtor waa com- 
pelled by process of Court to part with possession, and if he 
received its equivalent as a pbrt of the execution proceedings 
could it be fairly preaicaiea that thereby he voluntarily accepted 
the decree of Court as tina) and conclusive debaiiing bim not from 
merely filing an appeal, but rendering the appeal already filed a 
altogether nugatory and abortive, i nere aoes not appear to be 
any legal or equitable ground for entertaining such view. 
On the other hand, it appears to be extremely inoongruoua, 
if not ungracious, on the part of the decree-holder to urge the 
plea. It was the decree-holder who^ for his own advautagOi 
started the legal proceeJiags to oompel delivery of possesnion, and 
he secuied possession by deposit of purchase money for the 
benefit of the judgment-debtor. It seems therefore ridiculous oq 
his part then to urge that the judgment-debtor should be held 
pi-ecluded from proceeding with his appeal because he has received 
the money deposited for his benefit, it is a pure question of in- 
teoion in each case, and 1 am not prepared to hold that r^-oeipt of 
money nnder 9uch or similar drcnmstances is conclusive pnx>f 
that the judgment-debtor thereby intended to abandon 
his appeal. 

In the present case the judgment -debtor received this monej 
several months after parting with possession of property, and in 
his respedt th-» base is distinguishable from Fertm-fidrdm ▼. 
Ohidafn Sniui (No. 695 of 1905 unpublished), which was quoted 
for the respondent at the hearing, aiid where it was found -chat 
the appellknt had r^taihed th^ posSertion of property M well 
aa cC ika parohaee money. But even if it were otherwise, I am 



Fkby. 1907. ] OIYXL JCDOMENTS-^Mo- W. 77 

unable to Bee why drawing oat purchase money while retaining 
possession of the property decreed shoald be treated asequiyalent 
to an aoeeptanoe of plaintiffs' rights under the decree, so as to 
debar the appellant from prosecuting his appeal. If the jadg« 
ment-debtor draws ont money deposited for his benefit and likewise 
retains possession, it is open to the decree-holder to compel the 
judgment-debtor to part with possession. But receiving money 
without delivering possession has no bearing on the jndgment- 
debtor's right to conduct his appeal which otherwise he is legally 
entitled to prosecute. The two positions are not entirely 
incompatible. A judgment-debtor's position in a pre-emption 
decree is in reality passive so far as receipt of purchase money is 
conoemed. He cannot execute the decree and compel the pre- 
emptor to pay in the money if the latter chooses not to pay. On 
U&e other hand, he may any moment be called upon to receive the 
money and part with possession of the property to the pre-emptor. 
If the judgment-debtor then draws out the money without part- 
ing with possession he only anticipates what might take place any 
moment under legal compulsion. By drawing out the money 
b^rehand he does not forfeit his legal right to appeal 
against the decree, nor thereby incurs a disability to have 
his appeal dismissed as if his legal rights were lost. Even if 
it were held to be inconsistent with his right to maintain the 
appeal it would only be just to give the appellant an option 
to select one of the two alternativef*. There are obviously no 
considerations of estoppel applicable to the case, and it is 
inconoeivabie what legal ground can prevail or apply to 
lead to so fatal a result. The principle laid down in Bawa Lehna 
6imgh v. Jagan ttath (^) does not appear to be applicable. It 
was a converse case and an inst^noe of forfeiture of his 
right before suit by a pre-emptor. Moreover it was 
focmd in that case that the pre-emptor mithont retervation 
of liti right had demanded the mortgage-debt fiom the 
Teudee which was treated as necessarily affirming by 
implication that the sale was valid. The only other case, 
Muhammad Khan y. Fida Muhammad ('^, with a possible 
beating on the question at issue as against appellant has 
reoently been over-ruled by a Full Bench decision in Baghu 
Mai V. Bandu (^j. There existed therefore no grounds 
equitable or legal for accepting the preliminary objection, 
wittch as already noted was accordingly disallowed at the 
kearing. ^ 

(») TfS P. B,, 1S«8. (•) «3 P. B., 1868. 

(•) 81 1. B., 1007. 



^g dtlLlJUDGMBNTft-ITo. 16. [RfcOORi* 

I have already aet out the gist of the groands of appeal 
filed by the appellant. This is an appeal admitted nnd^ 
Section 70 (h) (iv), and it is obvious that the appellaht is 
not entitled to qnestion the validity or sonndness of the 
findings offsets given by the lower Appellate Court. He is 
therefore not entitled to argue that the transaction sued 
upon is a mortgage and not a sale, and that Kticha Ghilsari 
Shah where the property is situate is a subdivision of the 
town of Lahore and is not a part of MohaUa W&ohhowali 
which is found to be a recognised subdivision. We accord- 
ingly restricted the argument in appeal to the sole question 
whether a custom of pre-emption by vicinage was proved to 
exist in Mohcdla Waohhowali. The pleader for appellant admit- 
ted that it was a pure question of fact whether Kucha Gulzari 
Shah was a subdivision or formed part of MohaUa Wachhowali, 
but he contended that the question whether the transaction 
in suit was a sale ot a mort<gage was a question t>f law as 
it depended on an interpretation of the terms of the deed in 
suit. If the question were whether according to its true 
interpretation, the transaction represented by the deed was 
a sale or a mortgage, it would be a question of construction 
of the deed and hence a question of law. But the question 
raised by the plaint and found against appellant by the 
lower Courts is not that the document executed by the 
defendant mortgagor is a sale deed, but that the real transaction 
entored into by the defendant parties was intended to be a 
sale and not a mortgage. To prove this assertion the terms of 
the deed were referred to as relevant evidence, but no question 
was raised as regards the proper interpretation of theae 
terms which are plain and involve no ambiguity or difficulty 
requiring any legal construction. The question raised and 
decided therefore is a question of fact, and it did not necessarily 
and entirely depend upon the terms of the mortgage deed or 
their interpretation. The same view was taken in Budha Mai 
V. Otdah (i) and another unreported case No. 163 of 1896, 
which is referred to in it. The matter was not discussed 
in Tikaya Earn v. Dharam Ohand (') which was quoted 
to the contrary, and we see no good reason to follow it. 
Moreover the correctness of this view held in that esse 
was subsequently doubted by one of the Judges constituting 
the Division Bench as explained in Budha Mai v. Gulab (^). We 



(•) tQ P. «., 1S99. (1) 4S P. E., IW5. 



PiBT. 1907. J CIVIL JUDQMKNTS-^No. l«. 79 

therefore held at the bearing that the appellant was no^ 
entitled to argne whether the transaction in flnit was a 
mortgage and not a sale, and restricted his argument to 
the qnestion of local onstora. It is necessary to refer to the 
following facts as haying a direct bearing on this question. 
The house in dispute is situate in Kucha Gblzari Shab which 
IB found to be a part of MohaUa "Wachhowali, a well 
recognised sub-division of the city of fjahore. The plaintiffs' 
house adjoins the house in suit along side, with windows opening 
on it, but with its door towards the back. The defendant also 
owns a house and resides in the mohalla but his house does not 
adjmn the bouse in suit, and is a long way from it. According 
to the pleas it was asserted that Kucha Gnlzari Shah was 
itself a sub-division, but this plea has been overruled by the 
lower Courts, and the simple point for consideration now 
is whether plaintiff has succeeded in proving a custom of 
pre-emption by vicinage in ^tohaUa Wachhowali inside which 
the house in dispute is found to be situate. The lower 
Appellate Court has referred to the following six cases as 
proving the custom : — 

1. 8antY»Kt$hen0hand. This case was decided in 1876, 
and was about a bouse in Kucha Mehtian, Guaar Wachhowali, 
and a decree was given. The house is the one coloured green and 
marked B on the plan now put in. It has an entrance from 
hueha Guluuri Shah, but the main entrance is said to be on the 
other side in Kucha Mehtian. 

2. Case of Bishambar Dm v. Bishambar Das and Narpat, 
Thie was for a house in Shisha Moti, Mohalla Wachhowali 
and was decided on 27th April 1885. It was held that the 
ouitom of pre-emption existed in Wachhowali. 

This is not shown on the plan. 

8. The case of ShibdialY. 8adtq Alt Shah, decided on 31st 
August 1895. 

The house was situated in kucha Maddi Shah, Wachhowali. 
It was held that the kucJia was not a sub-division, but that it 
formed part of the sub-division of Wachhowali where the custom 
of pre-emption prevailed. 

4. Case of Bam Sahai v. Qhanna and others, dedded on 
2lBt December 1897. It was held thi^t the custom previ^iled v^ 
WaoUbowftlL 



flll^ OiyiL JUDOMmfn^^o.) M. [ 



5. Gaae^ IMi(m LoIy. Dma Nath. This omb wh^ in 
regard to a- bouse in Eueha Tilliav, Waohfaowali, and was deoid«d 
by arbi^n^iion. 

6. C/ase of Bai Bahadur Prem Nath v. Jtwa^ decided on the 
4th October 190J , and in the Divisional Oonrt on 26th February 
1902. It was held that ths custom prevailed in Wachhowali. 
This hpQse is ohown in the plan, and is situated in a kucha 
jnst beyond that of Gnlsari Shah. 

The only case oit^ to thecontravy was Bam Mai y ^altg 
Raniy deeided on 25tli' April 1S98, relating to a housein .STuo^ 
%i1a Mai*, MohaUa Wachhowali. This caae^ however^ does not 
snppori the de£«&dant'8 contention, but rather supports the view 
that ovstom of preemption by vicinage does prevail in tL& 
mokaU'i* It was held by the Court that custom of prs-emptioQ 
does prevail in U^haUa Wachhowali, but that plaintiff whe* 
owned an opposite ho Aseu was unable to prove that by custom he 
had a snperior riglit against defendant vendor who also owned a 
house opposite tbe back of* the house in suit. The pleader for 
appellant was unable to say that the instances quoted by thot 
lower Appellate Court did not prove the existence of custom 
of pre-emption by vicinage in Mohalla Wachhowali or that the 
particulars given by the Divisional Judge in each instance were 
not correctly stated. He, however, arg'.ied that it was not proved 
that a person owning an adjoining house had by custom a right 
saperior to a resident in the mohalla* He was unable to say 
that in the six instADces the vendees were not residents in the 
huok^ or weveistarangins. A* a matter of f aeikia.tbe«ixth instance 
theiacto. were eyan^ aiioh strongep, than in the jMreaenli caaev Tba 
de&ndant vendee owned a house oppositox the- house sold^ whil#ii 
plaintiffs* house aotuaJlj adjoined it, and it was held thai, 
according to custom as found in Mokaila Wachhowali, the owner 
of the adjoining house had the right of pre-emption and not the 
vendee whose hous^waa situate opposite the hooaa sold. This 
is an instance exactly in point, and leaves no room, for doubt 
that by custom plaintiff is entitled to pre-empt as held 
oooearrently by the lower Oourte. The pleader for appellant 
refevred in arguoH^nt to certain cases where by local custom a 
person owning a hoase on the back was not held entitled- to pre- 
empt, but thoM Otfrses are not eipplicable te the citxsumstances of 
the present suit. The plaintiff having proved the existence of a 
oustom of pti9-omption by vicinage is entitled to succeed as 
owning an adjoining house against a person whose hooae doea 



Few. 1907. ] W^U JIXMM IMt^Na IT. ffi 



notadioia. Tbe eircQSMtance that the deteidaat aWownb a 
house in the kucka^H long, way from the beosein dis^te has do 
bearing on the yalidity of the plaintifia' claim. It would be for 
the defendant to proye, as he alleges, that residence or owning a 
hoose in the mohaUa not adjoining the honse sold is a necesstity 
inoidenoe or ingredient of local custom. Bj Section 11, Panjab 
Laws Act, the plaintifi mast show the oircamstaoces under 
whioh by local custom he is entitled to exercise the right 
of pieoemption* And he proves that by local custom a peeson 
owning an adjoining house is entitled to pre-empt against a 
person whose house does not adjoin. But it is not further 
naoesaary f or him to prove that mere residenoe and owning 
property in the mohaUa not adjoining the house sold also foruiB a 
neeeesavy element for determining local castoro. If the 
defendant relies on any such incidence as relevant or having a 
bearing on the question of custom the emus is on him to prove id, 
the plaintifFs' case on basis of vicinage being complete without 
it. 

There is not even the slightest pretence for alleging that 
defendant has discharged the onus which lay on him or hae 
succeeded in showing that owning property in the mohaUa un- 
connected with the hoose sold gives an equal right of pre-emp- 
tion. We, therefore, concur with the lower Courts in decreeing 
plaintiffs* suit, aud dismiss the appeal with coats. 

Appeal dismissid. 



Ho. ir 

Before Mr. Justice Beid, 

TOP AN DA8,— (Objectob),— APPBLLANr, 

Versus 
JESO BAM,— (DiFKHDANT),— RBSPONDKNT. jAwtitAtt 8ini. 

Civil Appeal No, 828 of 1906. 

Land Acquisition Act, 1S94, Ssciion 81— ArguMttion of mortgagsd 
ptopsrty for public purpoicg — Paymsnt of compemation'^Person tntsr, 
sstsd. 



Held, that where the property acquired for a pnbUo pnrpoea i 
the Land Acquisition Act forms part of an estate which has heeii 
mortgaged for an amount larger than the amount awarded as oom- 

penvatioQ for the aoqoisition the mortgagee is entitled to receive the whole 

iC 4he meoejr so awaided. 



82 OlVIt- JUDGMBNTS-Na 17. [ Rbcord 



Appeal from the decree of W. A, Harrii, Bsqutre^ Ditnnonal 
Judge, MuUan Division, dated 6th June 1906. 

Darga Pas, for appellant. 

Harris, for respondent. 

The jadgment of the learned Jndge was as follows :— 
30th Novr. 1906. Rbid, J.— This is an appeal from an order under the Land 

Aoqoisition Act, awarding to a mortgagee of the land 
acquired, a sum out of the compensation awaided proportionate 
to the area scqniied ss ccmpnred with the aifa mcit- 
^aged. Connpe) are agreed that the mortgaged area ia 
66^ hichas and that the area acquired is approximately 
6 highasy and that the compensation awarded for the latter is 
Bs. 410*6-0. Counsel are not agreed as to the amount due 
nnder the mortgage, which is stated on the one side to he about 
Bs. 800 and on the other to be about Rs. 1,600. 

In any case Re. 410-6-0 for 6 bighcu is out of all pro- 
portion to Rs. 1,600 for 66 bighas. 

The authorities cited are (]) Oostohehary Pyne v. Shib 
Nath Dut (^), a case in which a patnt taluh had been sold 
for arrears of reyenue and the mortgagee thereof claimed 
sufplus sale-proceeds. The Court said : ** We think that the 
** proper view to take of the matter is to regard the surplus 
" sale-proceed as the shape into which the mortgage security 
** is oon verted and, as before sach eon version the security 
** could not be split up into parts and the mortgagee was 
"entitled to realise his money out of the whole of it, its 
" oouversioa by sale into money ought not to aSeot his rights 
" in this respect." 

The ruling was under Section 73 of the Transfer of Property 
Act, but the principle laid down appears to be applicable to the 
present case. 

(2). Ohose on Mortgages, Edition 3, page 332-3, in which 
authority is cited, for the rule that, if the mortgaged property 
is converted into money under circumstances which prevent 
the mortgagee from following such property, the security 
will attach to the purchase money. The author adds that as 
the security of the mortgagee is indivisible the charge would 
fasten upon the whole proceeds and not on any particular 
part. 

(«)1. L. B., IX OoZc., 241, 



Wmn, 1907. ] OIVUi!JU0GMBNT8-No. It. gg 



(3). Ba8a Mai v. Tajammal Buaain (M, which is not 
in point, the mortgagee's claim having been dismissed on 
the ground that he had not applied the Land Aoqaisition 
Act. 

(4). Armugam ▼. Sivagnana, (*), in which it was 
held that the sale of land ander the Act does not 
effect any destraction of the property so as to give the 
mortgagee a personal remedy against the mortgagor, the 
e&ct of the sale being to change the nature of the security 
and to substitute for the property mortgaged the compensation 
awarded. 

The mortgage was effected on the 7th September 1886 

the term being 16 years, so that it is ^nmi/aote redeemable 

at the present time and the appellants, assignees of the 

mortgagee, took steps under the Land Acquisition Act to assert 

their claim. 

At Ohoee on Mortgages, Edition 3, page 346, American 
authority is cited for the rule that, where damages are awarded 
nnder the Land Acquisition Act for injury to mortgaged 
premises the mortgagee will be entitled to the compensation 
money. " The sum awarded arises from or grows out of 
*^ the land, by reason of the injury which has diminished 
** its yalue. In equity it is the land itself '*. Bank of Auburn 
Y. Boberts (*). Section 82 of the Transfer of Property Act 
embodies the established rule, that, where several properties 
are mortgaged to secure one debt, such properties are, in the 
absence of a contract to the contrary, liable to contribute rateably 
to the debt secured by the mortgage. 

In re Stewart's Trusts (^), it was held that when money has 
been paid into Court by reason of roal estate having been 
taken under the compulsory powers of an Act of Parliament, 
and remains in Court, it is to be considered as money or 
personal estate in the hands of the Court impressed with the 
trosts of the real estate. 

In a caqe in which land was acquired at a date on which 
a considerable portion of the mortgage term had got to run 
and the profits are to. be set off against the interest on the 
mortgage money, apparent hardship might be caused by 
holding that the whole compensation mpney should go to the 
mortgagee, but no such consideration arises in this case. 



[^1 i' f 2-' ^^ ^"^ ^^ (•) 442f. J. 198, /ofwet. 8. 708. 

(•) /. L. Jl.. im Mad^ 32U (♦) U I. J. (A. 5.), 869. 



&4 OIVIL JCD<ni«BrT8-N#. 18. (lULKCmiD 

A mortgagee is entitled to take as mach security as he 
can get for his monej, and when part of the Uind mortgi^ged is 
taken from bim his secnritj is diminished pro tamto. In the 
present case the secnrity has been diminished to the exUst 
of Ks. 4 J 0-6-0, and the mortgagee is, in jpy opinion, 
entitled to that amoaat in liqaidation of the nK>rtg|kge 
debt, the indivisibilitj of the mortgage attaching itailf 
to the proceeds of the sale of part of the land mortgaged and 
the whole and each part of that land being secnrity lor the wJudie 
amonut advanced. 

For these reasons I modify the order of the Dmsmial 
Court by awarding Rs. 4.10-6-0 to the mortgagee-appellant. The 
respondents will pay the costs of this Court. 

Appeal (Mowed. 

No. 18. 

Before Mr. Justice Ghatterji, C. L £., and Mr, Justice 
Rattigan, 

BAKHSHI RAM AND OTEKRS.-CUEfaNDAKTs).— 
APPELLANTS, 
Appbllatb SiDB. i Versus 

GUMANO,— (PLAUiTiFF),— HESPGl^DfeiNT. 
CiTd Appeal Ko. 6^ of 1006. 
Bteret— Construction of decree^ Decree in favor of appellant with 



fivid, that the proper interpretation of the words "appeal dismissed 
or accepted with oobts* is that the eosts of the Appellate Coart alone are 
awarded and not that of the Courts below. 

Ramji Dae v. Charanji Lai (^ followed. 

Miscellaneoits first appeal from the order of T. P. Mlis, Esquire, 
District Judge, Delhi, dated 2bth May 1906. 

Likchmi Narain, fur appellants. 
Gopal Chand, for respondent. 
The judgment of the Conrt was deiiyered by « 
jQ^ BiflrnGAN, J. -The plaiatitf's suit was decreed with costs by 

' • ihe Distwot Judge. Defendant appealed to this Court, and the 

order on this appeal was as follows : — " We hold that the suit 
*< mast Jbe dismissed, and we decree aeoordingly with costs. 
" Appeal AQi^tied and dsoiee of lower Conrt set aside." 



{^}ykP.R.im. 



PiBT. 1907. ] CIVIL JUDGMBNTS-No. 18. 3$ 

Sabsequently the decree-holder (defeodant) appHed for 
erecation of decree a9 regards costs, and claimed that she was 
entitled, under the terms of this Court's decree, to the cofits both 
of this Court and of the District Conrt. Plaintiff objected and 
urged that the costs awarded were merely those of the Chief 
Court, but the objection was over-ruled by the order of the 
District Judge, dated 19th April'] 906. The objection was again 
preferred to the successor of the District Judge who had passed 
the order disallowing the objection, but it was once more dis- 
allowed, by order dated 25th May 1906, on the ground that the 
Judge to whom it was presented was bound by his predecessor's 
order. This decision was obvioasly correct. The plaintifE- 
judgment- debtor thereupon filed an appeal to this Conrt on the 
9th Jane 1906, but the appeal pnrported to be from the order of 
the 25th May. This was clearly a mistake as the appeal should 
haTo been from the aotaal order in the case which was that 
passed on the 19th April. This .error was pointed out to the 
learned counsel who appeared for the appellant and he admitted, 
and quite rightly, that a mistake bad been made, but urged that 
the mistake was that of the learned pleader who had filed the 
appeal. He asked that he might be allowed to file amended 
grounds of appeal, and to this request we acceded conditionally 
on his paying to the respondents Els. 16 as costs for the 
postponement of the hearing which was thus neceawitated. We 
further directed that the grounds of appeal, as amended, should 
be filed the following day. This order has been duly complied 
with, and we now proceed to dispose of the appeal on the merits. 

In our opinion the intention of this Court in decreeing the 
appeal " with costs " was clearly that the then respondent should 
pay the then appellant the costs incurred in this Court only, for 
had it been intended that the then renpondent was to pay the 
costs of both Courts, words to that effect would undoubtedly 
have been used. The decision of this Court reported as Bamji 
Das V. Charanji Lai (*), is an authority directly in point, where- 
as the ruling relied upon by the present respondent Broughton 
V. Perhlai 5e» (*), is easily distingaishable, a« the facts in the 
latter case were entirely different. But apart altogether from 
authority we would have no hesitation in holding that in a case 
where the words of the decree are opon to doubt, that construc- 
tion must be placed on the words used which does not impose a 
liability on the judgment-debtor, which is not in express and 
specific terms imposed upon him. If then an appeal is dismissed 



(>) 46 ?• K., 1877. (•) 10 W. H., 1525. 



86 CIIVIL JUDGMENTS- No. 19. [ Bicobd 



or aooepted " with ooste/* simpltdter^ the proper iDterpretation 
of the words ** with coflts" ia thattbeoosteof the Appellate Court 
alone are awarded. We aooordiDgly accept this appeal with 
costs both of this and the lower Coart. Respondent must, how* 
OTer, be credited with the snm of Bs. 16 which we awarded 
in respect of the costs of the adjournment aboTO referred to, 
unless, of course, the said sum has been already paid to 
appellant. 

Appeal aUow&cL 

No. 19. 

Before Mr, Justice Lai Chand. 

MIBAN BAKH8H,— (PunmFF),— 
PETITIONEE, 
BiraiONSiM. { y^^ 

CHIBAOH DIN,-(Dbpbhdant),— BffiSPONDENT. 
Civil Revision No. U15 of 1903. 

CivU Procedure Code, 1882, Section b2!8-^ Agreement to refer to arbitral 
tion filed in Court — Award of arbitrators set atide asvoid^Right to institute 
regular suit to enforce sw:h atoard. 

Held, that wherein prooeediogs taken nnder Section 623 of the 
Code of Civil Procedare an award is declared to be Void by the Coort 
condncting suoh prooeediogs no regular Boit to enforce each an award 
wiU lie. 

Petition for revision of the order of D. 0» Johnstone^ Biquite^ 
Divisional Judge^ Sialkot Division^ dated Ist April 1 b03. 

Ganpat Rai, tor petitioner. 

Ram Bhaj Datta, for respondent. 

The judgment of the learned Judge was as follows :— 
dth Deer. 1906. Lal Chakd, J.^-I have no doubt in my mind that the suit 

to enforce the award in this case is not maintainabla The 
award sought to be enforced was held to be void in pro- 
ceedings taken under Section 523, Civil Procedure Code. It 
is therefore a nullity and cannot be enforced in Court. 
The agreement of reference entered into by the parties could 
secure an award only by order of the Court before which 
the proceedings were taken under Section 523, Civil Procedure 
Code, but the Court refused to recognise the decision givea 
by the arbitrator as a valid award. No authority was quoted 
to show that an award held to be void in proceed- 
ings taken under Section 523, Civil Proceduro Code, could 
form ihe basis of a rogular suit. The cases quoted, v»ff.. 



r«iT, 1907. ] OITIL JCrDOMB!lTS-No. 20. 87 



Bass in Alt v. H shdar Ali (*), Oopi Reddi v. Mahanandi 
BedcU (•), Narnsayya v. Ramahadra (*), and Suhharaya v. 
Ohetti V. Sadasiva OhetH (*), havo no application. These were 
all cases of awards not obtained tbrongh the interyention of a 
Coart which, moreover, had not been Bled or could not be filed 
under Section 625, Civil Prooedare Code. Farther, the award 
flonght to be enforced by a regular suit in these oases bad 
not been declared as void in any previous proceeding. 1 am 
doubtful whether a regular suit would lie to enforce an 
award even in cases where such award has been held to be 
void on objections taken under Section 526, Civil Procedure 
Code. I am inclined to hold that such decision would be 
final. But I have no doubt that where the award subject 
of the suit was secured in proceedings taken under 
Section 523, Civil Procedure Code, and was declared to be 
void by the Court conducting such proceedings, that a regular 
suit to enforce such award would not be maintainable. I 
therefore agree with the lower Appellate Court that the 
suit did not lie in this case and reject the application for revision 

with costs. . ,. . ,• . , 

Appltcatum dtsmtssed. 

No* 2a 

Before Mr. Justice Rattigan. 
KISHEN DIAL,— (PtAiNTifF),-«PETlTIONER, 
Versus 

BAM DITTA AND ANOTHER,— (Dbfendaots),— 
BESPON DENTS. 
Civil Bevision No. 616 of 1906. 

LimitaHon Act, 1977, Section l2^ApplkQhiliiy of, to apjpUeatum under 
Section *J0 {h) of ih€ PiMJah Courts Act^ IS^^— Deduction of time requisite 
for obtaining copies of the judgment and decree of the lower Appellate Oottrt— 
SngUient eauee^Punjah Cowrie Act, 1884, Section 70 (b) (t). 

Held, that Section 12 of tbe Limitation Aot, 1877, does not apply in 
computing the periods of limitation prescribed for an application 
under Section 70 ib) of the Punjab Courts Aot, 1884, and that therefore the 
time requisite forobtaioing copies of the judgment and decree of the 
lower Appellate Court cannot be ded acted in compntiog the 
periods lud down by clause («') of Section 70 (5) of that 
Act. 

Held, aleo, that the tioe spent in obtainiog such copies which as 
a fact were receiyed by tbe petitioner long before the expiry of the 

(*) 118 £. R., 1890. («) I. L. R^ XV Mad,, 474. 

(•) /. L. R^ XV Mad., 99. i*) I. L. B., XX Mad^ 491, 



Rbvision Side. 



'88 ^^^^ JXJDGMBNTS-No. 20. [ Bicokd 



prescribed period is not a pnffioient caaee within the meaniDg of Section 
70 ;b) {i) for admitttiog an application after the ordinary period of limita- 
tioQ baa expired 

Petition for revision of the order of /. O. 3f. Bennies Esquire^ 
divisional Judge, JuUundur Dtvition, dated 29fh Augtut 
1905. 

Sheo Narain, for petitioner. 
Bam Bhaj Datta, for respondents. 
The judgment of the learned Jndge was as follows :— 

20rt Veer. 1906. Rattigan, J. — Mr. Ram Bhaj Datta, as a preliminarj 

objection, nrges thai ihiR petition for revision cannot be 
entertained under clause (h) of Section 70 (1) of the Punjab 
Courts Act (as amended), as it is time-barred, having been 
presented to this Court more than 90 days after the date of 
the decree of the lower Appellate Court. The objection ia 
well founded. The judgment of the Divipional Judge is dated 
29th August 1905, and ponppquently the latest date for the 
filine f f an application under clause (b) of the said section 
would have been the *29th November 1905, whereas the present 
application was not presented until the 2nd December 1905. 
The 27th Koven»ber was a working day, and npon it this Court 
was oren for the reception of appeals and applications. Mr. 
Sheo Narain points out that two days were occupied in 
obtaining copies of the judgment and decree of the lower 
Appellate Court, and argues that the petitioner should be 
given the benefit of this time, in which case (as this Court 
was closed from the 28th November to the Ist December, 
both days inclusive) the application would be within limi- 
tation. But the obvious answer to this argument is that 
Section 12 of the Limitation Act, 1877, is not here applicable, 
and the only question is whether the applicant satisfies the 
Court that be had sufficient cause for not making the application 
within the prepcribed period. In my opinion, there is in 
the present case no Fuch sufficient cause. The applicant 
applied for the said copies on the 10th October and was 
supplied with those copies Oti the 12th October. He bad 
thus ample opportunity to make his application long before 
the expiry of the prescribed period of 90 days. He did not do 
9o, and the mere fact that he had to wait two days for the 
copies cannot possibly be held to constitute " sufficient cause " 
for his not making the application before the 2nd December, 
the copies having been in his possession on the 12th Ooto- 
oer. 



Fmt. 1907. ] CIVIL JUDQMHNTS-No. 21. 39 



I mnst accordingly reject this application as inadmissible 
under clause (6) of Section 70 of the Act, and there is admittedly 
DO gronnd for entertaining it under clanjse (a) of that 
section. The application is therefore rejected with 
costs. 

Applicaiion dismissed. 

No. 21. 

Before Mr, Justice Robertson and Mr. Justice Lai Ghand. 

DIAL SINGH,-(Dependant),— APPELLANT, 
, Versiis 
BAKSHISH SINGH,. (Plaintiff),— RESPONDENT. 

Civil Appeal No. 71 of 1905. 



i 



Appillatb SiDl 



Cw«(ow~Fre-0mpf/on — Pre-emption on sule of residential property lately 
converted into shopn — Alteration in the nature of such property -^KhtrsL 
Ahluwalia^ Amiitsar City, 

Foundt that the cnstom of pre-emption in respect of sale of honee 
proi)erty by reaflon of vicinage exiets in Katra Abla^ alia of the city of 
Amiitsar. 

HeZ(7, that 1 he conversion of a part of n residential hon^e into shops 
and1;heir a^e for goHowne for a short period does not change the character 
of the property as originally bnilt and hitherto aaed. 

First appeal from the decree of F. Tewdall, Esquire, District 
Judge, Amritsar, dated 26^^ October 1904. 
Jhanda Singh, for appellant. 
Muhammad 8ha6, for respondent. 
The judgment of the Court was delivered by 

Lal Chand, J.— This is an appeal in a pre-emption suit 28tt Novr. 1906. 
relating to a building found to be situate iu Katra Ahluwalia, 
a well known sub-division of the city of Amritsar. It was not 
oontesded by the pleader for appellant that the custom of 
pre-emption by vicinage as regards residential houses does 
not prevail in Katra Ahluwalia. In fact the contention could 
not possibly be raised as the matter is absolutely concluded 
by the decision in Eamji Las v. Kalu Mai, decided by 
the District Judge of Amritsar ( n 21f.t May 1901, where the 
pi:eviou8 instances bearing on the question are all collected. 
This case was further followed in Kashi Mall v. Lachhmi, 
decided by the same Court on 11th October 1901. But it 
was contended for appellant that tbe property in disputs 



90 CII^^ JUDOMBNTS— No 21. C Umcom 



is not sitnate in Katra Ahlawalia, and, secondly, that, it is not a 
residential boase bat a sbop. As regards the first contention 
it was argued that the property is situate in Za^ra Har 8 a 
^Singh. This contention is, however, entirely unsupported 
by any evidence on the record. It is opposed to the 
defendant's own sale deed wherein the property is described 
as situate in Katra Mai Sevan, and it is contradicted by the 
evidence afforded by the City maps and house registers 
prepared in 1859 and 188^3. We see no reason whatever for 
discrediting these maps and registers, and therefore haye 
no hesitation io holding that the property fn dispute is 
correctly found to be situate in Kaira Abluwalia. 

As regards the nature of the property we also oonoor 
with the District Judge that it must be classed as a house. 
The District Jndge came to this conclusion after an inspec- 
tion of the locality, and he has correctly summarised the 
effect of the evidence adduced in the case as borne out by 
the following description given by him : — " The street which 
" leads from the^ corner of the building is residential in 
'< its nature. The building itself is too clearly' in its 
*' construction a house. The ground floor consists of a deorhi 
'* and a large room which some two or three years ago 
" was turned into four shops, which however at present 
** appear rather to be used as godowns. The next floor 
" has a dalan^ with three or four iothrtt and the third 
** floor is a baradari. The large room below appears to 
'* have for many years been used as a store-room for 
*^ yarious shop-keepers, bnt the rest has been lived in. 
" Twenty years ago it was occupied as a residence by 
** Lorinda Mai and his family who had been there seven 
'* years. Since then it is not clear that it has been occupied 
" by a family man/* Moreover in the several deeds exe- 
cuted at various times relating to this property it has 
uniformly been described as a haveli excepting in one 
instance where the lower part is described as consisting of 
four shops. Thus in the sale deed, dated the 23rd February 
1881, the building is described as a haveU 2\ stories high. 
Similar description is contained in the award, dated 4th 
January 1886, and in the mortgage deed, dated 9th May 

1901. But in the subsequent mortgage deed, dated 3rd August 

1902, only ten months prior to the sale in question, the 
property is described as a haveU 2| stories high' having 
under it four shope. It is therefore clear as found by the 



190». ] CIVIL JtTDGMBNTS-No. 81. 



District Judge that the shops have only recently been 
oonstrncted excepting one 'which was nsed as his ware- 
hoDse by an opium contractor, bnt further there is no 
evidence that the rooms on the ground floor which have 
recently been oonTerted into shops are actually used for 
business as shops. These are still being used as ware-houses 
as is evident from the evidence of defendant's own wit- 
nesses, and under the circumBtanoes it is not permissible 
to hold that any portion of the property has unmistakably 
been converted into a different dass of property so as to let 
in the application of a different rule of pre-emption by custom. 
Ab observed in Mussammat Nur Jahan v. Aziu^ud-dtn (^), 
" before a particular property can be held not to be 
** governed by a rule of pre-emption which is applicable 
** generally to other propeities in its neighbourhood on the 
** ground of its distinctive character, such character must be 
*^ well-marked and recognised. Proof that the custom of pre- 
** emption applies to residential houses is not suflBcient to 
^^ show that it extends to shops in a bazar, but the 
** oeonpier of a dwelling house doos not necessarily convert 
^ it into a shop or a cluster of shops so as to make the 
** role of pre-emption inapplicable by carrying on business 
" in it for a time. " Similarly in Nawal Kishore v Amir 
Khan ('), the properties were not held to have lost their 
character as residential houses when the principal use to 
which the properties were put seemed to be that of 
residence though business might be the object of such 
residence. In the present case there are no indications ou 
the record that the rooms ostensibly converted into shops 
were actually used as shops and therefore the property in 
suit must still be classed as a house as originally built 
and hitherto used. It is not sufficient to change tbe 
character of the building as a residential quarter that for 
some time past it has been occupied only by casual 
tenants, or that portions havo been used as godowns by 
persons who held their bosiness shops elsewhere. We there- 
fore hold that the property in suit is situate in Katra 
Ahluwalia, and is primarily a residential house and as such, 
subject to custom of pre-emption by vicinage found to 
prevail in the sub-division. We accordingly uphold the 
decree of the lower Court decreeing plaintiff's claim and 
dismiss the appeal with costs. 

Appeal di8m%ss$tL 

(0 108P. B,li96. O) 122 P. B^ 1896. 



91 



92_ ^^I^ JUDGMENTS— No. 22. [ Bbc6ed 



A??BLLATI SiDB. 



No. 22. 

Before Mr. Justice Rattigan and Mr. Justice LalChand. 
UMRA AND OTHERS,— (Plaintiffs),— APPELLANTS, 

Versus 

GHOLAM AND OTHERS,— (Defendants),— 

RESPONDENTS. 

Civil Appeal No. 122 of 1905. 

AUenation — Alienation of ancestral property by sonlesi proprietor"^ 
Right of after-born revenioner -to contest aJ,%enQtion beyond time — Legal 
disability — Limitation Act^ 1877, Section 7. 

Held, that a reversioner bom subsequent to the date of an alienation 

which had been* made in his father s lifetime cannot avail himself of an 

extension of time under Section 7 of the Indian Limitation Act to 

enable him to contest the validity of such an alienation. 

Further appeal from the decree of 7. J. Kennedy, Esquire, 

Divisional Judge, AmhaUa Division, dated 28th April 1903. 

Harrif>, for appellants. 

Miran Bakhsh, for respondents. 

The jadgment of the Coart was delivered by 
9^ June 1906. Rattigan, J.— By deed of gift, execated on the 

5th November 1881 and duly registered a few days 
afterwards^ one Lalla donated part of his ancestral estate 
to Mussammat Chaubri, the daughter of his deceased brother, 
Saida. On the 10th Augast 1883 the donor had mntation of 
names in respect of the said propei ty, as also of the rest of hia 
estate, effected in f avoor of the donee, and at the time of matatiou 
he stated that the whole of the property had actually been 
gifted by him to Mussammat (Jhaubri two years previously. 
Gbnlam, the father of plain tills and nephew of Lalla, was alive 
at the time both of the ezecotion of the deed of gift and of 
mutation, and, it may be added, at the time also of the institu- 
tion of the present suit, but he made no attempt to challenge 
the validity of the alienations in favour of Mussammat 
(Jhaubri who remained in undisturbed possession of the said 
property until her death shortly before suit. 

Flaintifib, who are the gtand-nephews of Lalle, have now 
sued for a declaratory decree to the efiect that the Said gifts 
in favour of Mussammat Chaubri were invalid by custom ; and 
bhall not affect the reversionary rights after the deaths oi Lalla 
and Ghulam. They claim that thtir suit is within time by 
virtue of the provisions of {Section 7 of the Limitation Act, three 
of them being still minors and the fourth having attained 
his majority within three years of suit. The Court of first 
instance dismissed the claim on the grounds (1) that plaintifls, 
hayiDK been born after th« dates oi th« aiienationgi had no Iogus 



ItoT. 1907. ] OITIL .rUDGMBNTS-No. S2. 93 

standi ; (2) that the snit was barred by limitatioo owing to their 
father, Ghnlam*0 omisaion to eae within the period of limitationi 
and (3) that the gifts were valid by the enstom of the tribe 
to which the parties belong. 

The Diyisional Judge on appeal upheld the decree of the 
first Court, but on rather different grounds. He agreed with 
the Munsiff that plaintiffs bad no loeuB stattdi^ the^ not haying 
been in existence at the date of the gifts, but the main ground 
on which he disroissed their appeal was that '* though their 
" father's failure to sue did not deprive the sons of their right to 
*' fue, yet limitation began to run against their father from the 
*' date of possession by the donee in the first place, and af terwardsi 
*' when the gift was mutsted, from the date of mutation, and as 
" the minors were not alone entitled to bring the suit^ and their 
'* interest could have been protected by their father, limitation 
" is not saved for them by the operations of Section 7 of the 
" Limitation Act." 

Plaintiffs have preferred a further appeal to this Court and 
we have heard a good deal of argument on various points. We 
do not, however, consider it necessary to decide whether 
Ghnlam's acquiescence in the alienations is or is not binding on 
his sons, or whether the gifts were valid by custom, as we 
are clearly of opinion that the suit is time-barred. 

The cause of action in respect of the right to impeach the 
gift by Lalla accrued, as regards the first gift, in 1881, and as 
regards the second gift, in 1883, and time began to run from 
those dates respectively. Time having thus begun to run, the 
subsequent birth of a reversioner would not stop it (Section 9 
of the Limitation Act ; and see Jivraf Qhtdah Ohand v. Babaii 
Apa Khadake (i), and 8ookh Moyee Ohowdhrain v. Baghubendro 
Narain Okowdhry (*). A reversioner born after an alienation 
has been made is under oei'tain conditions undoubtedly 
competent to contest its validity, Jowila v. Hira Singh (') but 
he can only do so if the period of limitation had not expired 
before the date of his birth, and his suit is brought within the 
period prescnibed by law. He cannot, if born after the c^iuse 
of action has already accrued and time begun to run, claim an 
extension of time under Section 7 of the Limitation Act. Re- 
garded from this point of view, the present suit, which was not 
instituted till August 1902, is obviously barred by time. 
We accordingly dismiss pluntiffs' appeal with oosts. 

Appeal diimiiied* 

(») I. L. a, XIII Bern., 68. (•) 24 W. ff., 7. 



94 



CIVIL JDi)GMKNTS— No. 28. . t »■«»• 



APPBLLiTS SiDB. 



No. 23. 

Before Mr, Justice Robertson and Mr. Justiee^ Shah 

Din. 

HIRA,-(Plaiotiff),— APPELLANT, 

Versus 

KARAM KAUB AND OTHERS,-- (DiFEMDAim),*- 

RESPONDENTS. 

Civil Appeal No. 747 of 1906. 

CuBtom—AU'enation^ Alienation hy 8onle$t ]Drof>rM(or— Locus standi o/ 
the reversioners of the eighth degree to contest »uch alienoHon—Eindn Bhat 
Jats of tahsil Raya^ Sialkot District, 

Found, that amotpg Hinda Bhat Jatn of tahsil Baya in the Sialkot 
Difltnot oollateralB of the eighth degree are not entitled by custom to 
contest an alienation of his aocestial estate by a childlees proprietcv as being 
made without necessity or consideration. 

Further appeal from the decree of W. Ohevisy Esquire, Dimsion* 
al Judge, Sialkot Division^ do ted 17th June 1905. 
Shadi Lai and Nabi Bakhsh, for appellant. 
PeBtooji Dada Bhai, for lespoDdentB. 
The judgment of the Court was delivered by 

2nd Jany* 1901* Shah Dm, i.^^Mussammat Karam Kaor, widow of the 

deceased Jhaiida, is on the leoord, and has been duly served 
with notice of the date of hearing. 

Only Mussammat Bndhi, one of the vendors, has not 
been served, bat she is not a necesbaiy party, and the case 
can proceed. This judgment will also dispose of the connected 
Appeal No. 7^ of 1906. 

The parties are Hindu Bhat Jats of tahsd Baya in the 
Sialkot District. The sole qaestion for decision in this appeal 
is whether among the. ti-ibc to which the parties belong an 
alienation of ancestral laud made by a childless proprietor can 
be contested by his coiiaterslH who are related to him in 
the eighth degree according to the method of computation laid 
dowu iu Ladhu v Daulati (^). Both the Courts below have laid 
upon the defendants (vendees) the onus of proving that the 
plaintiffs, the leversioners of the vendci 8, bad not a Zoctis stands 
to impugn the sales in dispute, and have both ai lived at 
the conclusion that the onus has been fully discharged. 

(I) ii6 F. K., isyo. 



FiHer^ 1907, ] ClVlL JUDOMBNTS-Na 2Z. 95 

The plaintiffd appeal to this Ooart and on their behalf 
we have heard the case argued at some Idngth by Mr. Shadi 
Lai. After giving our veiy best oonsideratioa to the arga- 
ment of the learned ooansel, we are anable to hold that the 
decision of the lower Appellate Court is erroneous, we have 
grave doubts whether under the circumstances of this 
case the onus was rightly thrown on the defendants of 
proving that the plaintifiEs, so distantly related to the vendors, 
had not a loou$ ttandi to object to the alienations in question^ 
bnt even if the onus is considered to have been correctly 
placed we think that it has been, upon the materials 
on the record, amply discharged. The oral evidence in the 
case is admittedly of no value ; and the learned counsel for 
the appellant contented himself with simply referring to the 
documentary evidence to which reference has been made by 
the Divisional Judge with a view mainly to distinguish from 
the present case the three judicial decisions on which the 
Divisional Judge relies. The distinctions sought to be drawn 
between those precedents and this case are not, howevert 
in our opinion of much consequence, and in any ease do not 
serve to show that the said instances are not relevant to ihe 
present enquiry. 

The first instance relied on by the Divisional Judge 
rehitee to this veiy village, and it is noteworthy that in that case 
it was the present plain tifiE who sued to contest an alienation 
made fay a widow. The Subordinate Judge held on 26th May 
1890 that the plaintiffs, who, it seems, were related to the 
alieno'rs husband in the 8th, 9th and lOth degrees, were too 
remote to have the power to object to the sale in suit, 
and on appeal this decision was upheld by the Divisional 
Judge. 

The secdnd instence related, it is true, to another 
village, but it was a village situate in the Raya tahnh 
There the plaintiffs were related to the vendor in the lOth 
degree. A pretty foil enquiry appears to have been made into 
question of the Unma ttandi of the plaintiffs, and as a result 
the Divisional Judge held in a considered judgment on 16th 
August 1899, that they were too remote collaterals to be oompe-J 
tent to object to the alienatioa in dispute. 

The third instance is one of great importence, as the final 
decision in that case was given^ by this Court and is pnbKehed 
BANaihaSinghY. Mohan Singh i^). This is the latest decision 



(*) t3 P. B., 190f. 



96 OIYIIi JUDGIIBKTS-No. 24. [ 

by this Court relating to tbe qneetioD of the locus ttandi of 
distant collaterals among Jats of Sialkot District to impugn 
an alienation made by a childless proprietor, and we have no 
hesitation in following it in this case. 

Althongh there the parties were Ghaman Jats of the 
Sialkot tahsilf that circamstance alone ist we consider, in- 
sufficient to distinguish that decision from the present case, 
especially in view of the fact that Htwaj-i-am of 1865, a copy 
of which is npon the present record, would seem to apply 
to Bhat Jats (though not specifically named as a separate tribe) 
equally with Qhuman Jats. 

Taking into consideration the above instances in conjunction 
with the entry in the Eiwaj4'am of 1868, which from its 
relevant clauses seems to view with disfavour the remote 
collaterals' right of objection to a childless proprietor's aliena* 
tion and considering also the present constitution of this 
particular village which, as the lower Appellate Court observes, 
shows unmistakably that the original trivialities of the proprie- 
tary body have been very much loosened, we hold, in agreement 
with the lower Appellate Court, that the plaintiffs have no 
heuB itandi to contest the sales in dispute. The appeal 
accordingly fails ; and is dismissed with costs. 



No. 84. 
B$fore Mr. JimHcs Johnstone and Mr. Ju$tice Shah Din. 



BiriMMCi SiDi 



i 



FAEIBIA AND OTHERS,— (Ditcndants),— APPELLANTS, 

Versus 

DHANI NATH,—(PLAiKTiff),— RESPONDENT. 

Civil Reference No. 70 of 1906. 

Jurtsdietion of CivU or Bevenus Cowrt-^ Punjab Tenancy Act, 1887, 
Sntion 100 and Section 77 (8) (dy- Contents of plaint and plaintiff's 
allegatfons. 

Plaintiff soed for Rs. 6, valae of trees oat by defendants on land alleged 
to be plaintiff^a with whioh defendants had no oonoem whatever. 
Defendants pleaded that they were ooonpancy tenants and so entitled to the 
trees, 

Bsldf that the tnit was one for a Ciril Ck>nrt, the test being the contents 
of the plaint and of the allegations of the plalntifl. 



1«07. ] CIVIL JDOGMRNTfl— No. 24. 97 



Held, alBO» in view of the wording of Section 77 (3), Punjab Tenanoy 
Act, 1887, that the Civil Conrt could not take cogpiizaoce of the defendants* 
plea that they were occopaocy teoaote, but must ijrnore that plea, 
leaving defendants to any remedy that might be open to them by suit in the 
BevaDue Court. 

Okanaya v. Basan Mai (' ) nod Asa Nand v, Kura (»), referred to. 

Oase referred hy Lala Kesho Dat^ District Judge, Jullniidur, on 
^\st August 1906. 

Sheo Narain, for respondeDt. 

The jodgment of the Conrt was delivered by 

Johnstone, J.— In this case plaintiff saed defendants in I2th Deer. 1906. 
the Court of the Mansiff of Phillonr for Rs. 5, the valae 
of the branches of a tree cut and removed by defendants. 
Plaintiff's oaae was that the land on which the iree stood 
was his and the tree his, and that defendants had no 
concern with either. Defendants pleaded that they were occa- 
paaoy tenants of the land on which the tree (tood and so were 
entitled to take the aforesaid branches. The Mnnsiff drew np 
an i^sae — Are the defendants occnpanry tenants of the land, 
and on what gronnd P— and after a long dincasHion of it 
held that defendants had not proved it. He also found 
that defendants had not proved that they were owners of 
the tree by virtue of having planted it. 

An appeal having been presented by defendants in the 
Conrt of the District Judge, that o£Bcer makes a reference 
to this Court under Section 100, Punjab Tenancy Act, asking 
that the decree of the Mnnsiff may be registered as that of an 
Assistant Collector of the Ist grade at Jullundnr, and giving 
his reasons at length ; and this reference has been sent to a 
Division Bench by Rattigan, J., before whom it was first 
laid. The learned Judge expressed the view that defendants' 
plea stated above could not properly be gone into by a Civil 
Court (in view of Section 77, (3), (i), Punjab Tenancy Act) , 
that at the same time that plea could hardly be ignored as 
was done in Ohanaya v. Basan Biol (i) and Asa Nand v. 
Kura (')) and that thns the suit should be held as one triable 
only by a Bevenne Court. 

After hearing Lala Shiv Narain for plaintiff and giving 
the matter our best consideration, we are unable to hold that 

(*) 96 P, E^ 18m. (•) U P. a, law. 



98 CIVlIi JDDGMBNTS-No 24. [ B«J01» 

the suit is one for a Revenue Court. The important v/ tds^ 
in Section 77 (3) of the Tenancy Act are :— 

" The following suits shall be instituted in and heard and 
"determined by Revenue Courts, and no other OouH shaU 
" take cognizance oj any dispute or matter with respect to which 
** uny such suit might be instituted : — # ♦ ♦ » # 

'* (d) Suits by a tenant to establish a claim to a right 
of occupancy." 

With this we must read Section 100 (1) (a) of the Act 
which sets forth thus the circumstances in which a Civil Court 
shall refer the question of jurisdiction to this Court ; that is to 
say— 

" 100 (1). In either of the following cases, namely : — 

" (a) If it appears to a Civil Court that a Court under 
'* its control has determined a suit of a class mentioned in Section 
^'77 which under the provisions of that section should have 
"been heard and determined by a Revenue Court." 

It is settled law that ordinarily indeed, virtually always, 
the jurisdiction is determined by the plaint and the allegations 
of plaintiff, and that in this connection the pleas of the defendants 
are immaterial. Here plaintiff's case as put by him is clearly of 
civil nature — taken by themselves, his allegations can be brought 
within no clause of Section 77 of the Tenancy Act. Thus the 
suit as laid is not a revenue suit. But it is suggested that the 
words in clause (3) of the Section, which we have underKtied 
above, prevent the Civil Court from taking cognizance of the 
claim of defendants to occupancy rights, and so the suit must 
go to a Revenue Court for trial. In our opinion this is unsound. 
We agree that the occupancy rights' question cannot properly^ be 
heard and determined by a Civil Court, but in our opinion the 
result of this is not that the fundamental rule stated above as 
to the materials a Court should look at in determining the 
question of jurisdiction should be departed from, but that the 
Civil Court should simply isfnore the plea which under the law 
it cannot take cognizance of ; and the wording of Section 100 (1) 
(a) quoted above confirms this view, inasmuch as it does not 
contemplate transfer of a decree from a Civil Court to a Revenue 
Court unless the «tft^ itself was one that should, under Section 
77, have been heard and determined by the latter kind of Court. 
We are also supported in our view by the two rulings noted 



fMt...l907. ] 



Cmii JUDGMBNTB— Na 25. 



99 



No doubt the result at first sight is somewhat anomalous, 
-for it is this that defeDdnnts' sole plea is ruled out and plaintiff 
(presumably) must succeed, while defendants are left to sue in 
a Revenue Court separately for establishment of their alleged 
$tatus. Whether, having succeeded there, they could by any 
process get the decree in the Civil suit cancelled or not, or could 
recover from plaintiff any snm» paid by them under that decree 
is not for us to say. Nor need we say whether the proper 
course for the Civil Court in a case like thin is to keep the suit 
pending until the Revenue Court has decided the question of 
oocupunoy rights. Whether defendants have a remedy or not, is 
sot for us to decide here. Even if they have not, the 
dreumstance cannot affect the question of jurisdiction now 
before us. 

For these reasons we must decline to pass the order 
suggested by the learned District Judge. He should hear the 
appeal according to law, bearing in mind that defendants* plea 
as to occupancy rights must be ignored. Papers returned. 



No. 25. 

Before Mr, Justice Johnstone. 

BISHAMBAR DAS AND OTHERS,— PETITIONERS, 

Versus 

UDHO RAM AND OTHERS,— RESPONDENTS. 

Civil Revision No. 198 of 1905. 

CivU Procedure Code^Esoecution of decree^Appeal under Section 688 
(16), Civil Procedure Code—Sectione 811, 312, Civil Procedure Code, 

Meldf that, where an auction sale under a decree has been oonfirmed 
under SeotioD 312, Civil Procedure Goide, in the abseuoe of objection under 
Section 311, and an application to set aside the sale has been thereafter put 
in and dismissed for default, and a furiher applioaiion asking (a) that the 
dismissed application be restored to the file or (b) that the application 
be treated as a fresh application or (c) as a petition for reriew of the 
order dismissing the first application, has been also dismissed, no 
appeal lies against either of the orders of dismieiia], neither of which oomeM 
onder Section 588 (16), Civil Procedure Gode, or is an order under Section 
813. 

Held, ahK>, that it is illegal for a Court to set aside a sale by anotion 
onder a decree and then without further proclamation and a further regulsr 
•ale to sell ^ fo^eper^ ^ the 4eorf»-hold«r (or Any othM* penot^.. 



RlVlilDN Sioi. 



1 00 GIVIL JUDGMBNT8— Na 25. [ RMoftl>« 



Petition for revision of the order of K, B. Sheikh Khuda 
Bakhsh, District Judge, Qurdaspur, dated I9th October 1904. 

Snkh Dia), ior petitioDers. 

Gnlla Bam, for respondents. 

The judgment of the learned Jadge was as follows : — 

22iid 0(rfo6er 1906. Johnstone, J.— In this case an application was made on 

8th November 1902 by Sipahi Mai, decree-holder, for 
attachment of honse property belooging to his jadgment- 
dobtor, Abdal Rabim, minor. The decree was a small one* 
and it was raled by thn Goart that the property named 
was of unnecessarily high value, and therefore one house 
was attached, which was proclaimed and put up to auotion 
and bought by Bishambar Das, petitioner, on 13th Maj 
1904. On 16th May the decree- holder offered Rs. 250 by 
application and on 31st May one Kanhaya offered Bs. 300. 
The sale came on for confirmation on 15th June 1904, 
decree-holder withdrawing his offer, and it was confirmed 
under Section 312, Civil Procedure Code, in the absenoe of 
objection under Section 311. Next day objections were put 
in on behalf of the minor who asked for re-sale. This 
application w.as dismissed for default on 30th June 1904. 
On 1st July 1904 application was made on behalf of the 
judgment-dbbtor asking (a) that the dismissed application 
be restoied or (6) that this be treated as a fresh appli- 
cation to set aside the sale or (c) that this be treated 
as an application for review. The execution oonrt on 
9th August 1904 rejected the application, and the judg- 
ment^lebtor appealed against this rejection to the District 
Judge who ruled that the second application aforesaid could 
have been considered to be an application for review of 
the order passed on the first application; that the procla- 
mation of sale was irregular ; that loss has been caused to 
the judgment-debtor, and that an appeal lay under Section 
588 (16) read with Section 312, Civil Procedure Code. 
The learned District Judge then allowed the appeal, set aside the 
sale^ accepted an offer of Bs. 302 from the decree-holder, 
without apparently referring to the auction purchaser at 
all, and sanctioned sale accordingly. 

The auction- purchaser applies here for revision, and I 
feel constrained to allow the petition, much as I would 
like to see the minor judgment-debtor get a good price 
for the property. In the first place, the District Jndg$^ 



Wi^VU ie07. ] OIVIIi JUDGMBNTS^-Na 26. \Ql 



action in setting aside the sale and then proceeding to sell 
thA property to decree-holder without fresh proclamation 
was wholly illegal. la the next place, I can find no in- 
dication thut the proolamafion of the sftle wur irregular. 
But the most iniportaot point after all is that do appeal 
lay to the District Judge against either the order of 30th 
Jane or that of 9th Aagast 1904. These orders were not 
passed under ^Section 312, Civil Procedure Code. The only 
order under that section was passed on 15th June 1904 
oonfirming the sale. Against that order do doubt an appeal 
lay to the District Judge, but no such appeal has been 
preferred. The applications of 16th June 1904 and 1st 
July 1904 were not applications under Section 311, Civil 
Procedure Code, at all, as they both followed the order of 
oonfirraation of sale. They could at best have been taken as 
applications for review of (ho aforesaid order of confirmation. 
The District Judge seems to think that he was authorized 
to interfere on the appellate side because the second applica- 
tion might have been treated as a petition for review of the 
order on the first application ; bat this is clearly wrong, as no 
appeal lies against an order refusing to review. 

For thcFe reasons I hold that the District Judge has acted 
without .jurisdiction, and I allow this petition and set aside the 
District Judge's final order and proceedings generally, and 
restore the order of the Munsiff. Respondent will pay petitioner's 
costs. 

Application aUotoed. 

No. 26. 

Befnre Mr. Justice Chatterji, CLE., and Mr. Justice 

Battigan. 

THAN 8INGH,-(Plaintiif),— APPELLANT, 

Versus 

TARA SINGH AND 0THBRS,-(DErKNDANT8),— JAfpiluti Smi. 

RESPONDENTS. 

Civil Appeal No. 592 of 1903. 

Cttftom— Pre-empffon — Pre-emption on sale of house property^MoheMA 
Pofoehian in the city of Rawalpindi — Relevancy of instances decided 
on admission (Hone, 

FouMd thflt the custom of pre*eiDption in respeo^' of sales of house 
property based on Tioina^e exists in mohallj Paraobian otherwise known 
as vtohaOa Katta or Waris Khan in the city of Rawalpindi. 



IQ2 CIVIL judgments-No. «6. f bioobd, 



The oases in which the right ^is claimed and decreed on admission 
alone are instances of the right beiog exercised withio the meaning 
of the Evidence Act and are therefore relevant as to the existence of 
the custom. 

Further appeal from the decree of W. Ohevis, Esquire^ Divisional 
JudgCf Bawalpindi Division^ dated fkth March 1903. 

Beechey and Nanak Chand, for appellante. 
Mnbammad Sha6, for respondents. 

The judgment of the Court was delivered by 

\7tk NovT' 1906' Chattebji, J. — This is a suit for the pre-emption of a bouse 

in the city of Rawalpindi in which the Courts below have 
differed in opinion as t^ the existence of the custom. 

The Divisional Judge holds that the sub-division of the 
city in which the hoQse is situate is mohaUa Parachian 
otherwise called mohalla Matta or Waris Khan^ and that 
it extends from S rd«r Sujan Singh's house on the west to 
the Murrce Road on the east. 

On this point the parties are agreed in this Court and 
respondents ' counsel has raised no objection to the finding 
of the Divisional Judge. 

The only question then for determination is whether by 
the custom of the locality the right of pre-emption is proved 
to exist. Seven cases were relied on by the plaintiff which 
are noticed and discussed in the judgment of the Divisional 
Judge, pages 10 and 11 of the printed paper book. Of 
these No. 6 is clearly irrelevant and was not referred to 
in the argument. 

In the first Court the plaintiff mentioned i^nother 
instance which appears to have been cited by the defendant 
as well in which the claim was dismissed. 

It is No. 1 for the defendant mentioned in page 11 of the 
printed judgment of the Divisional Judge, Of these the 
Divisional Judge held that Nos. 1, 3, 4 and 7 were oasoB 
in the mohalla and so also No. 1 cited for the defendant. 
He holds that No. 2 which corresponds to No. 5 of the 
first Court did not belong to the mohalla and excluded 
it from consideration. The Subordinate Judge of Rawalpindi in 
whose Court the case was first tried does not refer to it as 
one of the cases the locality of which was shown to him 
when he inspected the spot, and it is not marked in hia 
sketch map. We therefore exclude it from consideration without 



Habch i90>. j • CIVIL JUDGMBiJTS-No. ^6. 103 

going into the disputed point whether Jhangiwala mohalla 
and mohnila Parachian are identical. No. 6 which is No. 2 
o! the first Conrt is also exclnded by the Divisional Judge 
as it is in mohalla Saidpuri, but it is shown in the first 
Coort*8 map and some of the defendants* witnesses admitted 
it to be in mohalla Paiachian. In the map mohalla Said- 
puri commences to the north of this house. We hold 
therefore that this is an instance in the sub-division in 
whiob the disputed house is situate. Case No. II cited for 
the defendants was also a case from this mohalla according 
to the finding of the Divisional Judge, but the Courts which 
decided it held the house then in suit to be situate in 
mahaUa Waris Khan which they found was distinct from 
mohalla Parachian and not to be governed by instances in 
tile latter mohalla and dismissed the claim on that ground. 
The Chief Court was unable to interfere with the finding 
on the revision side and refused to sllow the point to be 
rai^ before it that the two mohallaa were identical. This 
case sbonld be excluded from consideration both because it 
proceeded upon an erroneous conception relating to mohalla 
Waris Khan and because if we take the judgments as 
they stand upon the findings arrived at in that case, mohalla 
Waris Khan was distinct from mohalla Parachian. 

There are thus five cases in this sub-division which 
appear to be in point, rt«., Nor. 1, 3, 4, 5 and 7 of the 
Divisional Judge cited for the plaintiff and No. 1 cited by 
the defendant. Nos. 4 and 5 were decided on compromises 
and in Nos. 3 and 4 relationship was put forward as the 
ground of claim. Chronologically the cases may be arranged 
thus: No. 3 in 1872, No. 7 in 1881, No. 4 in 1882, No. Sin 
1889, No. 1 in 1893 and No. I for defendant in 1897. In 
Noe. 1 and 7 for plaintiff the custom of pre-emption was 
decided but was found to exist after inquiry. 

In case No. 7 reference is made to four precedents in Courts 
in two of which the custom was found to exist and in 
two there were confessions of judgment and in all four 
decrees were given to the plaintiff. The Divisional Judge says 
that from the evidence given before the Court (Mr. Johnston, 
Assistant Commissioner) one case was from the TeUs^ mohalla* 
This is not very material as it was a fifth case, and exclud- 
ing it there sUU remain the four cases mentioned by Mr. 
Johnston in which decrees were given, though in two on con- 



104 OiVIL JUDttMBNTd— No. 26 [ E«<teD 

feesioiis of jadgment. ThaR tbere are at least eight oases 
in this mohalla between 1872 to 1897. 

As regards oonfessions of jadgment and admissions 
they are of course of much less value than contested cases 
properly decided where custom has been found to exist 
after due inquiry, but as observed in several judgments of 
this Court such admissions are not irrelevant and by no 
means valueless as they may proceed from the consciousness 
of the existence of the right and the hopelessness of contesting 
it, see Bamjas v. Bura Mai (i), Tngga y. Allcth Bokhsh (•), 
and Muhammad Nawae Khan v. Mussammot Bobo Sahib ('), 
and other cases dealing with the weight to be attached 
to admissions. Each case must be decided on its own 
faots. Here it does not appear that there were any 
special reasons for the admissions made or to detract from 
their value. We think therefore that these cases should be 
taken into consideration in disposing of the question of the exist- 
ence of the custon which we are considering. 

The net result is that in this mohaUn there have been 
within twenty-five years after 1872 nine cases in which the 
right has been aflBrmed directly or indirectly. In four, viz., 
Nos. I and 7 of the Divisional Judge and in two mentioned 
in the latter case decrees were passed affirming the right 
after inquiry and in three, viz,, No. 5 of the Divisional Judge 
and two cases mentioned in No. 7 decrees were passed on 
confessions of judgment. In one, viz,. No. 4 of the Divisional 
Judge, plaintiff gave up his claim on receiving consideration 
and in No. 3 a decree was passed, but it was a sale by a widow 
though only pre-emption was claimed. These two cases at least 
indirectly affirm tbe right. In regard to the last case it 
should not bo forgotten, that the approved view of pre- 
emption is that it is the last means by which the heirs can 
retain the property alienated and though this applies mostly 
to agricultural land yet pre-emption based on relationship 
in cities, though rare, is not nnknown and was commonly 
claimed in the early days of British rule. However this 
may be, we think there can be no rational doubt that 
these cases show that thero is a preponderance of opinion 
Among the residents of mohalla Parachian or Matta and 
those acquainted with its customs that thb custom of pre- 

(«) 42 P. R., 1905. (•) 69 P. B., 1901. 

(*) 44 P. iZ., IfOS. 



MABt» i9or. 1 



dtlL JtmtfMltNTS— Ka il9. 



1«6 



emptioD bued on vicinage does exist in the mokalla and 
that tbe general treod of jndicial opinion has been in the 
same direction. Moreover where the right of pre*>emp^on 
is shown to exist there is ej necessitate ret a presumption in 
favour of vicinage (Ghaudhri Khtm Singh v. Mtusammat Taj 
Bihi (^), at page 219). The mohnlln is an old one and not 
a new extension of the city of Rawalpindi, and the city 
itself is largely Mnhammadan, and therefpre, presumably, 
saturated with Muhammadan ideas. Oases from other mohaUas 
of the city have not been produced but there is no necessity 
to go into them as at least they would be merely relevant 
and not be direct proof of the existence of the custom in this 
mohaUa. The cases cited for the defendant are not in point 
and the Divisional Judge shows that case No. II was 
decided on a misconception as to the locality of the disputed 
house. 

We are of opinion on the whole therefore that the existence 
of the custom of pre-emption in this mohalla Parachian, Matta 
. ur Waris Khan is sufficiently proved and that the Divisional 
Judge has erred in holding otherwise. 

We accept the appeal and restore the decree of the 
first Court with costs in all the Courts. The plaintiff 
will deposit the purchase money in Court within sixty days 
from this date failing which his suit shall stand dismissed 
with costs. 

Appeal allowed. 



No. 27. 
Befof€ Mr. Justice Chatterji, CLE,, and Mr. 
Jmsh'ce f^attigan. 

ISHWAB DAS,— (Plaihtiff),— APPKLLANT, 
Versus 

DUNI CHAND AND OTHERS.-^DitwiDAiiTs),-. 
EffiSPONDENTS. 
Civil Appeal No. 1308 of 1906. 
Onstom — Pre-emption — Prt^emption on $ale of ogricuUunU land on 
ffound cf vidnage^CivU Station of Amrit$ar. 

Held, that the oottom of pre-emption in respect of mXe of agrioeltnral 
land hj reason of Tioinage in the Civil Station of Amritaar had not been 
eetabllehed. 



'AFPILLiTI 81DS. 



(*) 88 P. Unless. 



Further appeal from the decree of J. 0. M, Bennie^ Esquire, Addi- 
tional Divisional Judge^ Amritsar U% vision, dated 9th June 1904. 

Gorobam Singh, for appellant. 

Lakfibmi Narain and Bakbei Sohan Lai, lor reApondenifl. 

Tbe jadgmeni of the Coart was delivered by 
bih Deer. 1906. Chattbbji, J. — ^The material fncts of this case are giyen io 

the lower Court's judgments. . The land in suit is situate in the 
Civil Station of* Amritsar and in Tukra No. 6 in the revenue 
records. Both plaintiff pre-emptor and the defendant purchaser 
own lands in the same tukra, but plaintiff's land is adjacent to tbe 
land sold, and it is further stated that while this ia agricultural 
land that belonging to the vendee is building land. 

There is no evidence whatever regarding any custom bearing 
on the right of preemption, and it is admitted that the land is 
within the limits of a municipality. The adjacency of the 
plaintifPs land goes for nothing, and if the land in noit is held to 
be within the limits of a t.own as the lower Courts held the 
plaintiff's claim fails, and has been rightly dismissed by them. 

The only case in which plaintiff can succeed is if the land is 
decided to be situate in a village and defendant held not to be a 
landowner because his land is building land while the disputed 
land and plaintiff's other lands are a^irricultural land. The evidence 
absolutely fails to show that the lands in Tukra No. 6 are situate 
io a village or belong to a village community. All we know is 
that Amritsar is described as a mauza and the lands are entered 
in the Revenue Records in tukras of which Tukra No. 6 is the 
one whioh contiftins the disputed land with lands of thd parties. 
We cannot on this meagre information hold that Tukra No. 6 is 
situate in a village and that the owners are members of, or 
belong to a village community. The indications are quite 
the contrary and tukra is entered in tbe column of "jxi^^t " a^d 
the revenue of each is separate. We accept the reasoning used in 
Emm Narain Singh v. Sewak Earn (^), to indicate what is a village 
or a village community. On the evidence adduced it is 
impossible to come to a finding in plaintiff's favour on this point, 
and there is no ground for ordering a further inquiry. 

As far as one can gather from the undisputed facts (1) that 
Amritsar is a large town and (2) that the land in suit is situate 
within the limits of the municipality of that town the case 
would appear to be governed by Section 11 of the Punjab Laws 
Act under which plaintiff has no claim. 



O SIP. 8^1906. 



IfABOH 1907. ] CIVIL JUDGMENTS— Ko. 28. IQj^ 

On the other point, whether defendant's land being bnilding 
land he shoald be held not to be a landowner within the 
meaDing of clanse fd) of Section 12. The view taken of the 
meaning of land in this section in Haidar y. Ishufar Dcu (^) 
oommends itself entirely to oar judgirient. Nor is it clear that 
defendant's land cau be absolntely excluded from the category of 
agrionltoral land io the ordinary sense of the term. If therefore 
Amritsar is a village and tukra corresponds to patH or sab-division 
of a village we think both parties are equally landowners in the 
pcUH and their rights eqaal, so that plaintiff has no priority of 
claim. It is not shown that defendant vendee's land is not 
assessed to revenue and evea if it is not so assessed he wonld 
still be a landowner in the (so called) village, Joimtr Singh 
V. BahmatuUa (>). 

It would thus seem dear that, even on the assumption that 
Amritsar is a village within the me&ning of Sections 10 and 12 of 
the Ponjab Laws Act, plaintiff's claim cannot succeed. We have 
said already that there is every indication that Amritsar is a 
town and the locality of the land is situate within the limits of a 
town, and that as there is no proof of custom in plaintiff's favour 
the claim is not tenable under Section 11 of the Act. 
• PhaUu V. Mukarrab (»), and Jasmir Singh v. RahmatuUa (■), 
have no bearing on this case with reference to its facts. 

We accordingly dismiss this appeal with costs. 

Appeal dimisBed. 

No. 28. 
B^ore Ur. Justice Chatterji, C.I.B., and Mr. Justice 

Battigan. 

QANGA BAM AND OTHBRS,-.(PLAiirnffs),— 

APPELLANTS, 

Versus 

ABDUL BAHMAN AND OTHEBS,- (Dei bnbihts),— 

BBSPON DENTS. 

Civil Appeal No. 1 184 of 1905. 

CivU Procedure Code, 1882, Seetion 43'^MortgagB^ Separate covenante 
for the payment of principal and interest — Distinct causes of action" 
Competency of mortgagee to institute separate suits for principal smd 
inieresi when both have fallen due — All claims on same cause to he 
included. 

Held, that when under a mortgtif^e bond both principal and interest 
have beoome dae, the mortgagee roust sae for both together ; other. 

C) SSP. B., 1906. (•) 7 P. R.. 1896. 

(•) 168 P. 11^1888. 



* Amixin 8iDi. 



108 



OIVIL JC^O]flKT»-*Na. 88. [ lMOB» 



wiii h* wiH be debarred ueder SeoliOB 48 of the Opde of Civil 
ProoDdare fcem oUimlog in a anbseqnent Bait, whttb was not oUimed 
in ihe prior suit. 

The prinoiple of SeotioQ 43 is that where aereral breaohes of 
ooTonants mad^ auder one coniraot have oooorred the oanse of 
aotioD of the ▼arioud breaches merges into one and renders it obligatory 
upon a plHintiff to inclade all dlaima to which he is entided onder 
his contract in one action. 

F%f$t appeal from the decree of Oaptain A, A. Irvine^ Bktrict 
Judge, SinUa, dated 2i>th July 1905. 

Qonldsbnry, for appellants. 

E. 0. Ghatterji, for reepondents. 

The jndgmeDt of the Court wias delirered by 

Ut Deer. 1906. Chattbrji, J.— The material facta of this case are briefly 

these. On Uth Angast 1897 the defendants-respondents 
execntbd a mortgage of certain hoase property in Simla 
for Rs. 6,000 in favoar of the plaintiffs appellants on the 
following terms. 

The mortgagors were to remain in possession bnt to 
pay 15 per cent, per annnm interest on the mortgage money 
and to make payments of amonnti due for the same in 
October and Jane /taring the carrency of the mortgage,* 
the first pnyment being made in October 1897 and the 
next in Jane following. If instalments of interest were not 
paid 9k the etipalated time oompoand interest woald ran 
at the same rate. The principal of the mortgage money 
was to be paid in half-yearly instalments of Rs. 600 
eaoK oommendng from Jane 1898. If two saooessfye 
instalments of the principal were in arrears or if the last 
instalment was not paid i« full the plaintlfla mortgagees were 
. to be at liberty to realise the whole sam dae to them 
from the mortgaged property or other property of the mort- 
gagors. 

The mortgagees were to be at liberty to sae for onpaid 
interest or oompoand interest after dae date, or to sac for the 
same along with the principal. 

The mortgage was for one year, certain after which mort- 
gagors were to be at liberty to repay the mortgage debt in whole 
or in pfti't if they were so disposed. 

It appears that certain payments on acooant of interest 
were made bat none towards the principal the whole of 
which remained outstanding. Plaintiffs broaght a sait 



IfikBCB m-l, CiriL JUDGM1BNTS~No. 38. JQQ 



for the interest dae to tbem on 23rd Aagnst 1904, and 
obtained a decree. They brought the present snit for the 
prineipal and sobseqnent interest on 17th April 1905. 

The defendants pleaded inter alia that snit was barred 
by Section 43 of the Cede of Civil Procodnre in consequence 
of the present claim not having been incladed in the 
previona snit. Th#»ir other pleas need not be recited here. 

The District Jadge of Simla who tried the Hait 
upheld the objection and dismissed claim as barred by 
Section 43, Civil Procednre Code, and this is the only 
point raised in the present appeal. The case has been 
fully argned and a mass of antborities has been quoted 
on boili aides. 

Section 43 reqaires " that every snit Rball inclnde tbo 
** whole of the claim which the plaintiff is entitled 
** to make in respect of the cause of action " , and further 
provides that ^ if a plaintiff omits to sne in respect of * * 
** any portion of his claim, he shall not afteiwards sne in 
** respeet of the portion so omitted » • . " 

The term " caase of action *' has been nowhere defined 
in the Code, and the superior conrts in India have there- 
fora derived its meaning from eztraneoud sources coupled 
with the context of the sections in which it has been 
used. The ordinary and most comprehensive sense in which 
it is understood in England includes every fact which is 
matmal to be proved to entitle the plaintiff to succeed 
and every fact which the defendants would have the 
right to traverse (Oook v. OiU (»), Read v. Browne (•)). 
Their Lordships of the Privy Cooncil have declared it 
to have reference to the grounds set forth in the plaint 
as oonstitating his right to . sue or in other words the 
media on which plaintiff aeks the Court to arrive at a 
conclusion in his favour {phandh>w v. Pittop Singh (•)). 
In Haramaire Do^ v. Hart Oharan Ohowdhri (♦), it was 
held that for purposes of Section 26 of the Code, " canse 
of action " means merely the facts constituting the infringe- 
ment of the rights of the plaintiffs and not also those 
oonstitnting their right. But there is a consensus of opinion 
that it has the wider signification in Section 43. Musti v. 



(^) L. B.. Yin C. P., 107. (•) L. R. 16 /. A., 16«., 

(•) L. A. XXll q. B. D., 128. (•) /. L. R., XIU CaU,, 888, 



110 CIVIL JDDOMBNTS-No. 28. 



[Blooftj> 



Bkolaram (>), Behari Lol v. Pok^ Ham (»), fi«m Pershad 
V. Suchi Do,i (8), Nau,ah Muhammad Kahir Khan v. Mnssammat 
Bhag Bhari (*;. The mortgage deed appeara to create the 
following primary righta of the plaintiffs against the defen- 
dants and the correeponding obligetione on the pait of the 
latter. 

(A) As respectB the prinoipal— 

(«) That it was to be paid in six-iponthly instalments 
of Be. 600 each. 

(it) That the whole was payable within five yearn 
(nV) That if two instaloients remained in anearR, the 
whole sum ontsfanding was clnroable by the- 
plaintiffs. 

(B) As respects interest. 

(.) That it was payable at 15 per cent, per annum ove.y 
M« mcnihs, the first instalment fHlJing dne in 
October 1897. * 

Hi) That if any instalment remaiwd in arreais oompoond 
interest was to be paid on the same a» the rate 
etipnlated for the simple interest. 

^ When the first snit for internet was brought the wh«le 
of the principal had fallen due under the co'nt^ct,. .1, ^ 
instalments beiDg then overdiie. 

The plaintiffs contend that every breach of the in- 
dnjiduH covenants in the deed gives n'se t««n independent 

^her rJ "' \t" " ' "P^*"** "-Be of action, and they 
further rely on the express provisions in the deed as ^ 
their being able to sue if default was made in the pay. 
me;.t of interest The following authorities were ci J on 
.h...r beba f : Ram Bhaj v. De^a (») Jesh^ant Narain v. Vithal 

^:«T.r' ^"''^"^ ^- "''^ ^'«"» ('>• ^-^'» V. ^rZ 

The last case may bo disposed of in "a few words. It 
was ruled in it that when a suit had been brought for 
me.ne profits of certain land and dismissed o. a technical 
point, a subsequen t suit for possession of the land and mesne 

W 17 p. R . 1897. (.) i. /;. n., ZI Mad.. 210. 



MABOK 1907. ] OIVIL JDDGMENTH— No 28 ]^|j 

profits was not barred by section 43 of the Code. It wbs held 
tbat the eoit /or mesne profits and the a nit for ejectment 
were not based on identical causes of action, and tbiR was 
the Tiew taken by a Fall Bench of this Coort (Raja Bikrania 
Bingh v. Prab Dial ('). This case has no beanng on the 
question before us. 

In Jeshwant Narain's case it was held that the breach 
of a covenant in a mortgage deed to pay interest each year 
which is not confined to the fixed period of the mortgage 
ia distinct from, and independent of, the claim of the mort- 
gagee to reoover the principal snm and tbe performance of 
which is secured in a different manner and gives t\bo to a 
distinct cause of action, which can be sued apon without 
. suing for the principal, and a decree obtained on such 
bond for overdue interest does not, und^r Section 43 of the 
Civil Procedure Code, bar a subsequent guit for principal 
and interest by sale of the mortgaged property. Tbe mort- 
gage deed which was for a term of five years was dated 
24th March 1873 and there was a stipulation to pay 
interest nnd the mortgagee was given the right to take 
possession to secure it, the mortgagee nndrrtakii g to pay 
the surplus if anj to the mortgagor. In 1881, the plaintiff 
Bued for arrears of interest up to the eud of 1881 and 
got a decree. In 1882 the mortgagee soed for the principal 
and remaining interest peeking to reccTei brth from the 
sale of the mortgaged propeity and the ^nit was held not 
to be barred. The facts of this case are materially analogous 
to those of the preFent one, and the judgment is an 
authority in favour of the plaintiffs. We Fhall have occasion 
to refer to it again. 

Bam Ehaj v. Bavia (■) and ' Badi Bihi v. Snmi 
Fillai (') may be noticed together. In both these were 
bonds in which terms were fixed for payment of the 
principal amounts secured by them, and there were 
stipulations for payment of interest as it aicinid from 
time to time, and claDses pioviding tlat if int^erest 
was in arrear for a certain time the principal also could be 
claimed, though the time for payment fixed in the bonds 
had not arrived. Suite having been brought for interest fallen 
doe, subsequent suits for the principal ard further interest 
after the expiry of the terms for pnyment were held not to 

(») 189 P. B., 1889. (•) 123 P. R., 1881. 

(») /. L. a, XVin Mad., Zbl, 



1 12 CIVIL JUDGMENTS -No. 2H. [ Rmom, 



be barred. It was ruled that suits for interest could be 
brought under the terms of the boods and that the penal 
clauses by which the principal became payable on failure to 
pay interest as agreed did not compel the plaintiff to sue on 
such defaults as no one is bound to enforce a forfeiture. This 
does not touch the question before us and the principle laid 
down in these oases is beyond question. It must be conceded 
however that in the Punjab case the Brst suit was brought 
when the principal of the bond had fallen due under the 
agreement without reference to the forfeiture claupo on non- 
payment of the intorrst and it was ruled that the claimn 
under the first and seen id aaite were based on distinct causefi 
of action, the plaintifl having in each instance sued for 
the whole claim ariping ex una ohUgatione. We shall return to 
this ruling after we have examined all the important 
authorities cited by counsel to notice. 

The other cases quoted for the appellant need not be men- 
tioned here as they do not specially touch the question we are 
considering. 

For the respondents reference was made inter aUa to 
Duncan Brothers, ^c, v. JeetmaU Girdhart Lall (') following 
the opinion of Mr. Justice Wilson in Anderson Wright and 
Company v. Kalagoda Surji Naratn (*). In these cases contracts 
of sale and purchaRe of goods had been broken by the 
purchaser in part by refusal to take delivery and in part by 
refusal to pay for goods delivered, and it was held that the 
seller was debarred by Section 43 of the Code from bringing 
separate suits on the two breaches, his claim being one 
arising out of the same cause of action and based on one 
and the same contract: 

In Hikinat Ullah Khan, ^c, v. Imam AU and cihen ('), 
the Allahabad High Court held that, when a mort^^ge deed 
provided that possespion was to be given that tlie mortgage 
was to be for four years certain, and that certain interest 
sboald be payable and recoverable from the profits and the 
mortgagee never obtained possession but sued for interest at 
the end of three years and obtained a decree, a seoond suit 
for the principal instituted after the expiry of the term of 
the mortgage was barred. The Court considered that the 



(») /. /.. R., XIX Calc, 872. (2) I. L, fi., Xl! Oale,, 989. 



U^tcu 1907. ) OlTTli JUDGMBNTS— Ne. 88. HQ 

only canso of action of the 6r8t sait was the non-delivery of 
poBseseion and that plaintiff bad no other for the second 
suit. 

In a recent Madras case Bangayya Qoundan v. Nanjappa 
Rao^^G, (*), the plaintifffl had previously paed for possesRion 
and damaf^ for breach of a contract for the sale of n coffee 
estate, and their Lordships of the Privy Conncil held that 
a janb<^eqnent sait by them to enforce speciQc performance 
of the contract was barred, in as ma oh as the contract was 
the only cause of action in both cases. 

In a still later chso in Shan MagimPtllai v. Syed Qhulam 
Oho9e (') the plaintiff had died a saifc under a rent-deed for 
arreurs of rent for FasU 1306 and got a decree, and it was 
ruled that a sabsequeni suit for th«' rent of Fa«Zt 1805 under 
another rent-deed was barred. ■ 

The Court held that though there were separate rent- 
deeds, the cause of action was but one, w*., the non-payment 
of rent by the tenant to his landlord. 

No "doubt every breach of a primary right gives rise 
to a cause of action, and thus where a bond besides fixing 
a date for the payment of the principal stipulates for payment 
of intor»!t in <& certain manner, the non-payment of the interest 
in thill manner creates a right of suit, as was ruled in Bam 
Bh'tj V. Bevia* But this does not settle the further question 
whether when ceveral breaches of covenants made under one 
contract have o<tcnrred, suits will separately be on the several 
breaches. Iti such a case there appears to be an identity of 
the causes of action of the several suits and they cannot there- 
fore be separately brought. Taking the comprehensive defi- 
nition of " cause of action " in Oook v. OilX and the other 
anthorities mentioned before, it is dear that the contract 
has to be mentioned and set forth in every case and its 
existence, scope or validity would be in issue or material 
in all of them. In Hangayya Goandan's case cited fupro, « 

the plaintiffs had the right to possession, as well as to com- 
pletion of the contract of sale and had to rest their claim 
for relief in both the cases they institnted on the contract, 
and although the breaches complained of were different it 
was held by their Lordships of the Privy Council, this did 
not differentiate their causes of action which was but one, 

(») . L R., X<l ? Hci i.. 491. (^ ) . h, «.. JXfU UU., Hi. 



114 UiVIL iU UQMBNT8^No. 28. [ RffO^K^ 



vts., the deed of oonfcract.. Their Lordships have laid down 
in Surjomoni Dye Y, Sadanund MohapcUtt (^), that " the term 
'* oanse of action" is to be oonstraed with reference rather to the 
finbstance than to form of action." 

To take the line of irgament followed in Btm Bhaj v. Devia (■), 
when the defendants failed to p*y interest as stipalated in the 
bond, the plaintiff if he sned as soon as the first breach occarred 
would sue for the whole claim ex un't obligatione^ bnt if a second 
breach also occnrred at the time of suit, the plaintifi sning for 
his remedy for one only of the breaches, could not be said to do 
RO under the provisions of Section 43. One way of looking at the 
matter is that at the date of the second breach the right of action 
l>aaed on the first Hroaoh, if it is not barred by limitation 
is merged in that arising out of the Hecond breach, so that he has 
bnt a single claim in respect of his cause of action, vi»., the 
bond. To hold that each breach constitntes a cause of action 
which subsists independently even after a subsequent 
breach has occurred would be putting a very narrow signi- 
fication on the expression " cause of action " and be opposed 
to the view of the Privy Council in the case of Surjomoni 
DyeC). 

This scheme of the Code is at all events against any such 
argument. The illustration to Section -43 sets it at rest. It 
contemplates that all the covenants to be performed under 
any contract before the suit is brought are to be treated as 
joined and merged into one by the contract and the breach of 
all the covenants enforceable before that time deemed as one 
breach. The object is of course to avoid multiplicity of actions. 
A running account not consolidated into a iinglt: liability by 
a balance struck or account stated is deemed to be a single 
cause of action, for otherwise a separate suit might be brought 
on each item of the account. 

Bam Bhaj v. Devia (*) does not contain anything 
militating against our view and the learned reasoning of 
Mr, Justice Rattigan is quite compatible with it. We entirely 
agree with him that the plaintiff in that case was not bound 
to create a cause of action by enforcing a forfeiture, but 
could at his option waive it. i he only way in which the 
judgment seems to tell in favour of the appellants is that 
the claim there was held not to be barred and was decreed, 
though the facts were very analogous to those of the pre- 

(») 1. B^ 16 /. A., 66. (•) 128 P. i?.. 1881, 



Mamh 1907. ] CIVIL JODGMBNIB-No. «8. IH^- 



8611 fc caFe. The plaintiff bronght his snit for interept after 
the principal had fallen due under the stipnUtion in the 
bond and not in pnrsnanoe of the penal clause. As to this 
wo ran only obserre that the learned Judges apparently 
did not advert to it, and that their reasoning nowhere 
is based on it, so that it is fair to assume that, had they 
noticed the fact th^y probably would not have gr»nt(d the 
plaintiff a decree. 

The facts of 'Jeshwant Narain's case are, as already 
observed, also similar to those of the present one, but the 
judgment does not notice them, though the reasoning of 
the learned Judges can be paid to cover them. They do 
not expressly mention the fact that the mortgage debt 
had fallen due when the suit for interest was brought. 
The learned Chief Justice draws a distinction in favour of 
allowing the claim to proceed on the ground that the 
covenant to pay interest, which was not confined to the fixed 
period of the mortgage, was dittirct frrm, and irdeperdent of, 
the claim of the iroHgngfe to lecover the principal num, and 
its performance was secured in a different manner. '* Its 
breach " ♦ » he says, " gives i ise to a cause of action which 
** can be sued upon without suing for the principal. *' If the 
distinctif n is well founded, which is not very clear to 
our minds, the case is not on all fours with the present 
case, and should be excluded from oouRideration. The 
learned Chief Judge then refers to covenants to pay in- 
terest which is inserted in all well drawn English mort- 
gage deeds for the purpose of enabling the mortgagee to 
sue for overdue interest without calling in the principal 
after the date fixed for the payment of the latter. We 
have considerable difficulty in following tbis argument, for 
we are of opinion that though the English Law on 
the Hubject may be different (see Dickingon v. Barrison (0 
and Mugan v. Rowlands ('), there is no means in India of 
evading the provisions of Section 48 by a contract in direct 
contravention of its terms. When piincipal and interest are 
both due, the section says there can only be one suit for 
both. This cannot be over* ridden by an agreement between 
the debtor and the creditor that separate suits might be 
brought. The last clauf'e of the section relating to collateral 
securities which introduced an innovation from the pre- 
existing Indian practice founded on Knglish Law fully illus- 
trntcs the comptohenpive scope of its provisions. 

(0 4 Price, 282. (•) L. B^ 7 Q. B. /)., 4»8. 



116 OiYtL JUOGMKNTS-No. ^. [ Rmom, 



In any case we cannot follow this antbority in the face 
of the other rnlings we have cited in onr judgment and 
particnlarly thoee of their IjordphipA of the Privy Oonncil. 
In an earlier case Anappa, 8fc, v., OanpaH, Sfc (*)> ^^^ Bom- 
bay Court (Westropp, 0. J., and Kemball, J.) laid down 
the same doctrine. 

In the present instance the plaintiffs sued for interest 
alone when the principal had all fallen due according to 
the. terms of the mortgage- deed. Had they saed for in« 
t^rest before that period, even ihoogh two instalments of 
interest were in arrear, the bar would not have arisen for, 
as laid down in Bnm Bhaj v» Devi a and Badi Bib%*8 case, no 
one is bound to enforce a forfeiture." But in the oircnmatances 
that existed when the plaii'tifFs' first suit was lnt>nght, the 
cause of action for recovery of the principal had accrued 
and the cause of action for interest had, under the Code, become 
merged into one, and the present claim for principal which 
was omitted from the former claim is clearly barred. 

The decree of the District Judge is thus right, and should 
be upheld. The appeal is accordingly dismissed with costs. 

Appeal dismissed. 

No. 29 

Before Mr. Justice Chaiterj% CLE,, and Mr. Justics 
Bdttigan. 

FAZAL AND ANOTHER,— (Plaintiffs), -APPELLANTS, 

VersfM 
AfMLLATB SiDi. J hAYaT ALI AND OTHERS,— (Defbndant8),—U BSPON- 

DBNT8. 
Civ.il Appeal No. 1394 of 1906. 

Ottstom- Alienation— Gift of ancestral property by a sonless proprietor to 
iisler^B son who was also the donor's khaDadnrnHd un<i daughter's son — Khinger 
Jats of Ohakwal tahsil, Jhelum District, 

Held, that amoDgflt Khinerer Jats of the Cbakwai tahsil^ in the 
Jhelum District, a gift by a eonless proprietor of his ancestral property 
in favour of a sister^s son who was also the khanadamad of the donor 
io ooosideratioD of services rendered by rhe donee to the donor and 
a daughter's son in the presence of male collaierals is valid by 
ooBtom. 

Further appeal from the decree of Captain B. 0. Koe, Additional 
Divisional Judge ^ Jhelum Division, dated 2U^ October IU05. 
Nanak GliaDcl,for Hppeliants. 
Dhanpat Rai, for respoDdente. 

(^) I. L.R,,rB0m,, 191. 



s 



Mawth 1907. ] CIVIL JUDGMHNTS^No. 29. 



117 



The judgment of the Court was delivered by 

Ohattirji, J.— The material facts are sufficiently given in' 6th Dec 1906. 
the judgments of the lower Court and do not require detailed 
recapitulation. 

The parties are Khinger Jats of the Chakwal tahni 
of the Jhelum District. The Khingers are a section of a larger 
tribe of Jats, we., the Bhattu. From the genealogical trees given 
in the judgments of both the Courts below, it appears that 
plaintiffs are the own nephews of Baz, deceased, and are 
entitled to one-third of the estate left by him by right of 
inheritance. The plaintiffs have a third brother, Karam Din, 
who as well as the descendants of another brother of Baz, have 
not sued. It is said this is a sort of test case, and the claim 
of the other relations will depend on the result of the present 
suit. But Bahadur, one of them, fully supported the alienation 
by Baz, in the Court of first instance. 

The defendant, Hayat AH, is the sister's son of Baz, and 
it was admitted hy the plaintiff, before the commissioner 
for local enquiry, appointed after the remand by the Di- 
visional Judge, that he wfts also Kh^nadamad of the deceased, 
though the daughter of Baz is now dead. Appellant* counsel 
stated in this Court that she died before the gift in 1892 
but this was denied by the respondents, and there is no 
evidence in support of appellants' assertion. The other donee 
is the son of that daughter. The property in suit is 
ancestral. 

The question then is, whether Baz could gift the bulk 
of his ancestral land to his sister's son and Khanadamad 
or to his daughter's son, for if the gift to either could be 

lawfully made bj custom it must bo maintained as a 

whole. 

The case was first decllei after taking the evidence of 
theparfeiei. The Divisional Jad-e was not satisfied with the 
laqairy mad. aad retarael the case for more. The partie. then 
elected to go upon the e7idence already adduced, but the first 
Court appointed a commissioner accepted by both parties to 
m^ke a local investigation. The Cimnissioner's finding on 
the point of custom was in favoar of the donso defendants, and 
apparently no specific objection wis taken to the report by the 
plaintiffs. The lower Courts have concurred with the 
commissioner's opinion as regards the custom. Counsel for 
plaintiffs-appdlants represents that the inquiry is still incomplete 



118 GIVIL )UDGMBNTS-Na m. [ EioOBD 

and that h\B clientB on^bt to be granted a farther opportanity to 
produce all tbeir evidence. We cannot accede to this prayer 
ander tbe circnmstanoes of this case, for the plaintifiEs had ample 
opportunity to produce their proofs at the original trial and 
again when tbe case was remanded expressly for farther inquiry. 
On tbe latter occasion they stated that they would not call 
any further evidence. And they produced what evidence they 
thought proper before the local c3mmi8sioner. They did not 
ask in the first Court to be allowed to adduce further proof 
when the commissioner made his report nor in the Oou rt of the 
Divisional Judge. We bold that they cannot claim a fresh 
inquiry at this stage. 

We have thus t^ decide fch<^ case on the existing record. 
The plaintiffs quote page 8 of Mr. Talbot's (leneral Code of Tribal 
Customs in the Jhelum District and the « presumption arising^ 
therefrom, and rely on the fact that the parties are agricol- 
turists and the land ancestral. The lower Courts have 
relied on Sher Jang v. Ghtdam Muht-ud'din ( i ) and Hassan ▼. 
Jahnna ('), on the question of onus, but a somewhat different 
view is taken in Bholi v. Fakir (• ). We do not think it necessary 
to say anything positive here on the question of onus, as there is 
evidence on the record on which the case can, and should, be 
disposed of. 

After giving due weight to Mr. Talbot's record of customs, 
we are unable to hold that the concurrent views of the first 
Court after remand and of Divisional Jndge supported as they 
are by the report of the local commissioner are erroneous. 
The locality being west Punjab and the parties Mnhammad- 
ans we may reasonably expect some relaxation of the strictness 
of the rule of agnatic succession in favour of daughters and their 
issue and a less restricted power of alienation in favour of the 
latter. There are numerous decisions of this Court upholding 
such alienations among agricultural tribes of the samo District 
which have a distinct bearing on the point before us, e.g., Sh^r 
Jang v. Qhulam Muhi-ucMtn (*), in which, after an elaborate 
discQssion of the evidence in the case and the rulings of this 
Court, it was held that among Mari Rajputs of the Chakwal tahsil 
a gift of half of the ancestral estate to a d^aghter's son in the 
presence of agnates is valid, and, at pige 92 of the record, 
the opinion was expressed that the power of gift in favour of 
a daughter's son is one very commonly among the 

n 22 P. /?., 1904. (•) 71 P. ft., 1904. 

(•) 6BP.B.,1906. 



Mabch l«07. ] OIVTL JUDGMBNT8— No. 29. \\^ 

Muhammadan tribes of the Jlebm District.. * * *. Jn 
HasianT. Jahana (*), it was found thut amorflf MogVals of 
the Phipra got iu the Chakwal and Pfnd Dadan Khan tahsils 
plenary power of gift in favonr of rektions in the female line exists 
without the consent of male agnates. A similar power of ^ift 
in faYonr of a Khanodamad to the prejudice of male coUaternls 
was fonnd among Janjhnahs of the Jhelnm District in Faeol 
V. Khan Muhammad (*). In Nur Eusain v. Alt Sher (*), it was 
held that among Gnjars of the same District the owner had 
power to prefer some near male relations to others of eqnal 
degree on acooant of services rendered by the former. It must 
be borne in mind that one of the donees here is a Khana- 
damad^ and it is proved that he rendered services to the donor. 
We think these cases show that the power of alienation in 
fafonr of the female line or for sei vices is common among 
these tribes. The instances mentioned by the defendants, thoogh 
not exactly on all fonre with the present alienation if they 
are critically examined, nevertheless show that alienations to 
daughter's issue, &c, are frequent in this very tribe, wbTle 
the plaintiffs have not been able to cite a single instance 
in restriction of the power. This shows, we tbuik, that the 
statements in the records of custom recently made should be 
received with caution, as the value of . land having greatly 
risen in these' times the zemindars are naturally seeking to« 
curb the power of alienation. Doubtless if the whole com- 
munity accepts this view, and it is acted on without demur 
for some time, it may be good evidence in support of the custom 
stated, but the change of opinion cannot affect old alienations 
in any case, and the general consent to the abrogation of the 
old rule requires to be clearly proved. The replies of the 
tribesmen of Jhelnm on gifts to daughters are dubious and 
by no means onanimous, vide answers to questions 86 — 89. We 
find here that the gift made so far back as J 892 has been 
challenged by the plaintiffs only now, and that even at the 
present moment the bulk of the relations equally entitled 
hang back, and one of them has expressly declared himself 
in favour of the power to gift. We have already observed 
that there are considerable equities in favour of Hyat Ali, 
the Khanadamadf who was brought from another village 
and who served the deceased and his widow all his 
life. 



(») 71 P. B., I§04. (•) 86 p. R., 1904. 

(•) 88 P. £^1906. 



120 riViL JUDGMBNTS^NcK 80. ^ ^^^^^^ 



On the whole, therefore, we see no reason to think that 
the qaestion of cnetom has been wrongly decided by the 
Jower Ooaite. We accordingly dismiss this appeal with costs. 

Appeal d%8mis96d* 



Appbllatk SlDB. 



No. 3a 

Before Mr, Justice Raid. 

BAHADDR,—(Plaintjfp),— APPELLANT, 
Versus 
ALIA AND OTHERS,-- (Dkfbndants),— RESPONDENTS. 
Civil Appeal No. 1259 of 1906. 

Punjab Pre-emption Act, 190^— Application of, to rights accrued before 
thtU Act came into force— Retrospective enactment 

Held, that the Punjab Pre-emption Act, II of 1906, is a retroepeotive 
ena(jtment, and as such affects causes of action which accrued or were 
acquired before it came into operation. 

Further a/^ptal from the decree of Kazi Muhammad Anlam, Divi- 
stonalJuclge, Ferizepore Division, dated \hth March 1906. 
Shah Nawaz, for appellant. 
Beechey, for respondents. 

The jadgment of the learned Judge, so far as is material for 
the pnrpoBes of this report^ was delivered by 

19^fc /a»y. 1907. Keid, J.— The first qaestion for decision is whether the 

Panjab Pre-emption Act, II of 1905, which came into force 
in May 1905, deprived the plaintiff-appellant of the right of 
pre-emption in respect of a mortgage by conditional sale of agri- 
cnltaral land. 

Section 5 of the Act provides that the right arises in respect 
of agricultural land only in the case of sales, and in respect 
of other immovable property in the case of sales or of fore- 
closures of the right to redeem such property : and section 2 
(3) pi-ovidert that notwithstanding anything to the contrary in 
Section 4 of the Panjab General (Clauses Act, 1898, the Act 
shall apply to every claim to the right of pre-emption, whether 
that right accrued before or after its commencement, save 
and except any such ricfht in respect of which payment, 
tender or deposit has been made or afiuit has been brought under 
any provision repealed by the Act. This suit, initituted on tke 



lUlSM 190f. ] 0.1 VIL JUUGMKNT^ iSo. 81. 121 



4th November 1905, is for possession by preemption of 56 
hanals 8 marlas of land, being a ^th share of 223 kanals 
19 marlas, with share of shamilat, mortgaged by conditional 
Bale, the year of grace, after notice of foreclosure, having 
expired on the 3Gth September 1900. 

Atar Singh v. RcUla Bam (i), is anthority for holding that 
the sait was within limitation nnder Article 120 of the Act. 
Sahib DadY. BahmcU (•) has been cited for the proposition 
that the Pre-emption Act cannot cancel or destroy a pre-existing 
oanse of action. The anthority does not help the appellant, as, 
at page 341 of the report, it is specifically stated that the Conrt 
had to decide *' whether there was anything in the Punjab 
"Limitation Act which clearly and unmistakably indicated 
"that that Act was to have retrospective as well as prospec- 
" tive effect,** and that it was clearly open to the Legislature 
to give retrospective effect to enactments and to take away vested 
rights. 

Section 2 (i^) of the Act specifically deals with vest.ed rights, 
and has deprived the appellant of the right to pre-emption in 
respect of the foreclosure. 

NoTB.—Tbe rest of the judgment is not material for the purposes of 
this report- -Ed. P. B. 



Full Bench. 
No 31. 

Before Mr, Justice Beid, Mr. Justice Johnstone and 
Mr. Justice Battigan. 
RAGHU M A L,^(PLiJHTiPF),— APPELLANT, 
Versus 
BANDU,— (DKFBNDAirr),— RESPON DENT. 

Civil Appeal No. 812 of 1904. 

Estoppel^ Decree in favor of plaintiff for a part of his claim — Easeution 
qf such decree hy pluintijf-^ Subsequent appeal for remainder. 

Held, that a plaintiff who has obtained a decree for a pait of his claim 
and has executed the same is not by the mere fact of his baring taken 
out execution of that decree debarred from prosecuting the appeal 
as regards the remainder of his claim which had been disallowed 
by the first Court. 



Appcllati SiDl. 



() 10$ P. a, 1901, f.B. (•) 90 P.M., 1904, F.B. 



122 CIVIL JUD<4lf|fiNTs-.No 31. [ Emors 



Mahomed Ekan y'. Pida Mahomed (i) orer-roled. 

First appeal from the decree nf H. Barcowrt, Esquire, District 
Judge Delhi, dated 21th May 1904. 

Shadi Lai, for appellaot, 
Mahammad Shafi, for respondent. 

This was a reference to a Fnll Bench made by Johnstone 
and Rattigan, J J., to determine whether a plaintiff who has 
obtained a decree for part of his claim and ban appealed as re- 
gards the part dismissed is debarred from proseonting the appeal 
beoanse he has begnn to ezecnte the said decree. 

The order of reference was as follows :— 

7th Feby. 1906, Rattigah, J. — For respondent Mr. Shafi raises a 

preliminary objection to the effect that a^ appellant 
has, since the filing of the appeal, applied for and obtained 
execution of decree in his fa?onr, the appeal by him in respect 
of that part of his claim which was disallowed by the lower 
Court is barred. In support of this contention reference is 
made to Mahomed Khan y. Fida Mahomed (*), which has been 
cited without disapproval in at least two subsequent decisions of 
this Court (viz., Muhammad Hassan v. Ghous Bakhsh (*) and 
Ferot-ud^n t. Qhulam RasuL (Civil Appeal No. 695 of 1905). 

Mr. Shadi Lai states that his client (the appellant) was 
compelled to apply for execution owing to the fact that another 
creditor had taken out execution against the same property ; 
and that he was careful, when applying for execution, to 
Htate that he did so without prejudice to his right of appeal. 
The learned counsel also urges that Mahomed Khan t. Fida 
Mahomed (}) was wrongly decided, and that the ruling therein 
is based on no provisions of law. 

We are ourselves inclined to take this view. It seems to us, 
as at present advised, inequitable that a creditor who h&s 
obtained a decree for part of a money claim and who 
has appealed against that part of tho decree which disallowed 
the remainder of his claim, should be held to have lost his 
right of appeal simply and solely because he has executed the 
decree for what it was worth. We fail to understand the 
principle or justice of such a bar or estoppel. In such cases 
the appellant in appeal mg not for the part of the decree 
in his favour, but for tiie part that is either expressly 



(*) 82 t. fi., 1868. (•) 4B P. ;•., 1880. 



1907. ] CIVIL JUDtiMBKTS— No. 81. 128 

or by im plication adrene to him, and we are unable 
to nnderstacd why hiB appeal against the latter part of the decree 
ahoald be held to be barred beoaose he has executed the {ormer 
part. FeroZ'ud'dtn v, QhuLam BaauL (Oivil Appeal No. 695 of 1905) 
was concerned with a very different qdoRtion, which wan 
whether a vendee who in his nppeal urged that a pre-empt or 
had no right of pre-emption, was debarred from prosecnting 
his appeal by the fact that subsequently to its institution, he 
had withdrawn from Court the amount deposited therein by 
the pre-emptor in aooordanoe with the decree. In this oaRe 
it was pointed out, with reference to Muhammad Hassan v. 
Qhous Bahsh i^^) ^^ ihdX the utmost benefit that the appellant 
'* could get from the analogy of the latter case would be some 
"support to a contention that the withdrawal of the pnrchase- 
** money could not prevent his prosecuting an appeal on the 
" grotiud that the purchase-money was insufficient. That, 
** however, is not the contention here. There is no mention of 
" the amount in the grounds of appeal before ns, nor was this 
" point argned ." 

In Mukammad Hasan v. Ohous Bahsh (^) the appellant 
had not applied for erecntion of his decree, and it was in this 
respect that Mahomed Khan v, Ptda MaJhomed (*) was distin- 
gnished. 

As we are not disposed to follow the ruling of the Division 
Bench in Mahomed Kkan v. FtdaVHahomed we refer the question 
involved to a Full Bench for determination. 

The execution file should be sent for an«.' be placed before 
the Full Bench at the hearing; also the execution file relating 
to the claim ot the decree-holder, Kanoya, against the same 
property. Respondent has undertaken to give details regarding 
the latter file. 

The judgment of the Pall Bench was delivered by 

.ToHNSTONi, J.— The question referred to this Pull Bench Ibih June 1906. 
was whether a plaintiff, who has obtained a decree for 
part of his claim and has appealed as regards the part 
dismissed, is debarred from prosecuting the appeal because 
he has begun to execute the said decree. The referring order 
of the Division Bench, dated 17tl^ Pebruary 1906 explains 
that the reference is a necessary one, because the view that 
Bench was disposed to take was in opposition to the ruling of 



124 CIVIL JUDQMKNTft-No. 32 [ RiOORB 



a Division Bench of this Court in Mahomed Khan and another 
V. Bida Mahomed (*). 

After hearing Mr. Shafi, who Ropports the views held 
in 1868, we find in his arguments no reason for di£Pering from 
the opinions set forth in the referring order. In our opinion 
the case Feros-ud'dtn v. Ohulam Raaul (Oiml Appeal No. 695 
of 1905) relied on by him is clearly distinsraishable, as the 
rftferrincf order shows ; and we repel the sacft^estion that if we 
aajree in tho ori'ecfcne^-? of thit decision, it follow-i we must 
here hold prosecution of the appeal barred. 

In short, we over-rule the didum in Mahumed Khan and 
another v. Fida Mahomed (^), and answer the question 
stated above in the negative. The file will go back to the 
Divisional Bench, and the appeal will be heard. 



No. 32. 

Before Mr, Justice Ohatterjif CLE, 
ANWAR ALT, -(Judombnt-dbbtob),— APPBLCjANT, 

AppiLLiTi Sid.. I ^^^ 

INATAT ALT AND OTHERS,— (Dbcbeb- holders),— 

RESPONDENTS. 

Civil Appeal No. 943 of 1905. 

Limitation-^Decree against several defenda/nts —Appeal by some of the 
defendants against part of the decree only - Bmecution of decree — Starting 
point of limitution from dat^ of appellate decree against all the dtffendnnts 
— Limitation Act, 1877, Schedule 11^ Article 179 (2). 

The plaintiff saed nine defendants jointly for possesion by partition 
of two hoases, Nob. 1 and 2, and obtained a decree for certain speoifio 
•hares in hoa^e No. I agaiast defend inta 1, 2, 3 and 7, and in honse 
No. 2 against defendants 1, 2, 3, 4 and 5. Defendants 6, 8 and 9 
appealed in renpeot of hoas^ No. I, bnt their aponal w^< dismissed by the 
Appellate Coart. Oo a snbseqa'^nt r^niind (on farther appeal) by the 
Ohief Oou»t this order was after a f irther inqnirv asrain affirmo.l. The 
plaintiff applied for ezecation in respect ot house No. 2 after the expiration 
of three years from the date of the original decree hot within three years 
f^om the date of the appellate decree, whereupon defendant 4, who had 
not joined in the appeal bnt was a party to all the proceedings, pleaded 
limitation on the ground that there having been no appeal on bid behalf 
the original decree still existed. 

Held that the limitation for execution in respect to the properties 
found to belong to plaintiff by a single decree began to run agBinst all 

(») 88P. S^1S68, 



March 1907. CIvIl JUDGMicNTg— Na 82. ^2^ 

the defendants from the date of the final decree of the Appellate Gonrt 
irreepeotiTe of the fact that some of the Judgment-debtors were not interest- 
ed in the appeal 

OlanseS of Article 179 of the Indian Limitation Act applies to all 
SQoh decrees against which an appeal has been preferred by anjr of the 
parties to the litigation in the original suit. 

Abdul Rahiman y. Mai Din Saiha (^), Qopal Ohwider Manna v, 
Oosain Das Eelay (*) followed. 

MoBhiai^n-Nissa y. Rani (*) distingnished and not approved. 

Further appeal from the order of A. E. Martineau, Bsqutre^ 
Divisional Judge^ Lahore Divisioth dated l^th November 1904. 
Oertely for appellaDt. 
Sangam Lai, for respondents. 

The jadgment of the learned Jadge was as follows :— • * 

Chattbbji, J.^-This is a very old ease and there have been 23rd June 1906. 
u amorous prooeedings taken in it and varioas orders and decrees 
passed which tend to obsoore the understanding of the proper 
issae inyolyed in the present appeal. It is difficult within a 
short compass and indeed unneoessarj to give a complete resume 
of all of them. I shall, therefore, briefly refer only to sach facts 
as have a bearing on the point raised before me and afford help in 
properly disposing of it 

The present plaintiffs decree-holders respondents brought 
a suit for possession by partition of two booses in Lahore called 
Nos. 1 and 2 in the proceedings, against nine persons, whose 
names need not be given here, on 2 1st July 1887 in the District 
Gonrt of Lahore. Anwai* Ali, the present appellant was defend- 
ant 4. The pleadings of the parties and the findings of the 
Distiict Judge are unimportant for the decision of this case, and 
it is sufficient to state that his final and amended decree was 
passed on 17th January 1889, by which he awarded plaintiffs 

a decree for a 2ggj2 ^"^ about a fourth share in house No. I, 
excluding therefrom premises marked E (called Diwankhana) 
andPout of the shares belonging to defendants 1, 2, 8 and 7 

only and a^^ ahare in house No. 2 which he held to be the 
joint property of defendants 1, 2, 3, 4 and 6. 

• The decree against defendant 4, appellant in this appeal, 
was e» parte* 



( »-> 1. 1. B., XIU Bom., 500. (•) l. L. R., XXV CoZc, 5M, 



][26 CI^ JUDaMKNTB-Ka 88v [ Bmwd 



Defendants 6, 8 and 9 appealed from' the deoree aa to 
hoQSe No. 1 which was dismissed by the Divisional Jodjyfe on 
28th Jone 1889. They applied for revision in the Ohief Conrt 
btit were nnsnccessfni. 

Plaintiffs applied for exeoation in 1893 mreapwA ofhonsO' 
No. 1, bat their appHoation was r^eotad by the first Conrt 
and the Divisional Jadge. It was, however, aooepted bf tbe Chief 
Conrt and remanded to the lower Conrt. In oonseqnence of an 
expression of opinion in the judgment that defendants 6, 8 
and 9 might apply for revision of the order of the Chief Conrt, 
an applioatlon for review was filed which was aooepted «nd the 
case remanded for redeoision, by the Divisional Judge, of the first 
appeal to the Divisional Conrt by order, dated 2 1st Jane 1899. 
The Divisional Jadge Mr. A. Kensington, after a remand for 
farther enquiry, upheld the previous order dtsmisBing the appeal 
of defendants 6, 8 and 9, though on different grounds, on 
31st March 1901. This decree was maintained by the Chief 
Conrt. 

On 7th February 1902 plaintiffs asked for execution of 
the deeree in respect of honse No. 2. Their applination was 
diamisBed in default and on 17th June the preeent anpUcation 
was filed. 

The only question argued before me was whetiier or not the 
application is barred by time. The lower Courts have held) that 
it is not. This is the only point for determination. 

Defendant 4 is the only appellant before me« He is j^btlj 
interested in house No. 2 and has no interest in house Na 1, but 
he has been a party to all the proceedings mentioned before. 

The argument for the appellant divided itself into two 
heads— (1) that the present application is barred under Section 
230) Civil Procedure Code, and (2) that it is barred nnder 
Article 179 of the Indian Limitation Act, XV of 1877. 

Both contentions appear to me to be untenable. The 
order in appeal taking the language of clause (a) of Secti<m 2.30, 
Civil Procedure Code, literally, was passed on 3 1st March 1901 
when the Divisional Judge, after a remand by the Chief Court 
and after a fresh inquiry by the first Court, upheld,the original 
decree of the Divirional Judge passed in appeal in 1889. 
Appellant contends that he was not interested in the applica- 
tion of the plaintiffs for execution in which the Chief Court's 
order for remand was passed as be had no share in house No. 1. 
But clause (a) merely speaks of a decree afiiiming the decree 



Wn. ] CITIL lUB»nXKrT8-N«. M. 1^7 



fldagM io be«tiforoed, and the deoree of Odonel Wood in 1889 
asintttin^ by Mr. Kensington in March 1901 comes wiUiin 
tbeeetegory. 

A similar question arises under clause (2) of Article 179 
which runs thus " (where there has been an appeal) the date 
** of th^ final decree or order of the Appellate Court ". Appellant 
contends that the appeal to the Divisional Court related to 
house No. 1 which did not concern him and not to bouse 
Ka 2 to which the present application for execution relates. 
The argument under Section 230, Civil Procedure Code, and 
Article 179 (2) of the Limitation Act is thus practically identical. 
Now there was but a single decree passed by fche District 
Judge and not two, though all the defendants were not in- 
terested in both the properties in respect of which the decree 
was passed. The suit was filed on the allegation that both 
properties were joint and ancestral of the parties, but the 
deoree made a distinction among the defendants and granted 
relief to plaintifEs in respect of the two booses specifying 
the defendants from whom plaintiffs were to get their share of 
each house. Defendants Nos. 1, 2 and 3 were made jointly liable 
with defendant No. 7 with respect to one house and with defendant 
No* 4 (present appellant) and defendant 5 with respect to 
the other. 

Beading the language of the two enactments in their 
plain grammatical sense which is imperative on me in constru- 
ing all statute law in general andlimiUtion law in pvrhioular, 
I am unable to introiuoe any addition in the section and article 
by which I can split the deoree into two portions and differeu- 
t&te the limitation applicable to each portion with reference 
to the decree in appeal. In my opinion we have no right to 
inttodooe any refinements in the plain language of the Legisla- 
fcufe which have the effect of varying its meaning. This view 
WM taken in respect of clause 2 of Article 179 by the Bombay 
High Court in AhAnl Uahiinan^ etc., v. Mai Din Sdihn^ 
ite. (*), and! entirely agree with the reasoning adopted hy the 
Ooiirt* 

The second clause of explanation 1 to Article 179 has no 
bearing in appellants* favour. There were two properties no 
doubt included in the deoree and the liabilities of the various 
defendants distributed in two groups were somewhat different, 
. but the deoree was nevertheless joint against defendants 1, 2 
and 8 in respeotof both houses and No. 4 was joined with them 



126 ^^^^ JUDOICBNTS--N0. 82. [ Bloou> 

as regards honse No. 2. This olaase relates to the effect of 
applioatioxis for exeontion and not to the eSeot of appeal. 
*^ There is a vast distinction to use the langoage of Mahmnd, 
"J^ in Mashiat-un-Nissa v. 5am (}\ vide p. 7 between 
cases in whioh an application for execation is made, there 
having been no appeal from the decree and cases in which there 
has beeii an appeal as contemplated by clause (2), Article 179. 
I am of opinion, therefore, that it is useless to employ the analogy 
of applications for execution in decrees mentioned in the 2nd 
daase of the explanation in interpreting clause 2 of the article. 
They have no connection with each other and apart from the 
fact that the language of clause 2, which is plain, makes no 
distinction between joiot decrees and several decrees against 
Reparate judgment-debtors included in single decrees, it is 
difficult to ignore the inference deduoible from the fact that 
whereas the explanation has been inserted to make the dis. 
tinotion in respect of applications for execution mentioned in 
clause 4| no corresponding explanation or reservation is intro- 
duced in respect of clause 2. The Allahabad case is cited as 
an authority in favour of the appellant, but its facts are not 
exactly similar, the decree having been not joint but several 
against the defendants individually and the ruling of the majority 
of the Judges was differed from in a recent Calcutta Full Bench 
judgment, QopaL Chunder Manna v. Oosain Das Kelay (*) 
in which a similar inferpretation to that I am disposed to put 
on clause 2 of Article 179 was approved nnd laid down. 
I agree with the learned Chief Justice in the last mentioned 
case in preferring the reasoning and the conclusion of the two 
dissenting Judges in the Allahabad case to the view of the 
mnjority. 

There are many authorities bearing more or lesson the 
point before me, but I deem it useless to swell the bulk of this 
judgment by discussing them in detail as I have mentioned 
the most recent and authoritative. There is no ruling of this 
X7ourt exactly in pmnt, Balla Mai v. Musaammat Malan (*) 
cited by the respondent, having no direct bearing on the present 
discussion, and I am glad that I am comparatively lees fettered 
in the free exercise of my own judgment in construing the clause. 

I accordingly hold that limitation runs both under clause 
(a) of Section 230, Civil Proeednre Oode, and clause 2 of Article 

(1) /. L. -P., XUI An., 7 r, B. (•) /, L, H.» Xrr Oalc,, 694. 

(•) 8 p. B., 1906, 



M ABCH 1907. ] CIYIL JXTDGKBKtS -No. Zt l^^ 

179 of the Limitation Act, 1877, from the last order in appeal* 
nV, that of Kir. Kensiogton on Slst March 1901, and that the 
respondent's application is within time* 

The appeal is dismissed with costs. 

Appeal dismissed • 



Appiilati Sdb. 



No. 33 

Before Mr, Justice Johnstone and Mr, Justice Battigan. 
NIHAL CHAND,—(PtAi»TiFP),— APPELLANT, 

Versus 

BHAGWAN SJKQH AND OTHERS,— (DEftNOANTfi),— 
RESPONDENTS. 
Civil Appeal No. 777 of 1906. 

Custom-^AliinaUon -Alienation by ionless proprietor ^-^Loc its standi of 
i ei^rgioner^ Bedi Khatris of Kalewal^ tahai\ DaBuh<if Boahiarpur District^ 
Hindu Law — Burden of proof. 

Held, that the plaintiff upon whom the onue lay had failed to establish 
that in matters of alienation a sooless Bedi Khatri of Kalewal, taheil Dasaha, 
in the Hoshiarpnr District, was goremed by cnstom and not by Hindu 
Law. 

Furiher appeal from the decree of Major 0. 0. Beadon^ Divisional 
Judge^ Hoshtarpur Divinon, dated 26th May 1906. 

Gk>lak Nath, for appellant. 

Sohan Lai, for respondents. 

The judgment of the Oonrt was delivered hy 

Johnston, J.— Defendant 2 fmld the land in sait on '26th 12th Jany. 1907. 
May 1898 hy registered deed for Rs. 500, the vendor heing a 
Bedi Khatri of Kalewal, tahsU Dasnba, district Hoshiarpnr. 
Plaintiff, who is admittedly a reversiocer, has sued for the usual 
declaration. Defendant vendee pleaded time-har, and also oon. 
tended that the Bedis are not hound by agricultural cnstoni and 
so plaintii! has no right to sue. He also lastly urged that the 
sale was fer consideration and *' necessity." The first Court 
found the suit within time, held, on the strength of Uttam Singh 
and others Y, Jhanda Singh and others (^\ that these Bedis do 
follow agricultural custom ; and that of the consideration money 
only Rs. 65 is proved to have passed. Plaintiff got his declar- 
ation accordingly, and the vendee appealed to the Divisional 
Judge. 



m 



cmh juDOHBiin-ifo. as. [ 



Tbat^ffioer held the suit withio time, bat went on to find 
that theee Bedis do not follow agrioaltaral onstom resirioii^g 
a male owner's power of alienation. The snit having bean 
dismissed in aooordanoe with this finding, plaintiff appeals 
further to this Oonrt, attacking only the aotnal finding of the 
lower Appellate Oonrt regarding the non-applicability of agricnl- 
tnral custom to the case. There are not many publisfaed rulings 
relating to Bedis and their customs, and it seems to me impossible 
to lay it down that any general rule applies to them all. Tbej 
are to be found in maoy districts io different parts of the Province. 
In Ehazan Singh v. Maddi C) Bedis of Mobla Wahidpur, tahta 
(^arhshankar, district Eoshiarpur, are spoken of as a non* 
agricultaral class, though in that case holding land as maHkan 
kahizan ; and it was held that the burden of proving a custom 
whereby alienations by a deoeaRod collateral male proprietor were 
liable to be contested by reversioners had not been discharged. 
It waR Raid that Bedie are more on a level with Sayads, 
Brahmins and Khatris than with ordinary agriculturists. 

In 8urup Singh v. MuesammeU Jami (') the Bedis of 
0«rdas|>nr were treated ns a snb-division of the Khatris. 
After a special farther enquiry it was held that these Bedis 
could adopt a wife's brother, an act that would be valid under 
Hiadu Law, but not under Jat custom. The Hindu Law mm 
not specifically followed ; but this was the result. In Uttam 
Singh v. Jhanda Singh (') we have a oase of Bedis of Pindori 
Bawa Das in the Hoshiarpnr District. The case was one of g^ft 
by a sonless proprietor, and the gift was held invalid. The 
oase of Ehazan Singh quoted abo\e was distinguished on the 
Boore of the different ciroamstances of the Bedis eonoemed in it. 
In Khasan Singh's case the Bedis were a small group of nu^lihan 
kabtOf and it was not proved thMi they followed agricoltural 
custom. In the case of 1896 the whole village belonged to Bedis 
whose ancestors founded it some generations back. They 
form a compact body, the judgment sayf^ ** and whatever the 
pursuits of their ancestors may have been they are oertaioly 
now agriculturists.** 

In Civil Appeal 480 of 1908, decided by a Divieibn 
Bench of this Oonrt, it was held that certain Bedis who came and 
nettled in Una and followed pursuits other than agriculture, did 
not follow general Punjab custom. The test, then, as regards 
presamptiau appears to be whether a body of Bedis have adopted 



(») m P. B., 1898. (•) 28 P. B., 189X. 



1907. ) OIViL JinDCnnSif fS^N^ 84. 1^ 

Agrioaltare for some generations past as their mode of earning a 
liTeKhood. It they have, the presamption is that they follow 
agrioaltaral castom ; if not, that they follow HiAdo Law, the 
harden of proof of a special oostom being on him who 
asserts it. 

This village belonged originally to the Gujars ; bat on their 
&iilare to pay revenae, Ajaib Ohand, father of plaintif! and of 
the vendor^ boaght it He is said to have come from Latiyan, 
^kiot Hoshiarpor, in 8. 1931- A.. D. 1874.75. We have no 
evidence as to the castom or law followed by the Bedis of 
Lntiyaa ; and thas, as matters stand, it can hardly be said that, 
in the matter of alienation, any castom oan as yet have been 
adopted or followed by this family in regard to alienation of an- 
oeetral estate. Plaintiff and his brothers are the first Bedi 
holders of ancestral efitate in the village. The onus of 
proof is thas on plaintiff, and he has in no way discharged it. 

It is not saggested that an enqairy at Latiyan wonld help 
maoh. 

I woald agree with the learned Divisional Jadge and dismiss 
the appeal with costs. 

Appeal dismisiedi. 

No. 34* 

Before Mr. Juetice Chatter ji^ C. I. B., and Mr. Justice 

Battigan. 

MAHABAJ NABAIf^,— (DBFiKDiiiT),-^APPELLANT, n 

y^sus C Appbllats Sim. 

BANOJI AND 0THERS,-(PLAMmfF8),— RBSPONDBNTS. ) 

Civil Appeal No. 586ofl90L 

OuHom^'Adoptiof^-^Adopiion by widow without authority from h^ 
husband^^Validity of such adoption -^Kashmiri Pandits of Pwijah'^Hindu 
Law, 

BM, that Kaehmiri Pandits of the Delhi District are proved to be 
goveroed in matters of adoption by custom and not by the principles of the 
Mitakshwta form of Hindu Law, and that amongst the members of that 
tribe a widow has fall power after her hnsbtnd's death, and w ithout his 
express permission in this behalf, to adopt any boy whom she Bel4»<'ts 
providkl he is of the tame tribe. 

First appeal from the order of Lala Ohuni Lal^ District Judge^ 
Delhi, dated ZQth November 1900. 

Shadi Lal| for appellant. 

Grey and Balwsnt Bai, for respondenis. 



182 



CIVIL JUDOlCBNTd— No. 84. 



[ Bioomi> 



The jodgment of 

18th Deer. 1906. Rattigan, J. ^The 

the Delhi aud Gargaon 

to explain the tacts :— - 

d 

r 

eS 



the Conrt was delivered by 

p irties to this oase are Ka»h niri Paudits of 

Districts aad the following table will help 



r-^- 



Si 



t 

o 
O 



SS 

Si3 



-SB- 






I 

8 

00 



£ 

ee 



n 



-s 



P9 



,-i 

6 



CO 

- 3 -Ii - 



V! 



I 






.1 

•s 

I 



;::; 

5 



II 




I a-d 
p a a 

p B 

s S 



CD a> 

Pi8 



i 



^5 






•5 25 



I 

s 

o 



08 
- U 



§ 



BS 
1*5 



■^ 



Ob flu "S 



a 



JO .2 
o *S 



P es 



5 

It 



I 

-a 



■s'i 



11 



MAmOH 1907. ] OIVIL JUDGMENTS— Na 34. J^33 

Pandit Prem Narain died in May 1879 leaving a widow, 
Mnsaammat Premwanti, and a large amonnt of property. 
After ber hnsband's death and for many years thereafter, 
Mnssammat Prerawanti entrasted the management of her 
affairs to Pandit Janki Parshad, who had married her eldest 
daughter, Mnssammat Jeoji. In or abont the year 1885, it is 
alleged on behalf of defendant, Maharaj Narain, Mnssammat 
Premwanti sent her servant Balik Ram to Kashmir in order 
to proonre for her a boy suitable for appointment as an 
adopted son. It is said that Balik Ram sncoeeded in in- 
dnoing one Seth Ram, also a Kashmiri Pandit, to allow 
his son, the said Maharaj Narain (present defendant) to 
be so adopted, and that the ndoption was thereafter celebrated 
with all due oereroonial. The natural father of the boy 
is said to have received about Rs. 500 from Mnssammat 
Premwanti as a gift in return for handing over his son to 
the lady. In 1889 the janao (or sacred thread investiture) 
ceremony is alleged to have been performed, in respect of 
the said boy, either directly or indirectly, through Mnssammat 
Premwanti. Upon this occasion it is asserted on behalf of 
defendant, that various members of the family were present, 
and received the usual dues presented at such times, and 
that Kailas Narain (the grandson of Dharm Narain) as the 
representative of the eldest branch of the family, invested 
defendant with the sacred thread. Among those who are 
said to have been participators in this ceremony was (so it 
is alleged) Mnssammat Banoji, the present plaintiff. 

In August 1894 Mnssammat Premwanti presented an 
application, under Act VIII of 1890, to the District Judge, 
praying for the guardianship of the person and property 
of the defendant, who, according to the statements made in 
this application, had been born in 1880 and was conse- 
quently a minor at the time. In this application Mnssammat 
Premwanti asserted that the minor was the duly adopted 
son of her late husband Pandit Prem Nath. A certificate of 
guardianship was accordingly granted to Mussammat 
Premwanti on the 8th December 1894. 

In February 1896 defendant was married, through the 

instrumentality of Janki Pershad purporting to act in this 

behalf for his mother-in-law, Muesammat Premwanti, to the 

sister of Pandit Bashesbar Nath, Hangal, a pleader of 

Akbarpnr in the Fywibad Distrirt. At this ceremony Mns- 



134 ^^^^^ jai>QlfBKT8-No. 34. ' [ Rkwo 

samtnat Premwanti was admittedly present and so also was 
her son-in-law Janki Pershad. It is also alleged that 
plaintiff, her husband (Jagan Nath) and her sons as well 
as other members of the family were also present at, and 
took part in, the ceremony. In 1895 Massam mat Premwanti 
execnted two deedn whereby she conveyed two houses to 
defendant whom she described therein as her adopted son. 
In May 1897 the aforeeaid Janki Pershad, as agent of 
Massaramat Premwanti, applied to the Revenue authorities 
praying that mutation of names migbt be effected in favour 
of defendant, as regards certain lands in mauza Bopas, 
Ourgaon District, which Mnssammat Premwanti held as mort- 
gagee. The tahsildar directed that an enquiry upon this 
subject should be made of Mnssammat Premwanti '* by means 
of interrogatories" (14th Jane 1897), an(? sabeequently 
directed that in acoordanoe with her wishes as expressed in 
tnRwer to the said interrogatories the mutation asked for 
should be grante.l (23rd December 1897). 

On the 2Qth January 1898 a similar application for 
mutation in favour of defendant was made by Janki Pershad 
in respect of the lands held in proprietary right by 
Mussammat Premwanti in mama Gh>palpara, in the same 
district. This application was granted on the 27th January 
1898, it being remarked in th^ tahsildnr^s order that Janki 
Pershad supported the application. In both of these applica- 
tions defendant was described as the adopted son of the 
late Pandit Prem Narain, and in each case the application 
was alleged by the patwari to have been duly proclaimed 
in the village. Defendant alleges that shortly after the date 
of this mniatioD, differences arose between him and Janki 
Pershad with the result that litigation against him was 
forthwith started. In March 1900 Bam Narain, the- son of 
Pandit Samp Narain, sued for a declaration that the 
alienations effected by Mossammat Premwanti in favour of 
present defendant were invalid as against him, he being 
the adopted son of the deoeasad Pandit Prem Narain. The 
District Judge found that Ram Narain's alleged adoption was 
not proved and this finding was upheld by this Court, though the 
suit was actually dismissed, on the ground that it was barred 
by limitation (see Ram Na/rain v. Maharaj Narain (^). The 
present suit was launched against defendant on the 14th 
April 1900. The plaintiffs are Mussammat Banoji (the 

"^^ "' (1) 8 P. R., 1904, ^' ^ ' 



Mabcb 190^. ] CIVIL JDDGMBNT8-N0. 34. l85 

daughter of MaaHammat Premwanti) and ber five sons. Tbe 
plaint mns as foliows : — 

" (1) Rai Bahadur Pandit Prem Narain died intestate at 
** Delhi on *the 15th May 1879, leaving no male issue. There 
** remained after him Mnssammat Banoji, the plaintiff, and 
*' his other daughter, Mussammat Jai Rani, and Pandit Sham 
*' Parshad, the son of his third daughter, Mussammat Jeoji, 

"deceased He (Prem Narain), left some 

" immoveable property, twenty-nine currency notes and other 
** moveable property, all being his self -acquired property. 

^ (2) On his death, he wan succeeded by his widow, 
'* defmidant No. 2 (i.e., Mussammat Premwanti) on a life tenure 
** according to Hindu Law. Bhe under Act XVII of 1860 
" obtained a succession certificate in respect of the estate of 
'* her deceased husband from the Court of the Judicial Assistant 
*" Commissioner, Delhi, on the 14th July 1879, and took 
'« poeseMion of all the moveable and immoveable property as 
'* well as of tbe currency notee. She is stUl in possession 
"^ thereof. 

" (3) Defendant No. 2 has become very old and weak- of 
** intellect. She declared defandant No. 1 as the adopted son 
" of Rai Bahadur Prem Narain by the following acts on her 
" part :— 

« (a) On the Uth December 1894 she declaring defendant 
" No. 1 to be an adopted son, obtained a certificate of 
" guardianship from the Court of the District Judge, 
«* Delhi. 
" (b) She caused mutation of names in respect of mauzas 
*< Bopas and Gfopalpura, in te^i^ewari, district 
" Qnrgaon^ to be effected in favour of defeedant No. 1 
♦* as adopted son of Rai Bahadur Prem Narain 
"in the months of December 1897 andJanuaiy 
" 1898. 
" (c) In the year 1895 she executed two deeds of 

"sale in respect of two houses in favour 

"of defendant No. 1 as adopted son of the said 

" Rai Bahadur. 

" (4) Defendant No. 1 was not as a matter of fact 

adopted by Rai Bahadur Pandit Prem Narain nor could he 

** be adopted according to law. He (defendant No. 1) has 

" uo relationship or coottection with the family in question, 

'* nor is defendant No. 2 competent to make any adoption 

" in the presence of pkintiffs. Defendant No. 2, who has a 



186 ^^^^ JUDGMENTS— No. 34. [ Bmoso 



" mere life intereU, has no right to affeofc an alienation of 
** the propartj ia favour of defendant No- 1, and the 
'* alienations made are nail and void. 

" (5) Plaintiff No. 1 daughter and plaintiffs Nob. 2-^, 
'* grandsons (dangbter's sons) of the deceased, are his surviving 
" heirs. The plaintiffs' rights are in danger on aooonnt of the 
" acts of the defendants mentioned in paragraph 3 of this 
" plaint. Cause of action accrued to the plaintiffs against the 
" defendants from December 1894 to 1898 at Delhi. 
(6) Plaintiffs tberefore pray— 

(a) for a declaration to the effect that defendant No. 1 
** was never actually adopted hy Rai Bahadur 
*^ Pandit Prem Narain, that he could not be 
*' adopted according to law, and that the alienations, 
" which have been mentioned in paragraph 3 of this 
'* plaint, and which were made by defendant No. 2 in 
^' favour of defendant No. I, in respect of the estate of 
" the deceased are null and void ; 

** (h) Any other relief to which, in the opinion of 
**the Court they may be entitled, maybe granted 
** to them ; 

" (c) the costs of the case may be awarded to plain- 
" tiffs from the defendants. " 

Defendant No. 1 at the time of suit was a minor, and 
** Mussammat Prem wan ti was appointed his guardian aS 
^* litem. Purporting to act on his behalf, she filed the follow - 
'^ ing written statement in answer to the plaint : — 

" The defendants admit paragraph 1 of the plaint, but there 
** is a misjoinder of the plaintiffs in the case. 

" (2) The defendants admit paragraph 2 of the plaint, but 
*' defendant No. 2 does not possess a life interest only. 
" She is heir with full powers. 

" (3) The defendants deny the allegations in paragraph 3 of 
*• the plaint to the effect that defendant No. 2 is old 
" and weak of intellect but they admit the other allegations 
** set forth therein. 

" (4) The defendants totally deny paragraph 4 of the plaint 

"(6) Defendant No, 2 adopted defendant Na 1 

** according to the custom of the tribe, and she was under 

" the law and custom fully competent to make such an 

"adoption. She adopted defendant No. 1 with the consent 



liABCH 1907. ] oiviL judgments-No. 34. 137 



"of aU th« family membeps as well as with that of the 
" female plaiutifF No. I aud oonsequentlj plaintiflf No. 1 
oannot now object to the adoption. Defendant No. 1 
iB the lawful adopted sou of Pandit Prem Narain, hus- 
*' band of defendant No 2. 

w (6) , , (immaterial). 

*' (7) The plaintiffs are not entitled to auy relief what- 
** ever. It is, therefoi-e, prayed that plaintiffs' claim may be 
"dismissed." This written statement was signed in Nagri 
characters by Massammat Premwanti and her thumb 
impression was also taken thereon. 

The following issues were framed :— 

" (1) Had Uussammat Premwanti, defendant No. 2, 
*' power to make the adoption in dispute under custom or 
" Hindu Law, which the parties follow. 

'* (2) Had she an absolute indefeasible right in the 
** property which she oDuld part with in faivour of 
" defenlafit No. 1, or only a life interest, subject to the 
** reyersionary rights of plaintiffs ? 

" (3) Did plaintiffs give expressed or implied consent 
" to the adoption, so as to debar their present claim P 

** (4) To what relief or reliefs are plaintiffs entitled in 
" view of the decision of the above issues P'* 

The o»tw probandi as regards all the issues was laid 
upon the defendant. One witness, Balik Eam, was examined 
on his behalf on the 23rd July 1900, and testified to the 
effect that he h%d, at the request of Mussammit Premwanti, 
induced the natural father of defendant No. 1 to aUow 
bis sou to be adopted by that lady ; that defendant No. I 
was so adopted with all due ceremony; that Mussammat 
Premwanti some years later had the janeo ceremony per- 
formed as regards the boy ; that Pandit Dharm Narain's son 
(Kailas Narain) invested the boy with the sacred thread, 
and that subsequently Mussammat Premwanti had the boy-s 
marriage ceremony performed. On the 24th July 1900 (».e. 
to say, the day after the examination of Balik Kam) an 
application was made to the District Judge for the removal 
of Mussammat Premwanti from the guardianship ad Htem of 
defendant No. I, and for the appointment of some one else in 
her place, it being alleged in this application that Mussammat 



138 CIVIL JODGMBNTS— No. 84. [ RicoBi^ 

Premwanti was not ** defending the minor's interests properly." 
This application was (granted on the same date add the Oonrt 
Nazir wa« appointed gnardian ad litem in her place. It seems 
tbaft the new guardian ad litem did not produce any further 
evidence on behalf of the minor on the 2Uh Ootobar 1900, the 
date fixed for the hearing of any 8U(th evidence. The case was 
accordingly adjoarned to the 29th November, on which date the 
guardian ad Htern informed the Goutt that his ward was over 20 
years of age and fully able to look after his own interests ; that 
he had not received any instructions from him since the previous 
September, and that he had, in consequence, no evidence to 
produce. The District Judge thereupon held that the defendant 
had failed to produce evidcoice to prove the truth of the allegations 
made on his behalf, and that the suit must, therefore, be 
decreed. This was on the 30th November 1900, and a decree was 
passed accordingly. 

On the 2nd January 1901 the guardian ad Utem prayed that 
the said decree might be set aside on the ground that the minor 
was ill at tiie time when the hearing was fixed for the 29th 
November 1900, and that there was now ample evidence avail- 
able to refute the plaintiffs' claim. This application was rejected, 
the District Judge holding that the proper course was for the 
gnardian ad litem to either apply for review of judgment or 
appeal against the decree if not tima-barred (see order dated 
20th March 1901). Accordingly an appeal was presented to 
this Court on the 17th June 1901, and was accepted by the order 
dated 4th December 190.S, it being held by the learned Judges 
that sufficient cause (within the meaniag of Section 5 of the 
Lioutation Act, 1877; bad . been shown for not presenting the 
appeal within the ordinary period prescribed for appeals and 
the appeal was admitted to a hearing. 

As regards the merits of the case the Court observed " it 
** appears that no evidence has been produced on behalf of appellant 
" and it is hardly possible that there was none to be adduced." 
The learned Juderes accepted appellant's explanation that he 
was unable owing to illness to instruct his guardian ad Uteui 
(the Haid Court Nazir) regarding the witnesses to be called 
in support of his defence, and considered that ** a suffident 
" case had been made out for permitting him to adduce his 
" evidence." The Court's order proceeds ; '* We return the oaee to 
" the District Judge in order that all the evidence of the appellant 
'* 9n the issues framed may be taken and abo any evidence that 



MiBCH 1907. ] CIVIL JUDGMIHTS-No. 84, 189 

'* plAintiffB respondents may wish to produce. It was stated 
^ by the Appellant in the lower Gontt that he had^been adopted 
'*by Mossammat Premwanti ander authority given by her hns- 
** band. No issue was framed on this point and we request 
" the DiHtriot Judge to examine the Hppellant upon it, and if he 
*' is able to make a definite statement to put it in issue and to 
** allow both sides to produce evidence on it. Tbe remand is 
"made under Section 566 and Section 568 of the Code of Civil 
" Procedure as amended by Sectior. 68 of the Pupjab Courts Act. 
" The lower Court is i equested when sending the evidence to give 
** its opinion as to its credibility and value and its findings on 
" the points in issue." 

In oompliance with this order the District Judge examined 
Maharaj Narain, appellant, with reference to the alleged authority 
to adopt g^ven by ht r deceased husband to Mussammat Prem- 
wanti, and finding that the appellant oould make no definite 
statement on the point, the learned Judge decided that there was no 
need for a " fresh issue." The parties were, however, given every 
opportunity of adducing evidence and a very large number of 
witnesses were examined, some in Court and others through 
interrogatories. The District Judge has duly considered this 
evidence and his opinion is that the Kashmiri Pandits of Delh^ 
are proved to be governed in matters of adoption by custom and 
not by the principles of the Mitahhara form of Hindu Law ; that 
there it good evidence of the fact of Maharaj Narain's ** adoption ". 
that ** there is overwhelming evidence that he has for many years 
*' been treated as the adopted son of Pandit. Prem Narain by 
'* Mussammat Premwanti, by tbe family of Pandit Prem Narain 
"and the clan of Kashmiri Pandits generally;'* and finally, 
that tbe said adoption is valid by the custom obtaining in the . 
tribe to which the parties belong 

For respondents Mr. Orey objects that the opinion of tbe 
District Judge is inadmissible and should be disregarded 
altogether, inasmuch as the remand was made under 
Section 568, and not under Section 566 of the Code. 
It is true that this Court in its order of the 4th December 1903 
did not frame any issue for trial nor did the District Judge 
deem it necessary to frame a fresh issue. The remand was conse- 
quently not properly one under Section 566 and the opinion ex- 
pressed by the District Judge cannot amount to a finding with 
regard to any of the issues upon which evidence has been taken. 
But in a case suck as the present, when practically no evidence 
was given at the time of the original trial and the whole of the 



140 ^^rVf^ JUD0MBNT8— No. U. [ Ki6ord 

case had to be 9ent back for trial, we see do reason why we 
shoold be dttbaiied f rem taking into cocsideratioD the opinion 
expressed by the Pistrict Judge fb IcgfiTd^ tbe credibility and 
valne of the evidence taken by him. We do not regard his 
observations as amonnting to distinct findings. They are merely 
the exprcFsioiB of rpinicn oi the oflBcer ntbo recorded the 
evidence, std it is merely in ihnt light and to that extent that 
we have referred to 1 hem. We shall, of ^coarse, ourselves have 
to decide the points which call for detei mination, but as a 
gaide to oar decision we are, we consider, folly justified in 
having regard to the DiFtrict Jndge's opinion as to the credi- 
bility or otherwise of the witnesses. To come now to the 
qnestions npon which we have to give a decision. They are 
as follows : — 

(a) Whether Maharaj Narain was in fact adopted by 
Massammat Premwanti,and if so, when snch adop- 
tion took place ; 

(h) Whether an adoption by a widow, who had obtained 
no authority in that behalf from her deceased husband 
in the latter's life-time is valid among Kashmiri 
Pandits of the Delhi District ; and whether there is in 
such cspee any distinction recognized between the 
adoption of a boy who is a stranger and of a boy 
who is a member of the deceased husband's family ; 
and thirdly 

(e) Whether in any event the suit . should be dismissed 
(1) on the ground of plainttfPs' nequiesoence^in the 
alleged adoption ; (2) ss being barred under Article 
118 of the second Schedule to the Indian Limitation 
Act, 1877. 

We will proceed to deal with these questions sertaiim. 

(a) In our opinion the factum of the adoption is most 
clearly and conclusively established. It appears that about 
five cr six years after the death of Pandit Prem Narain, 
his widow, Mussammat Premwanti, a lady who was, aa 
the evidence shows, of singularly forceful character, decided 
to adopt a bojr, and with this object commissioned an old 
servant of the family, the witness Balik Ram, to procure 
her a suitable youth from Kashmir, thst being the country 
from which these Kashmiri Pandits originally come and 



Mabch 1907. ] CIVIL JUDOMBNTS— No. 84. 141 

from whioh (according to the majoritj of the witnesses, 
see as to this the eridence of Lachmi Narain, Pandit Prem 
Natb, Pandit Pran Nath, Pandit Bishan Narain, Pandit 
Trihbawan Kath, Pandit Janki Pershad Shanghi, Pandit 
Gayohi Pershad, Pandit Pnjare La), Pandit Maharaj £[ishen, 
Pandit Hari Kishen) it is nsoal to get boys for adop* 
tion when there is any difiionlty in obtaining a boy belonging 
to the family. 

Balik Ram testifies as follows :—»** After I had been in 
** Kashmir for one month, Ram Ghand, my brother, now deoeas* 
"ed, indicated one Pandit Seth Ram as a person likely to 
*' give one of his sons for adoption. I called upon Setb Ram, 
** who agreed on tbe oondition that his debts were paid to the 
" extent of Rs. 600. I wrote to the widow Mossammat 
** Premwanti nnd she agreed to pay Rs. 500, and wrote a letter 
^ to me which I have now got. She sent Rs. 200 out of which 
*' I paid Rs, 100 to Seth Ram on acconni Seth Ram agreed 
*' to give Maharaj Narain, then aged five, for adoption, and he 
^ bronght the said Maharaj Narain with him to be so given and 
** I came with them. Seth Ram stopped here for aboat 15 days 
" and gave the said son to Mas6ammat Premwanti and received 
'* Rs. 450 from her as also a goahwara and two pieces of mnslin. 
** Since then the boy has been with Mossammat Premwanti 
" and has been bronght np with her." This evidence is corro- 
borated by that of Mossammat Premwanti herself, and that too 
at a time when she was admittedly hostile to the claims of 
Maharaj Narain and had in fact brought a suit to have it de* 
dared that the said Maharaj Narain was not the adopted son 
of the late Pandit Prem Narain. In her evidence given on the 
31st July 1904, the lady admitted that she had had Maharaj 
Narain bronght from Eishmir abc»at 17 or 18 years previoasly. 
She no doubt adds that he was merely a lapalak and treated 
as snob, but, as we shall presently show, this part of her evidence 
is clearly false. 

Next we have the evidence of Pandit Lachmi Narain who 
is the guru or family priest of the parties. He deposes at 
follows:—**! know defendant. I have knovm him since he 
** came here. It is nineteen years since he came from Kashmir. 
"Pandit Prem Narain's widow called him. He was called 
*« for adoption. He was adopted. 1 witnessed the adoption 
«* ceremonies. Defendant was four or five years old at the tim». 



1^2 ^^^^^ JUOGHBKTB— No. 84. [ Bio^ed 

" At the adoption, the daaghtera of Pandit Prem Narain were 
" present. Mossammats Banoji and Jairani were both present. 
'* Janki Persbad, son-in-law of the widow, was there too. A 
'* feast was given to the brotherhood and sweets were distribnt- 

<' ed When Maharaj Narain was adopted, Pandit BiehiB;i 

, ** Narain (the father of the deceased Pandit Prem Narain) 
** and his three sons were alive. They knew of the adoption, 
" bat raised no objection to it. Dharm Narain having only 
*' one son, explained that he oonld not giveaway that son in 
*^ adoption. At the adoption sweets were distributed and the 
«« boy was put in the lap of Mnssammat Premwanti." We see 
no reason to disbelieve the evidence of this witness, nor did Mr. 
Grey disclose any in the course of his argument. The witness 
IB a person who wonkl in the natural course of things have been 
l^^oent on an occasion of this kind, and it is hai'dly likely that 
he, the family priest >cl tbe parties, would go out 6f his way to 
•perjure himself on behalf of one who was in no sense member 
of that family. 

In support of the adoption, there is also evidenoe of Pandit 
Janki Nath, Madan Rai Bahadur, Psndit Gobind Lai, Pandit 
Janki Nath (son of Pandit Bam), Pandit Murli Dhar, Pandit 
Man Mohan Lai, and Pandit Pirthi Nath. These witnesses 
are intimately acquainted with the afiairs of Pandit Bishen 
Narain's family, and as regards them also no valid reason was 
given for discrediting their evidence which on its face, at all 
events, appears to be true and straightforward. 

Then, again. Pandit Janki Pershad, the son*in-law of Mns- 
sammat Premwanti and the person who is alleged to have 
atirn>d up this litigation, stated in the case brooglit by Mwsam- 
mat Premwanti against Mahamj Narain, to which we have 
already referred, '* Maharaj Narain ho mutbana bhi mtdn ne 
Ko$km£r se haqimat Rs. 500 lagakar haraya Iha.** We have 
also pointed out that Mussammat Premwanti when giving 
evidence in this case asserted that she had not adopted Maharaj 
Narain and that she regarded the latter merely as a lapalak. 
In the written statement, however, which in her capacity 
of guardian ad-litem she filed on behalf of defendant, the 
lady distinctly stated that she had adopted '* defendant No. I," 
(t .«., Maharaj Narain) " according to the custom of the tribe " 
and "with the consent of all the family members, as well 
as with that of the female plaintiff, No. 1 (Mussammat Banoji),*' 
ard " that defendant No. 1 as the lawful tidopted won of Pandit 



tt^MB lOOr. ] OIVIL JUD&Ml!NT8-4fo. 34. 146 



Pf»«i Nftmiii, ha^baiMt of djfeaint No 2** Th's wriUen 
8Ulbfl»3at w^dal/ sig lod by Mawamtnat Premwanti and her 
thaiab iniprdssioa wa» tak)i thereoa Agaia, it has, we 
tUnk, been folly OBtabliahed (see evideooe o£ Qobind Lai, 
Lmsbtfii NarAio, Mnrli Dhar, M^n Mohao Lai, Pirthi Nath, 
Pimdit Prem Nath) that MoMainmat Premwanii bad thejoneo 
(aoisred thread inveQtitnre) oeremony performed in 1880 for 
MAharaj Karain ; that^ the saored thread was put on the boy 
by Kailafi Narain, the grandeoB of Dharm Naraia ; that 
members of the families of Paudit Prem Narain and of Mas- 
saminat Premwanti were present oa the oocasioa and 
reoeiTod costornary does which they certaioly would 
not haire received unless the boy h%d aotaally baen adopted 
by Moseaiaeaat Premwanti as a Aon, and that Pandit Dharm 
Narain's wife gave alms to Maharaj Narain. These faots are 
testified to by a laege number of witnesses) and their evidence upon 
those points is not serionsly challenged. Gvea Massammat Prem- 
wanH, in her evidenoe, was forced to admit its troth, though she 
had also to admit that '' correspoadeace" was taking plaoe between 
plaintiff, BCnssammai Banoji, and herself with reference to this 
caae and that " as she directs me so I represent it in Ooart" 

It is alleged that aboot Bs, 10,000 were speot in connection 
with this ^aneo oeremony and the harat or procession through the 
city which followed it. (See evidence of Lachmi Narain, Pandit 
Prem Nath and Mossammat Premwanti, the latter admits that 
about lis. 2,000 were spent). There is no refutation of this 
allegation, and if such a large sum was actually spent, it is 
impossible to believe that the boy was not regarded as the 
adopted son of Mussammat Premwanti, just as it is inconceivable 
that Kailas Narain would have invested him with the saored 
thread or Mussammat Dharmwanti would have presented him 
with alms, had he been a mere Inpnlak of Mussammat 
Premwanti. 

Mossammat Premwanti has further to admit that in 1896 
she Imd Maharaj Narain married to the sister of the witness, 
Baahnsher Nath, Hongala, pleader of Akbarpur in the Fyzabad 
Distriet. On this occasion also several members of the family 
were preeent and participated in the ceremonies. 

It is asserted on behalf of defendant and strenuously 
denied by plaintiff, Mnssammat Banoji, that she and her husband 
were also present at both the Janeo and the marriage 
ceremonies. It is noticeable in this conneotioa that plaintiiTi 



144 OIVIL, JUDGMENTS— No. 34. [ Ricobd 



ha-»bind who admifcfcedly Cgures io the group of persona whose 
phofcoflfraph was taken the day after the marrUge has not oome 
forward to deny the allegation that he took part in the latter 
ceremony. Upon a careful coninderation of the evidence we have 
no donbt onrnelves that Mnssammat Banoji and her hnsband 
participated in both ceremonies. (See evidence of Oobind Lai, 
Lachmi Narain, Marli Dhar, Man Mohan Lai, Pirthi Nath, Pandit 
Prem Nath, Pandit Bishambar Nath, Pandit Hirde Narain, 
Pandit Bashasher Nath Tbaknr Gajraj Singh). There is a mass 
of respeotAble evidence to that effect and as regards the janeo 
ceremony, the accounts produced to show what snms were paid 
and to whom on that occasion, dts !lose certain payments to 
Mnssammat Banoji. These accounts are in the handwriting of 
Pandit Janki Pershad. Mnssammat Banoji's explanation to 
acconnt for the fact that she did actually receive some money at 
the time when the ceremony of janeo was performed is not 
at all clear nor does it carry conviction. Mnssammat Laohmiji 
daughter of Pandit Dharm Narain on the other hand admits that 
she did receive the usual dues on the occasion of the janeo^ and we 
see no reason to suppose in the face of the accounts that 
Mnssammat Ban>ji did not receive her shire also. Taking 
everything into consideration we find it impossible to believe 
plaintiff's statement that she had nothing to do with and in no 
wise participated in the defendant's janeo and m-irriage ceremonies. 
Under these circumstances it would be difficult for plaintiff No. 1 
to sncceed in the present case, even if it were proved that the 
adoption of Maharaj Narain was not valid by the law observed 
by members of the Kashmiri Pandit community. Her aoquiecenoe 
in this particular adoption for so many years would have been a 
serious bar to her present claim. But for the moment we are 
not dealing with this aspect of the case and we merely allude 
to plaintiff's presence at the two ceremonies with the object of 
showing that Maharaj Narain had actually been adopted by 
Mnssammat Premwanti and had for years been regarded as 
that lady's adopted son by the members of the family. Additional 
facts to support our conclusion in favour of the factum of 
adoption are these :-(a) In 1894 Mnssammat Premwanti applied 
under the provisions of Act VIII of 1890 to be appointed 
guardian of the person and property of Maharaj Narain and 
in her application described the minor as her adopted son. 
(6) On the 22nd May 1895 Pandit Janki Parshad petitioned the 
Revenue authorities with a view to having mutation of names 
in respect of lands in mauza Bopas effected in favour of Maharaj 



MAaca 1907. 1 OIVIL JUDGMBNT8— No. 84. 145 

Narain, who wa,* sfcited ia the a^pUci&loa t> b) the adopted son 
of ^aalic Pren Nifiin Lrp>a tbia applicitioa, the tah^iHar 
dir«3otel th^fc enqiiry ah )a!d ba raida of Ma^Sinamat Prdmv^adti 
by means of interrogatories as she resided at Delhi and the 
application was made by her general agent. Enquiry was made 
accordingly, and Mossaromat Premwanti expressed her consent 
to the ** gift of the land in qnestion." Mntation of names was 
therefore ordered in favour of Maharaj Narain (23rd December 
1897). (c) A simiUr application was made in January 1898 
by the said Pandit Janki Pershad, (who again represented 
himself to be the general agent of Mnssammat Premwanti), as 
regards mutation in respect of lands in MauSa Gopalpnra. In 
this application too Maharaj Narain was described as the adopted 
son of P^aiit Pfdin Nirdiii. (i) P. adit Bishjuher N'nth, Einial, 
duposes that before ho consented to the marriage of his sister 
with Maharaj Narain, he had full inquiries made regarding his 
sister's intended husband, and was assured by Pandit Prem 
Narain's family and others* that the adoption had taken place 
and that Maharaj Naraio wa-* recognized by th ^ m>mb)rs of 
that family as one of themselves. There is no reason why ^\ 
flhonld not credit this evidence. The enquiry would ba a very 
natural one as the witness himself belongs to a very re-^pectable 
family, and a marriaflfe of one of the ladies of that family 
wonld scarcely be allowed to take place unless and until proper 
enquiries had been made regarding the position and family of 
the proposed husbind. It is in the highest degree improbable that 
Pandit Bashasher Nath won Id have consented to the marriage 
of his sister with an unknown waif and stray, and we can only 
conclude that he id speaking the truth when he tells us that he 
gave his consent to the marriage because he was assured by rela- 
tives and friends of the Hakchar family that Maharaj Narain 
was the adopted son of the late Pandit Prem Narain. (e) Finally, 
there is no doubt that until the present litigation at all events 
Maharaj Narain has been always regarded as one of the 
Hakchar family. Upon this point in addition to the evidence 
of the witnesses, to whom we have already referred, there 
is the evidence of Pandits Hirde Narain and Bishambar Nath. 
Moreover, it is proved that two witnesses whose evidence is 
otherwise distinctly hostile to defendant, vtz,<, Pandits Janki 
Parshad (page 23 of the paper book) and Suraj Narain, Kanl, have 
in post-cards and letters addressed to defendant described him 
as Hakchar. When asked to explain this, Pandit Janki Pershad 
said that he so described the defendant beoanse Hakchar if the 
caste of his mother, and he added *' I admit him to be the adopted 



146 ^^(^ j^moumns^tU}. m. C RMdm 



^^ won of his mother and not of his father." The witness did 
not ftirther expUin how a boj who was the adopted son of 
Mnswamtnat PremwanH, aad yet not the adopted sou of 
Mtissammat Premwanti's haaband, coald take the family name 
of the latter. Pandit Saraj Narain, Kaal, (page 81 of paper book) 
is the son*in-law of Pandit Sa rap Narain, who was the brother 
of the late Pandit Prem Narain. He is then also the brother- 
in-law of Bam Narain whose olaim to be the adopted son of 
Pandit Prem Narain was dismissed as not proved. He explains 
that he addressed Maharaj Narain as Hakchar becanse the 
*' post-card was meant for a woman of the Hakchar family/* and 
he thonght that by addressing defendant as Hakchar the card 
wonld reaoh its destination more sorely. It seems to ns that 
both these explanations are singalarly lame, and that the real 
reason why defendant was addressed as Hakchar was becanse 
he was at that time recognized by the Hakchar family as one 
of their member. 

For the i^bove reasons we find that defendant Mahan^j Narain 
was sotnally adopted by Mossammat Premwanti, and that the 
adoption took place abont the year 1885. For respondents 
Mr. Grey argned that it was very hard to meet defendant'a case 
npon this point as the allegations as to the time when the 
adoption oocnrred had varied from time to time. In support of 
this argnment, the learned oonnsel referred ns to para* .3 of the 
written statement filed by Mnssammat Premwanti on behalf of 
defendant where it is stated that except as regards the alleged* 
incapacity of defendant No. 2 the other allegations in para. 3 
of the. plaint are admitted. In para. .3 of the plaint it was, no 
doabt, pleaded that " defendaut No. 2 " had declared defendant 
No, 1 as the adoptod son of Rai Bahadnr " Prem Narain " by 
oeiiain acts therein specified, and the argument is that defendants 
oottoaded. that it was by reason of these acts and of these acts 
alone that defendant No. 1 asserted his adoption, we cannot 
however' pnt. this strict oonstroction on para. 3 of the written 
statemeoti On the contrary we think that the obvioas meaning of 
defendants was that thay admitted that Mnssammat Premwanti 
had dGuie the aoiSs specified in third para, of the plaint. They 
oeptainly did not intend to admit further that no adoption had 
taJteoi plaoe^ before the date of the first of these actsi for the only 
witnes8iC«Uediortbe defence (before the remand) was examined 
with th# object I of proving that defendant Maharaj Narain haid 
been btooghi from CaahnuTf in or aboat 1885, and had then 
and theire beeB<ade|Kte4 by Mopsavunat Premwanti. 



Mmch 1907. ] 0I7IL JUI>tilDDNl«-19o. 34. '^ 

Mr. Qtey's next contention was that aooording to some of 
the witnesses who were examined after the remand, Maharaj 
Kurain's adoption was effected with all dne ceremony shortly 
after his arriral from Kashmir whereas other witne(»8ep, if they 
did not in so mBuy woids expressly say io, tit all cTentP implied 
that the adoption was actDally eflected hy the perfoimance of 
tlie janeo. We are again nun hie to accept the argument. 
Taken as a whole, all that the evidence goes to show is that 
t^ boy was brought from Kashmir and duly adopted, and that 
he was thereafter treated by Mnssammat Premwanti and the 
oth^r members of the family as one of themselves. No witness 
either says or, in onr opinion, implies that it was the janeo 
ceremony which effected the adoption of the defendant ; they all 
certainly refer to this ceremony, but they do so beeanse they 
were all of the opinion that it would not have been performed 
by Mussammat Premwanti or have been participated inbyKailas 
Narain and the other members of the Hakchar family unless 
the defendant had previously thereto been recognized as the 
adopted son of the late Pandit Prem Narain. 

(I), The next^iuestion is whether the adoption of Maharaj 
Karain, which was admittedly made without the permisflfion 
ci Pandit Prem Narain, is valid by the law obtaining •anNAig 
the Kashmiri Pandit« of the Delhi District. These Kashmiri 
Pandits are high caste Brahmins and are in most respectn 
governed by the Hindu Law and by the ptinoiples of this law (a^ 
stated in the Mitahihara\ it is clear that an adoption such as 
that of Maharaj Kataiii wonld be invalid. Under tkeee 
cironmstanoes it was clearly incumbent u^on defendant to prove 
that his adief>tion was valid on the ground in this particrolar, 
ifae custom of the parties' tribe had vedified the principles of the 
Hindu Law. We held that the onus pfobandi rested heavily 
on him, and we accept witliout reseiTation the dieta in E*i^a 
Nomd ▼. Snrgiani (^) (at page 228) to the effect that «Videi»ee in 
flvpport of the alleged custom must be snoh as ebews that 
generally in the district the custom waiilolbwed to the exelttsinn 
of persons who, if it had not been lor the ouskm, w«uld 
preaumably have " enforced their right uftder the general 
law." Conceding this we are of epinioo that in this case 
defendant has succeeded in proving that in the matter of such 
adoption as the one with which we have to deal tiie Kashmiri 
Pandits of the i ^Vki District do not follow the strict priwevples 

r I - ■ - ■ 

0) LL.B,Zn AU^^l. 



146 ^^^ JUBOMBfrre— No. U. [ Bbcokb 

of the Hindu Law. The eyidence shows that amongst them their 

women folk exercise p great deal of power and that (in the 

words of one of the witnessep, Pandit Janki Nath), their women 

^* have more anthoritj tl^an their men /' or, es the same witness 

rather patbctictiDj addp, they are " the slaves " of their women. 

A Teiy striking illDsiiaticn (f the tinth if this rcmaik Is to be 

f onnd in this very ease, for we have it on record that Pandit 

Prem Naiain in his lifetime wished to adopt Bam Naraio, the son 

of his own brother Samp Narain, bnt was anable to give effect 

bo bis wishes owing to the opposition of his wife Massammat 

Premwantt, who *' pent back '' that boy. Having regard to the 

extraordinary inflnenoe possessed and exercised by the ladies we 

do not 6nd it difficult to believe that in a matter which so 

nearly affects the ladies of the family as that of the adoption of 

a son, the principles of the Hindu Law have been very 

considerably departed from by these Kashmiri Pandits. If the 

ladiee are as powerf ol as the evidence shows them to be, it is no 

matter for SDf prire to find that in the selection of boys to be 

adopted thnr vc^ice h coielnfive. And if a lady of this tribe 

can aibitrarily Kfuse to accept as an adopted son a boy whom 

I'.er hn^bard wifhcs to ado) t, it almost necessarily follows that 

she can after her hasband's death adopt as a eon any boy whom 

she desif es to adopt. And this is the parport of the evidence 

npon this issne in the present case. Beading this evidence, we 

can come to no other oonolasion. The witnesses on both sides, 

and thf^y are nearly all persons of the most onimpeachable 

character, are practically nnanimons in asserting that, whatever 

may be the mle of the Hindn Law, amon» the members of the 

Kashmiri Pandits tribe a widow is competent by long established 

Qsage to adopt any boy, provided he is of the same tribe, end 

that in order to validate such adoption it is not necessary that 

she should have received her late husband's permission in this 

behalf. The more respectable of plaintiff's own witnesses 

practically concede thi«. Diwan Pandit Narindar Nath, for 

example, gives the following answers to the questions put to him. 

** According to the Dhatmshastia^^* he says, " as far as I know, 

'* a widow cannot make an adoption, without the peimifsion 

" of her husband, but among the Kashmiri Pandits there p 

'* a practice contrary io the above. The point whether the 

*^ violation of the rules of Lharmahaatra in this behalf amount 

<< to custom can be disposed of by a Ccvit." Be adds that 

practically " the principles of the Dharmshaitra are not followed 

*' in the matter of adoption " and that ** there are many instances 



t«07| oiytL jfoavhittta-itiK si 



149 



in which widows made adoptions without the peirmission of their 
hnabands, and of these instances he proceeds to g^ve three which 
occurred to his knowledge. Pandit ^ IfaiHndi^ Nath, who holds 
high execatiye oflBoe in this* Province, is nnahte hithi^lf to say 
whethar this custom would or wo lid not he rM>g^i^eid 
as valid hj the Courts, hut he adds that Eashthirl Pandits " al^ 
" not men of litigious character ; mirdf^ver they thfnk it a sOtt 
^* of disgrace to go to Oourts for fighting cases relatiri({ to family 
" quarrels. They are prepared to make alteratidns* in' their 
** customs according to the change of timid. In many matiiei^ they 
" appear to have violated the pwnciples of the Dharm^ka^ra^ hut 
'* as far as I thmk these violations have not as yet heen declared 
" as customs by the Oourts of the British Government." With 
reference to these remarks, we may observe before proceeding 
that the reason why no authoritative decisions reg^i'ding these 
" violations ** of the principles of the Dharm8ha<ttra has hilherlo 
been given by the Oourt is obviously becfemse the metlA>^V^ of 
the tribe have accepted then without demur and no appeal has, 
till the present case was instituted, been made to the Oourts. It is 
surely a strong point in favour of the instance of the custom and 
its recognition in the tribe that no such appeal has been made, al- 
though admittedly in this particular the principles of the DKarm- 
ikoitra have been very frequently " violated.* ' Another most 
respectable witness for plaintija is Oiwan Pandit Bam Nath, who 
was for many years a District Judge. He says, '' custom has super- 
^ aeded Dharnuhastra. In some cases we follow Mitakshdra^ but 
'* in each and every case custom has preference. In my opinion a 
^ widow cannot make an adoption without the permission of her 

"husband, according to Dharntshcutra , but according 

*< to the custom of our own sect widows made adoptions of th'eir 
*' own accord. The adopted boys became heirs and the' 

'' reversioners to ik no steps, I have stated above thaf 

'* a custom has come into force according to which a widow' can 
'* make an adoption' without the permission of her hnsbaUd." 
Pandit EUim Nath there g^ves fonr instianceR of such, adoptions. 
Pandit Jaaki Pershiadi Deputy Oollector, let g^rade, is a witnees by 
no meane favourably disposed' to d^todant^ and* his' grandson 
is betooihed to phtintiff's dangfater. But even he has to admit 
thai widows made adoptiens in respect of '* moveable property 
** withont the permission of their husbands," and no ** near 
** collateral earner forward with a claim." This is the same person 
whoi wrote « post-card to defendant and^ addressed the lattar 
thereon ar H'ikihar Another witness for plaiQtiS s is Pandit 



eWO oiv» jin>fntt||jfra-r?rp. .^4, 



Bishambar Nath, a pleader of the Allahabad High Oonrt* 
He admits that " the members of our caste are goyemed 
"by the Mitakshara SAflwJra, and the custom which is lawful 
"is also followed, and is, in my opinion, enforceabla" He 
states that in aocordande with the Mitctkshara a widow cannot, 
without the permission of her husband, lawfully "adopt a 
** boy,'' but he also admits that as far as he heard, and 
learnt from experience, " adoptions " are m^de according 
to custom in our sect, but I cannot say how far the 
'* custom opposed to MitaJuhara Shanira can be held valid. In 
"my opinion, the principles of HitaksKara aro not fully 
" followed." He further states that to his knowledge than 
have been several instances in which widows made adoptions 
of their own accord and without the permission of their deceased 
husbands, and that he remembers that " some adopted boys have 
" received the inheritance of the widow's husbands on aoconnb of 
"there being no dispute.'' 

lo addition to the above evidence which was given by plain- 
tiffs own witnesses there is a mass of evidence adduced by defen- 
dant in support of hta allegation that such an adoption as his 
is valid. Pandit, Prem Nath, who was lately an Biaminer 
of Accounts, P. W. D., for example gives no less than 
14 instances of such adoptions, and defendant has been able 
tD prove 8om3 60 instanoea in all * The witnesses who depose 
to the custom in his favour are almost all of them persons 
of position and of the highest character, and we can see 
no reason for refusing to bdlieve their testimony, corrobo- 
rated as it is by the evidence of plaintiff's own witnesses. 
It will be observed that nearly every witness who deposes 
to the custom is iblo to point to concrete cases in which 
effect has baen given to the custom within his own 
knowledge. 

Mr. Grey criticised this evidence and argued that the 
witnesses did not give full details as to the nature and 
extent of the property inherited by the adopted boy, or as to the 
existence of collaterals entitled to object. The learned counsel 
urged that it might well be that in some cases the oollaterala 
gave their consent to the adoption, and that in other oases 
the property was of saoh trifling value that the collaterals 
did not oonsider it worth their while to contest the adop- 
tiou. But this criticism does not appear to us to carry 
muoh wdight in view of the fact that no attempt whatever 



1907. ] OlViib JUPOttSMTEMlffUL ai. < |{( j 



wms made bj pUiatiffi to rafatQ or Qxpk^ia ,fcha .Hiatanoe^ 
testviied tp by the witne^sea. la almqei every oaae, ihe 
witness cooo^rned . gaye saoh particalaop.as wpnld hi^ye euabM 
plaintiSi to pYo4Bee evid^Qee (if ,Qaqh- ; had been aysilabla) 
io show that the instanoe referred to ,wa^ of.QO Vf^li^e . ^ 
a precedent^ or was, explainable on groands whioh did not 
exist in the present oaee. But po evidence , was ffiven in 
rebnttal and the oulj possible inference is that plaintiiEfs 
werQ qnable to produce each evidence. Nor do we consider 
the fact that in many casus the collaterals are said to have 
raised no. objection to the particular adoption, a point 
Q^s^l^^Ij in favoar of the contention that such adoptions 
5^iinpt be valid withoat the consent of the collaterals. On 
tjie cppjb^ry, lybl^n we find, i^ we do here^ that, a large 
number, of adoptions have .been made by, widows withoat the 
pannission of^ their, husbands^ apd tfiatin no one instance has 
any objection be^n rais^ by the l^asb^nd's collaterals, we 
can ibqt OPDCjlcide tl^^t ibfi reason for the ooUateral^ aoqaiescing 
ia .ttK9 adoptipi^ waf because the costpm of the tribe recognised 
theiv .validity^ In. connection, with the question of the validity 
of this, onstomy it is a. noticeable fact also that none of the 
nwale. members of Pandjt. P^emN {grain's family have contested 
4efen4ant'f adoption and that plaintiff herself took no steps 
to challenge il^ for vt^ry many years, Ey^n . according to her 
awn . allegations, she most h we knovYQ pf the. adoption in 
1994{» wbeu Mnssammat^ Premwanti appjf^ foi: a certificate 
of guardianship and yet the present, suit w^is not instituted 
until April 1900. 

Mr. Orey ali)o ctttioised the custom as being neither 
certain nor of any antiquity. ' The fi^st; objisction is not alto* 
gether Hitdli^ble to us as we cao find nothidg uncertain 
in the incidents of the custom. The second ground is also 
untenable. Ibete tA in this Province oo rule of law which 
prescribes any period during which a custom in order to be 
valid aiid enfoiceable must have been observed. It is sufficient 
to show that the custom actually prevails and is generally 
observed in the tribe to which the parties belong and there is 
no necessity to go further and to attempt to prove the 
impossible, viz.y that it has been observed in the tribe from 
a period to which '' the memory of fkieo runneth not to the 
contrary.** There is, however, on the record a great 
deal of evidence to the effect that the custom has been in 
^6g1le for generations, and that it very generally pi avails 



( 152 ^viL jm>QMW»^'^fUK u. ( 



among Kashmiri Pandits throaghoufc the Province, (see e.g., 
the evidence of Pandits Prem Nath Thesa, Pran Nath, 
Bisben Narain, Tribhawan Natb, Hirde Narain, Janki Perabid 
Sbangla, Oayotri Persbad, Mabaraj Kisben Ohakbosb, 
Bishamiutr Natb, Rajan). 

There is one pther argnnpent of Mr. Orey's to which 
W0 mnst briefly refer. The learned oounsel contended that 
acpording to the evidence there was no religious principle or 
element involved in these adoptions by widows and tbat the 
sole object for which they were recognised was for the 
purpose of gratifying the whims of the ladies. This being so, 
it followed that an adoption such as that of defendant was 
not an irrevocable act, bat could be set aside by tlie widow 
at any time. In the present case Mussammat Premwanti, 
. if she ever adopted Mabaraj Narain, had in the most un- 
equivocal manner disowned him before the institution of this 
suit and consequently be could not after ber disolaimer 
be i-egarded as her adopted son. We do not think that thk 
argument is justified by the evidence. The witnesses alleged 
that the object of these adoptions is either to perpetnat^^- 
the family name or to have some ooe who can take the place of 
a real son and perform those ceremonies whicb are easenttal 
foL* the spiritual welfare of the widow's deceased husband, 
e.g., ahrctdh, tar pan, etc. Some witnesses assert tbat such 
adoptions are effected for both purposes, and none of tbe 
witnesses assert that tbe only object in view is to please 
the widow. It would however be utterly repugnant to Hindu 
feelings and principles tbat a boy whose janeo oetemony 
bad been performed in a certi^ family should he liable to 
be thereafter declared oet a memb^ of tbat fanuly simply 
and solely because the widow who bad adopted him and 
made him a member of tbe family sabsequently wished to 
disown him and to tarn bim out of the family eiroie. 

After giving the case our most careful consideration, we 
most bold tbat defendant has clearly and conclusively proved 
that be was actually adopted by Mussammat Promwanti ; 
that the adoption took place when be was a boy of about 4 
or 5 years of age ; that the adoption was recognised by the 
members of Pandit Prem Narain's family, who thereafter 
ti^eatcd defendant as one of themselves ; and, finally, that 
tbe said adoption , even though effected by the widow without 
ber. late bMbbjA^id'e permibsion, is valid by the custom pre- 



1907. 1 oiViL rnMsmw->^o. 86. "^153 

TBiling among KaBhmtri PftnditB of the Delhi Distriot 
libwb in this lespect makes no distinction betweeo boys 
mko use, and boys who are not, memherB of the deeuased 
Jhafband's family, provided always that the adopted hof 
AVflt.hea Kashmiri EWidit. 

Upon these findings it is obvionsly anneoessary to 
disoQss the qoestions whether the present salt is barred 
nnder Article 118 of the Limitation Act, or whether plaintiffs, or 
at an evente plaintiff I^o. 1, have or has ho acquiesced in the 
defendant's adoption as to disentitle themselyes or herself to 
the relief claimed. 

For the reasons given we accept the appeal and dia- 
mwB the suit with costs throughout. 

Appeal Mow&d. 



No. 35. 

Before Mr. Justice Lai Chund- 

IiA&HA SINGM,— (Ddfkndamt),— APMLLA'NT, \ 

Versus I kvnttm fkwM. 

JOTA 8IKGH,-(Piiiimwr).— BBSPONDENT. } 

Civil Appeal No. 794 of 1904. 

Cmtom-^JJmn<UHm—8utthy revsrsiomer to enfvi-ts his right in tespsH 
to Ut^d on the ground that the aiiencdion had &Mn without necessity wkdoh 
alienation had already been challenged by his father on the ground ofpre'emp- 
U'on only — Locqb Bt&udi^Sstoppel by acquiescence. 

HM^ that the fact that at the mutatiom off a aalo of aoowiferal iounefable 
pit^rty by a obildleu male proprietor the nearest reversioner ospceosed 
hi* readiness to take it over ou payment of the sale pricoi but abstained 
from taking any action whatsoever in respeut to it during liis lifetime, is 
evfdenoe to prove that it had been acquiesced in as a valid sale, and 
ooDSeqeeaily the son of amch reversioner is debarred from sning to impeach 
the tale as invalid for want of necessity. 

Mucellaneous further appeal from the order of A. B. Martineau^ 
Bsquirey Divinonal Judge, Lahore Divmon, dated 8th June lUOi 

Tomer, for app^ant. 

Dhan Baj Shah, for respondent. 



^V54 OtVUi nJD0llSNT8-Ha tS. ( 

The judgment of the learned Jadge was as follows :-« 
8^^ ])§er. 1906. LalOhamD; J.— The question for decision in this appeal 

is- whather the sale sooght to be impeached by the plaintiff #iS 
aodepted'bj his father, and plaintiff is therefore estopped froin 
suing for possession of the property sold on the ground ttot 
the sale was not effected for necessity. Th^ lower Courts have 
differed, but it appears to me that the lower Appellate Goi^rt 
has jnot porrectly referred to the contents of tjbe mutation pro- 
ce^ipgs of 1888 in connection with the question of wairer. 
PlaiutifTs father Jamiat Singh did not then simply object to the 
sale, bat he objected to the sale on the ground that be /^a? 
ready to pay the money and he was accordingly directed by 
the officer conducting the proceedings to sne for pre-emption. 
This he failed to do, nor did be sue for a declaration that the 
sale will not affect his reversionary rights as being without 
neceesTiy. On the other hand a declaratory suit impeaching 
the validity of a subsequent sale by Fateh Singh in 1891 was 
instituted in 1898 by the present plaintiff through his guardian. 
Dnder the circumstance I #in./qf opinion that the sale in 
question has been acquiesced in as a valid sale and such acquiesc- 
ence estops plaintiff from suing or possession. This view is 
supported by Amif v. Zebo (*), Lahh Bin^h v. Chfi (•), and 
\ Muhammadt Begam v. Fadz Muhammad Khan ('), (an unreported 
St .^. * 41. jadgment in Civil Appeal No. 1201 of 1905) quoted by 
the learned . aounsel for appellant. It ' was HUB* 'down in 
Amir v. Zebo that subsequent §)lenoe may amount in soma 
oases to conduct precluding a suit to set aside the alienation, 
and the same view was concurred in and given effect to in the 
unreported judgment quoted for appellant. Labh Singh v. Qcpi 
wttoacuse where a suit instituted for pre-emption of the property' 
sold, but dismissed on account of failure to deposit the 
purchase money, was held to debar the pre-en^tor's grandson 
from suing to impeach the sale as invalid for want of necessity. 
The present case is not much different from the case in Labh 
Singh v. Oopt. Here no suit for pre-emption was brought 
and allowed to be dismissed, but plaintiff's father challenged 
the sale not for want of necessity but on the ground thai he 
was ready to pre-empt which he never did, though he survived 
the sale at least for seven years. His omission at in utations 
to attack the sale as unnecessary and readiness to take it over 
on payment of price coupled with his subsequent silence and 

(i) 4S P. B., 1908. (») 15 P. a, 19081. 

(•) Bmpa^lUif^, 



190^. ] CIVIL JUDOMlllTII-^No ti. :>((5 

plaintiffs own action, thoagh throngh a goardian impeaching a 
fnbeeqnent sale in which he was saooessfnl and taking no action 
as regards the sale now in suit till two years after attaining 
majority are oircnmstances in the case which prove that the sale 
sought to he impeached has heen acquiesced in as a valid sale. 
I therefore accept the appeal, set aside the order of remaud and 
restore the deorea passed by the ftrsfc Ooorfc dismissing plain- 
tiffs sait with costs thronghoat. 

Appeal aUowed, 

Not!.— Th9 followinjif is the nnpnblished case referred to in the above 
jadgment : — 

Before Mr. Jtiatice Chatterji, G. I. B,, and 
Mr. Justice Rattigan, 

1CDHAMM4D! BBOAM AND OTHERS,— (PuiNrnffs),— 
APPELLANTS 

7enu8 \ Afpmiaw Sim. 

PAIZ MUHAMMAf) KHAN,^DRrKNDANT),- RESPONDENT. 
Civil Appeal No. 1201 of 1901. 
Harris, for appellants. 
Devi Dial, for respondent. 
The judgment of the Court was delivered by 

Rattioai, J.— The parties are Afghans of the Jhajjar Tahsil, 7^^ y^,^^^ VdO^, 
Rohtak District. Briefly the facts of the case are that on the 
5th June 1897, one Saadnla Khan, the paternal uncle of 
plaintiffs, s^ld his house to defendant for a sum of Rs. 160, 
and on the I6th A£aroh 1900 he sold certain land to the same 
vendee for Rs. 50. The property so sold was admittedly 
ancestral. 

After the death of the vendor, his nephews brooght the 
present snit (on the 24th October 1903) for possession of the 
aforesaid property on the ground that the sales in question were 
without consideration and necessity and therefore not binding 
upon them. The defendant pleaded that the sales impeached 
were valid ; that there was consideration and also neoeesity 
therefor, and that in any event by the custom of the parties' 
tribe, a proprietor had an unrestricted power of aliaaatioo 
. in reepeot of aaoietral pvoperty. 



}i^0 onpid jmiemiim-Noi at, ( 

The first Ootrrt held adl defends nts* pleaa to be well found- 
ed and dismissed the nait. This decree was upheld I7 the 
DiTicfionfrl Jad^ on appeal, bnt the learned Judge decided the 
case on the point of en stem alone, and held that among the 
Afghans of the Rohtak District a sonless propriet'>r had an 
absolnte right to dispose of hi^ property, ancestral or acq aired, 
as he pleased. ITpon thi^ fiadiog it was obyionsly anneoessary 
for the lower Appellate Court to give any decision upon the 
questions of ooasideratioa and aaoe^sity. PUiatifiFs have pre- 
ferred a farther appsil to this Ooart, and it has been stre- 
naously argaed on their behalf that the alleged custom is entirely, 
opposed to the general rale obtainiag among agriqaltaral 
tribes in the Punjab, and that the Btvaj-i'am and Tapper's 
Onstomary Law (Volume II, p%ge 178) do r»ot support the 
conclusions of the learned Oivisronal Judge. We do not, 
however, feel called upon to determine this- qat^stion as we are 
of opinion that the first Court was fally justified under the 
oiroumBtances of the case in as«iumiag that consideration and 
neoessity were sufficiently established. 

It is to be noted that at the date of the first sale (in 1897) 
the father of the plaintiffs was alive, and it is admitted that he 
did not die until about a year after the date of the second sale. 
He was the real brother of the vendor and had sons of his 
own, and it is difficalt to believe that he would have 
taken no steps to invalidate those alienations as against 
his and his son«' reversionary intereftts had he not realised 
that in effecting the alienations his brother was acting 
prudently and economically, and that the sales were for *' neces- 
sary purposes " In point of fact he seems to have acquiesced 
in the sales, and it is admitted that he took no action whatever, 
during his lifetime, to impugn their validity. It is only after 
his death aud after the de ith of the vendor that this suit is 
institated, some seven yearg after the date of the first sale. 
We can find no ground for suspecting collusion between plain- 
tiCTs father and the vendor. On the contrary, it wa# obvibosly 
in the interests of the former to challeuge the sales had he not 
been assured of their validity. His ab.Hraotion from taking 
proceedings is therefore perse a good ground for premiming that he 
was satisfied that his brother had *' neosssrty;" for alienating^ the 
property. Then, again, there is the fact that the two saler 
wete for small amonnts, the consideration in the one case 
being Rs. 160 /ind in the. other CU. 50. We fail to see any 
ground for saspeoting that these«<8m%UH sttant wire rtiiid* for 



liAB«l XWI. 1 OIVIL JUDQMBNT8-N0. 86. 167 



ooflofficient purpoies. Taking everything into oonsideratiou, 
and in view eapecially of the facts tbat plaintiffs* father ap- 
parently iccepted the pales as Talid, and that bo steps were 
taken to impeach their validity until seven years after the date 
of the first sale, we do not think that plaintiffs can expect from 
defendant any more definite and clear proof of necessity than 
haa been given in this case. 

We do not feel called npon to give any opinion, nnder these 
oironmatancee, as to the power of a sonless proprietor in this 
tribe and ^oAnZ to dispose of his ancestial property at his 
pleasure. The customary rule alleged by defendant is without 
doubt exceptional, but on the other hand it is well known 
that Afghan settlers, especially in those parts of the Punjab 
which were brought within the limits of this Province only 
after 1857 and then for administrative purposes, do not 
observe in their entirety the customary rules which are 
genei-allj in vogue among the agricultural triben of Punjab 
proper. The customs of the tribes in the Rohtak District as 
snmmarised in the volume of Tupper's "Customary Law" 
above referred to are not, we think, very clearly set forth, and 
the answers to questions do not appear to be altogether consistent 
(see paras. 24, 25, 27). Nor is it an easy task to con- 
stme the provisions of the vernacular i?ttra/-t-om prepared by 
Pandit Mnheraj Kinben, to far, at all events, as this question 
of the power of disposition popsepsed hy a sonless proprietor 
is concerned. But upon the whole it would certainly seem 
tbat in this district fuch a propi i etc r is» conceded rights which 
are considerably more extensive than the rights recognised 
by custom in other parts of this Province. As already observed 
we refrain from giving any definite opinion upon this point, 
and we merely allude to the subject for the purpose of pointing 
out that it may have been for this reason that plaintiff's 
father abstained from taking any action in respect of his 
brother's sales. For our own part we consider that it was 
mote probably because he felt that these sales werefor valid ueoes- 
sitt that be acquiesced in them ; but whatever may have been the 
reason for his inaction, we are of opinion that the first Court 
was iusnfied in holding that the sales were valid and binding 
upon plaintiffs. We accordingly dismiss the appeal with costs. 

Appeal diimu$$d. 



168 ^^^^ JUDGMB»TS-No. 86. ( 

No. 86. 

I^efre Mr, Justice Johnstone and 
Mr> Justice Muhammad Shah LHn. 

iNlHAL DEVI AND OTHERS,— (I)KiiNi)AKTf),-APPELLANTS, 
Versus 
SHIB DIAL,— (PLAiimfF),-RESPONDBNT. 
Civil Appeal No. 1238 of 1905. 

Hindu Law — Family deht'-BaU of ancestral dwlling houiss im 
of decr«s-^Wif€ or v}idow*$ right of residsnce. 

Held^ that the right of a Eicdu wife or widow to wrida in th« 
tral family dwelling bouse is as a general role Btiperseded by doMf 
inoorred by her husband in the ordioaiy way of bneiness and living. 

Further appeal from the decree of A. E. Martineau^ Bsqnirs^ 
Divivtonal Judge^ Lahote Division^ duted 8th May 1905. 

Beni Pershad, for appellants. 
Bodh Raj, for respondent. 

The judgment of the Court was delivered by 

QS /2 D 1906 Johnstone, J. — The 8ole qneetion for decision in this case 

has been thus stated by the learned Jodge who admitted 
the petition for revision- onder Section 70 (I) (6) of the 
Act. 

When a Hindu owner possesses one house (family house) 
only, are alienations made by him to be considered always 
subject to his wife's right of residence as wife or widow, or 
under what circumstances would this be or not be the 
case P 

He calls it the main question in the case. Inasmuoh as 
the first ground in the petition has been abandoned it ia now the 
sole question. 

Ghasita Mai was the owner of the house. So tmr as I have 
been able to ascertain it from the record, the hiatoiy of the 
hoase in suit has been as follows. [I may first note that the 
late Gbat-ita Mai's family are Kbatris and subject to 
Hindu Law, an it is understood in the Punjab.] 

Before 1895 Gha^ta Mai was already in debt to the tune 
of Bs. SOO, and for this sum a house (n'>t in suit) was already 
mortgaged. On 14th November lb96 he borrowed of plaintiff 
|U. 900 on a mortage ef that tame hoiite to pk^ off tkat 



Iftttor 1907. ] OIYIL JODGMBNTS— No. 86. 159 

6M>9 ihe rmi being taken for litigation and family expenses. 
On Mth Jaly 190(Xp1aint4ff, having sned Ghasita Mai, obtained 
m dtonm^ lor H& 1,3239 ^^^ oosta in the Coart of Additional 
Dtetriet Jndge. He proceeded to exeonte, and objections made 
to attachment and sale were disallowed under Section 281, 
Civil Pruoedare Code. The mortf^aged property was sold 
by anction for Rs, 1,125, of which Rs. 1,068-12 net, came fo 
plaintiff- There still remained Rr. 235 dae, and nod^^r two 
other decrees Bs. 195 was also due. In consideration of these 
two items (to which was added Ra. 20 registration, etc., 
expenses) Ohaaita Mai mortgaged' the house in suit for Rs. 450 
on 26th Jaly 1901. These decrees were all against Ghasita 
Mai. On 7th Angnst 1903 plaiotifE filed a sait apou the deed jast 
mffitioned, and on Slat Angnst 1903 obtained a decree for 
lUi 666*10 and costs chargeable on the house. Execation 
was sned o«t in Odoberr and soon after Ghasita Mai died on 
17th Febraary 1904 plaintiff asking snccessfnlly that his minor 
son (now defendant No. 3) be snbstitated for him. Meantime 
the widow (defendant No. 1) in December 1903 had filed 
objections toexecation against the hoase, bat these were dismiss- 
ed for default on 18th March 1904>. Again, on Ist Jane 1904, 
the widow filed objections under Section 332, Civil Procedure 
Code, and on 11th August the executing Court ruled that 
her rights of residence must be reserved in the auction sale 
of the boose. On 30th August 1904 plaintiff brought this 
pBMient daim for a declaration that the house was liable to 
sttaohment and sale in execution of his decree without 
any reservation of the lady's right of residence and he made 
the lady and hm minor son and daughter defendants. 

We have been referred to a number of rulings and also 
one or two text-books. Mayne's ideas regarding widow's 
right of residence in the ancestral houpe are ^iven at para. 
465 of the 7th Edition of his book on Hindu Law and Usage, 
the preceding paras, being taken np with a diseucsion of her 
right to maintenance from her husband's esfat^e. In B.inei-ji ' 
on Hindu Law of Marriage and Stridban (1879), pHgen 
150, €t $eq , the same qn&Mtions are discuftsed at length, and at 
page 204 a distinction is drawn between a widow's claim upon 
the ancestral residence when it is in the hands of a member of 
the family, or in the hands of an oat8]der to whom it hns 
been^ alienated in order to defeat her just claims, and htr 
claim upon it when it has' been alienated to an outsider in the 
ordinary way for payment of family debts. 



160 OiriL JDDGMBNT8— No. 86. 1t«CPW 



On bebalf of the widow appellant Mr* Beni Pershad hUB 
quoted the following rnlings : Bhikan Bag v. Pura (>), Talemand 
Singh V. Buhmtna ('), Venlatammal v. Andyappa Ohetti (•), 
Fakir Chand v. JfriMamtna^ Ohiranii (*), Jawdhir Singh v. 
Mustammat Bam Devi (*). 

On the other side we have had onr attention drawn to CiTil 
Appeal No. 945 ot 1900 (Chief Court), Ja'nna v. Machnl 8ahu (•), 
Soorjd Kaer v. Nath BaJehsh f^ingh ('), Natchiarammal v. 
Oopala Krishna (^)t Bamamaden y, Bangammai {^), Manilcfl v. 
Baitara (^®), Mussammat Karam Kaur y. Mussammat Kishsn 
Devi (^ '), Shrt Behirilaiji v. Bat Bajhai (**), tftt#9amma/ (7om/» 
V. OA««an £.aZ(i»). 

These are relied upon chiefly to establish the distinction 
that, when the ance^u^Hl hon^^e has been alienated for /amf/y 
debts, the widow's ligiit of icHideuco is not recognised* 

Ij} Bhilchan Das v. Pura (*), the qaention was whether 
in view of the widow's claim to reside in the ancestral hoase, 
a mortgage of it by the lato male owner could be enforced 
bj its attachment and sale. This was decided in the affirmative ; 
bat the further quention whether the auction parohasMP 
could eject the widow was not decided. This case heipe neither 
party here. 

Id Talemand Singh v. liukmina (^), the facts are somewhat 
uomplicated and the judgment very brief. The finding is that 
the widow of a « member of a joint Hindu family can daim 
a right of residence in the family dwelling house and can 
assert such right against the purchaser of such house at a 
sale in execution of a decree against another member of such 
family. The house was owned jointly by the widow's late 
husband and a cousin of his. The debt was the latter's 
debt and the decree was against him alone. The widow had 
resided in the house after her husband's death and before 
* the decree afoi-esaid was passed or ekecuted. This ruling, 
then docs not seem to me to cobflict With the theory, relied 



(•^ / L. «., V All , Ul (M 1, L R., Jf Cnl, 102. 

(») /. /.. n„ lit All., H53. (•) / L. W., // Mad . I2<i. 

(») l.L.R, Vt Had., 133. («> / L R. X!l Mad. 26t\ F. B. 

(•) 84 P. U., 1883. (»0) / I ii , XVI! Bom., 8tf8. 

(• ) lia P.«., 1888. (» ») 89 P. « . 1896. 

(•> /. L. Jt, // Ail, 816. (>•)/. L. B.. XZin Bom., 84$. 
(It) 190 P. «., 1889. 



1907. ] OITIL JUDGMINTS-Na 16. \^l 



on bj the respondents in the presenfi case, of the non-reoogni* 
tion of the widow's rights when the alioDation was for family 
debts. 

In Fakir Chamt v. Mu$8amm(U Ohimnjt (0, we 6nd the same 
thing. The alienation was foncd to have been effected for 
porposes not binding on the family ; and a similar finding in 
Jowahir Stngh y. MuaamrruU Bam Devi (^), renders that ruling 
also Qseless to appellants. There the debt was an extravagant 
one for the purpose of the marriage of one of the two sons 
of the deceased huRband of the lady claiming residence, and 
it was incurred by the two sons and not by the deceased. 

In VenhcUammal Andyappa Ohetti ('), it was held that 
in the circumf^aitces of that case the widow's right of residence 
mnst be recognised and that the hoapp, abont to he sold for 
a mortgage-debt, mast be pold ^abjectt to that ri^rlit. Here 
again we mn«t take the did'im as applying to th« facts of 
the oase it^lf and to similar states of facts only. The debts 
were incurred by the lady's son after her hnsband's death 
in certain large transactions, not for the joint benefit of 
the son and the lady. 

Turning to the cases quoted by Mr. Sawhney for respon- 
dent, I note that Civil Appeal No. 9^5 of 19C0 (Anderson and 
Robertson, Judges), lays it down that a widow ''should not 
"be turned out of the family house unless the debts on 
''account of which alienation is being made have been 
** shewn to the satisfaction of the Oourt to be bond fide family 
** debts ; ** and on the facts the finding was that the consider- 
ation for the alienation was unjustifiable, if not immoral. 
With the dictum in this ruling I fully agree. It seems to me 
to provide a simple, intelligible and just rule ; and it applies 
in the present case, for I have no doubt at all that the 
debt here was a family debt, incurred by Ghacita Mai 
himself in the ordinary way of soch things, for no immoral 
purpose and with no similar design to in jut e the widow or 
the children. The Muh-^ramadan wife or widow is ACfedtor 
of her hasband on ncconnt of her dower, which is a debt : 
and she is perhaps, as rej?ard8 his estate, a creditor preferred 
to all other ci'editors. Bat a H lU vvif» opwli»w is no 
creditor on aoount of her raiiate lanco or ri^ht of residence. 
If the estate has dwtudlud to nothing as a oonsoqaence of 
family expenditure and family debts incurred by her 

(»)t*P.JI«l88S- ^•)U2P.£.,li8t. 



]]0g OITIL JCIHBCKfftrS-No. 8T. [ 

hnabaodin the ordinary way of basiiiess aad Hviii|^, I 

Me that any thing remains for her any more than for her 

husband or her husband's heirs. 

These being my views I need hardly disouss a4k leogth 
any more of Mr. Sawbney's precedents. I will, however, 
merely state that in Jamna v. Machul 8ahu (^ ), the husband 
had made a gift of his whole estate to his nephew, and of 
course the widow's rights were held not destroyed ; that in 
NQtchi'tramal v. Qopala Krishna (') a sale' for a family debt was 
held sufficient to protect property sold in satisfaction of that 
debt from widow's claim to maintenance, that Bamanudan ▼• 
Bangammal (*), distinguishing Venkatammal ▼. Audyt^ppa (^), 
lays it down that where, the debt was a just family debt, the 
widow's right of residence in the house sold for that debt is 
not recognised; that in Manilal v. Btutara (*), tha test in 
such casQS was stated to be whether the mortgage was for the 
benefit of the family or was in any way in fraud of the widow's 
rights ; that in Mussammat Karam Kaur v. Mussammat Kishen 
Devi (*), the debt was a just family debt and apparently 
another house was available for the widow, who therefore was 
hold not entitled to claim residenoe in the ancestral house even 
from a purchaser with notice of her claim. The other oases 
I need not mention at all. 

My view, then is that this appeal must fail. I woujd 

dismiss it with oosts. 

Appeal dismissed. 

No.37* 
Before Mr. Justice Boberistm and 
Mr. Justice Lai Ohand. 

DEVI DIAL AND OTHERS,— (PLAiirrifFs),—APPBLLANTS, 

Versui 

UTAMDEVI AND ANOTHER,-(Defbw)A«s),— 
RESPONDENTS. 

Civil Appeal No. 160 of 1905. 
Rm JodioAta—^'f-nitton ly widow^Suit by r«r#mcn«r to hav§ 9ueh 
ali§naHon declfired null and void^Oompromise ofsuch$uitbettc€€n th€ vndow 
in potHesihn aii f/i? rsv^raioner '^Subieq^ien' sui' hu ''f tun of 9ueh 
fSVSrtUmer^Eitopp el . 

Where a person entitled to object to an alienatioTi made by a widoir 
bionght » suit to have such alienation declared nnll and void and ultimatelf 

(') /. L.R.,HUll.,S\S. (*) t.L.B^ Fllfad.isa 

(•) / r.'«i.7Hf.irf.. 138. i')i.ikB.\3miMom^m: 



Aamun Stra. 



tatend 'into rn'OompromiMlo good faith with the widbw. Md that h% 
•lld'hit raoevtson in title were boand by it and thwt a eimilar suit by tdM 
ton of raeh revertioBer was barred by tbe role of res judicata^ 

Fir 9t appeal from the decree of LalaEidar Aaih, District 
Judge^ Jhang, dated lOtk November 1904. 

Snkh Dial, for appellants. 

Isbwar Das, for respondents. 

The judgment of the Oonrt was deliTered bj 

B(»BBTSOH, J.— 'The facts of this case are as follows :— 7ik Iker. 1906* 
The plaintiffs sne for a declaration that the transfer of 
certain lands, honses and date groves hj Mnspamnat IJttam 
Devi, defendant No. 1, in favoar of Bhoja Ramj defendant No 2, 
who is her and her hasband's daughter's son shall not affeot 
their reversionary rights after the death of Mnssammat Uttam 
D«vL 

The defendants pleas are that on 7th Jnne 1873 tho 
pkiniiSs or their predecessors in title brought a snit for a 
dedaration of a similar natore, that this snit was settled bj a 
oompromise nnder which the then plaintiffs got immediate 
possession of certain property which they have enjoyed for 
more than thirty years and to which otherwise they wonld 
have had no claim nntil the death of Mnssammat Uttam Devi, 
axid gave np all claim in present or in f otare as regards the 
balance of the propertj. The defendants plead in virtue of these 
facts that the plaintiff's snit is barred as res judicata. 

Tbe parties who brought the suit in 1873 were in fact 
Bam Jas, father of plaintiffs Nos. 1, 2, 3, and the plaintiffs Nos. 
4 and 5 themselves, by Bam Jas, their next friend. Bam Jas 
being their fnll nncle. 

When plaintiffs Nos. 4 and 5 came of age they ne^er 
attempted to repudiate the compromise or to restore to the 
sMm ^uo ante, on the contrary they proceeded to deal with tbe 
property acquired in virtue of the compromise only as thetr 
own and to alienate it, and they are, it is urged, clearly estopped 
frdm trying to set the compromise aside now. 

The plaint of the 1873 case has been destroyed, but it is 
clear that, the parties being Brahmans, there was a conflict 
of interest between the plaintiffs and Bhoja Bam, the daughter's 
son of the deceased Bam Narain whose property was in 
dispute, and of Uttam Devi, his widow. The plaintiffs brongtal 
a tfiiti they and tbe widow, at that time rspi esittt s d Urn 



194 OITZL JUBGHBNTS-Ko. 87. [ BiOd»» 

whole estate, antl tbey iu good faith entered ioto a oompromiae 
which may have been exceed ioglj bene6oial to them. Upon 
no principle of equity could they be allowed to back ont 
of it without disgrrging the proceeds of the propeify 
which they have ecjojed for over thirty years. If they seek 
justice they must do it, and first make restitution, which 
they do not in any way propose to do. 

The learued pleader for the appelhints addressed na at 
Tery great leugth, but his two principal argumenta appeared 
to be, first that all the recorded deoisions whioh are dead 
against the highly inequitable doctrine set forward, deal 
with compromises, regarding specific acts of alienation, and 
secondly, that the reversioners in 1873 were not competent 
to "improve" the widow's estate, and to make it, as regards 
some part of the estate into an absolute one instead of the ordi« 
nary widow's estate for life. Neither of these propositions 
appears to us to carry any weight. The same principles 
apply whether the alienation is one of a part or of the whole 
estate, and here it is clear that in 1873 the whole estate was 
oonoemed and that some cause of action had actually arisen. 
The plaintifEa themselves insisted that the order of the oonrt 
shoutd be under Section 98 of the Act then in force, Act 
YIII of 1859, and the judgment recites the terms of the 
settlement. It is clear, therefore, that the decision is evidence 
of the compromise and did not require registration. The 
point that the documeut required registration indeed was 
not strongly pressed in the appeal. 

In 1873 the whole of the reversioners then having any 
apparent rights sued and entered into a compromise in bond 
fiiles. Tbey and their successors in title are clearly bound 
by their action ; such action can only be attacked by a more 
remote or subsequent reversioner on the gronnd of mala fides. 
The principle that in respect of ancestral land, successio n 
is a right derived from'the common ancestor who first acquired 
the land, is not one which interferes with the ordinary appli- 
cation of the principles of res judicata^ limitation and the 
like. If it were so held the result would be monstrously 
inequitable, and there would never be any finality in regard 
to BDch cases as that now before us. 

In Labh Singh v. Gopt and others (*), the learned Judges 
say : " The person in cd joyment of property, or entitled to 

"~~^ (> UP.B.,190a. " 



Makch 1907. ] 



OIViL^JUBGMBSTS— iJa 38. 



i65 



"the right to object to the alienation, must be allowed a 
'* certain latitude of jadfcment as to the mode ia which the 
'* property or the right should be protected when invaded or put 
'*in jeopardy by others, and in our opinion his successors and 
** descendants must be held to be bound by the action so taken 
** by him." It would be intolerable and would put an end to all 
^* finality in proceeding's in a court of justice if it were 
otherwise. In Buia v. Khuda Bdkhsh and others (*), the learned 
Judges say :— 

"It appeari to Us) that the right of the present plaintiff 
'^ to sue depenJs entirely upon the question whether his father's 

'^ action was taken bond fide for the protection of the estate '* 

and finding that the fathered action had been bond fides they 
held the son to be bound by a compromise which his father 
had entered into . 

With these views we entirely concur, holding them to be 
the only possible principles upon which justice can be adminis- 
tered in fairness and equity. As regards the second point 
we may simply add that it is quite immaterial whether the 
compromise did or did not have the effect ot improving the 
widow's estate as regards the property left to her. The 
plaintiffs are bound by the compromise whatever its effect 
in that respect. The compromise is a complete answer to 
the claim. 

The present claim appears to us to be particularly inequit- 
able, not to say impudent. The appeal fails and is dismissed 
with costs. 

Appeal dtsmUsed. 



No-38* 

Before Sir William Clark, Kt., Chief Judge, 

ISHAft,— (DWBNDANT),— APPBLUANT, 

Versus 

PAttTAP SINGH,-(PLAiNTiJfF),— RESPONDENT. 

Civil Appeal No. 1247 of L905. 

Suit by a reversioner for pomession of immovahU property ^D^fsndant 
in possession under an alleged adopfion^LimHation Act, 1877| Article 118 — 
Starting point of limitation. 

Held, that Article 1 18 applies to every soit filed for whatever purpose 
where the validity or invalidity of an adoption oomes into question, and 



'Appbllatk Sidk. 



(») 97 P. R., i»oe. 



^g^ ^'^ JUBGHENTB— Ko. 8^. [ HlCoEb 

ike time b«»(rio8 to ran from the date the alleged adoption beoame known 
to the plaintiff. 

Further appeal, front the decree of J. 0, If . Benwe^ Esquire^ 
Divisional Judge, JuUundur Division, dated S9th August 19^5. 

Oolak Nath, for appellant. 

Mahammad Shufi, for respondent. 

The judgment of the learned Chief Jndge was as followa :— * 

lUk Deer. 1906. Clark, C. J.— The facts of this oase are that on 17th 

Decemher 1889 Bhap Singh executed and registered a deed by 
which he made Ishar Singh, defendant, his daughter's eon, his 
heir. 

Bhap Singh died on 25th Daoember 1890 and mntation 
of names was m%de in (ay.>ar of his widow, Massammat Eirpo ; 
she died on 6th Jnly 1893, and on her death mntation of names 
wa^ m^e in favour of defendant in August 1893. 

On 17th August 1904 plaintiff as reversioner of Bhnp 
Singh brought this suit for possession of Bhnp Singh's 
land. 

The firat question for decision is whether the deed of 17th 
December 1889 was an adoption or a will. The document 
describes itself as a will and was registered as a will. Its terms 
are that Bhnp Singh had no son but a danghter's son, age«12, 
whom he had brought up as a son and who had been living 
with him for a long period, and whose marriage he had made, 
and who had cared for him in the past, and was likely to oare for 
him in the future, which no reversioner was likely to do ; he 
therefore wills his land to him after his death. 

This is, no matter how described, with which Bhup Singh 
probably had nothing to do, simply the ordinary deed of 
appointment of an heir, and there was prior and subsequent 
treatment as heir. 

The deed in Bhupa v. Nagahia ( ^ ), also described 
itself as a will, whereas it in reality was an appointment of 
an heir. 

In the mutation pro(3dodiag<i on tha death of Mussammat 
Kirpo it was as adopted son so described, that mutation Was 
made in favour of Ishar Singh. I am therefore of opinion 
that the deed should be treated as a deed of appointment 
of heir or cnstomary adoption. 



(») 88 p. R^ 1808. 



MitCH 1907. ] CIVIL JUDGMElfTfl-^No. 3«. J^ 

It 18 argaed ihat «s it wan regiB^erpd ab a will a copy 
oonld not be obfaioed till Bbnp Singh*R death bat as Bhnp 
Singh died in 1890, thin is not of niocb conseqnencp, and 
it IB cTenr ihut m 1893, when n^ntation was made Iphar Singh's 
claim afi adopted son was well known. 

It also apppoTB ^^at in Jnne 1891 ihe prcFeiit plaintiff 
by hip mother Ftcd rre ^'ai' Pirph to ret afide an alitnatirn 
made in hia favmr 1} Bhrp Firph, aid He fret of fidrpfiVn 
was pleaded by Vm 8irgh ts hfii'ig j'aiilifl's right to 
fne. The Cndirg was <hi»t He fldfjtirn waa net Talid, 
bntthat firdiig is of no fcice agfir^t Ifhar Sinfjh, who was 
no paity fo the foit, aid it Fhcwaclcaily flat plaintiff nnat 
have hnown of the adoption as far back as 1891. 

Plaintiff appears to have attained majority ia IBQS, he 
entered the aimy in 1901, and no good reason is pot 
forward for his not having aned before. 

The qaestioQ then ariRe<« whether plaintiffs' suit ia barred 
by limitation nnder Article 118, Schedole II of the Limitation 
Act. 

There are nnmerous decisions of this Coart holding that 
•iich eoit is, barred by limitation. 

They are all qnoted in Bhhpa v. ^ogohia (>). 

The matter was also diacnased at aome length in 
IheruT. >%dhu (■). Two of the Jrdpes (Chatttiji ai d 
Andeiaon, JJ.) were of opinion that FBch snite for poFfeaaicn 
were barred by limitation when the anit had not been brocght 
within the period pi escribed in Article 118. 

The qneation with reference to adoption did not ac<nal1y 
ariae in the case. I ezprcFbed no opinion on the ^obataniive 
ne tion«. I only ezprefscd an (pinion that the lemaiks 
of the Piivj Ccntcilin ]Utlkfrjuf*s ctM (•'*), timid id he ijlcn 
to lay down any new principle rr do anything more than 
reaffirm what was laid d(wn in Jt ^adavla Chacdhrmn v. 
Dakhina Mohun Roy Choadhri (*). 

On the aubstantive question I see no sufficient reafH>n for 
departing from tho coarse of decisions of this Ccnrt and 
I hold that plaintiff not having sned within the period pres- 
cribed by Article 118, his anit is bnn^d by limitation. It 
remains to deal wit d one argument naed on behalf of plaintiff. 

(») 68 P. R.. 1908. (») /. L. /?., IXV Bern,, 887, P. C. 

(•) ee P. ft., 1908. r. b. (•) /. l. p., lui Cau., 80e, p. a 



168 



CIVIL JODGMBNTg— No. 89 [ Ebcoed 



It was argoed that as Massammat Kirpo died in 1893, no sait 
would lie after that date for a declaration that the adoption was 
invalid; that only a snit for possession woold lie, and that 
therefore Article 118 oonld not apply : the fact that plaintif! 
was a minor at the time preventing the limitation from begin- 
ning to mn between the execution of the deed and 1893. 

It is not possible to say that snit for declaration of 
invalidity of adoption would not lie, though possession of 
the land would be a consequence of success, yet it would 
not be the only conseQuence, and such suit might be brought 
for other reasons than possession of the land, ex gr,^ for the 
honour of the family, or to prevent collateral succession. 

Besides the Privy Council ruling in Jagadamba's case 
was that a suit for possession where there was an effective 
adoption in dispute was a suit to set aside an adoption and 
attracted the consequence that the time for suing ran from the 
date of adoption. I therefore overrule this argument. 

I accept the appeal and holding the claim barred by 
limitation, I dismiss the suit with costs throughout. 

Appeal diimtaed. 

No* 39* 

Bsfore Mr. Justice John atone and Mr. Justice Shah Din. 

PURAN SINGH AND ANOTHER,— (Pladitito),— 
APPELLANTS, 

iiprtLLATc SiDi. I Versus 

KESAR 8INQH k^l^ 0THER8,~(Diraii)iim),— 
RESPONDENTS. 

Civil Appeal No. 770 of 190Si 

iiortgoge^Mortgagefor afiwid peHod—Bipreiefitative of the morigagt't 
not allowed to redeem hefore the esfpiry of the term-^Lovg term alove dots not 
amount to clogging the equity of redemption. 

Held, that a period fixed for redemption by the parties in a mortgage 
bond oanDOt be regarded as one fixed without legal oeceveity and as unch 
inequitable aod aneaforceable on the mere ground of its beiDg nnneually 
long, and the representative of the mortgagor cannot be allowed to redeem 
before tlie term fixed on that behalf eipeoially where it in shown to have 
been fixed by the mortgagor in good faith and with due regard to bit beat 
intaraata. 



Mabch 190T. ] CIVIL JUOGIIIINTS— No. 89. 1Q9 



Further appeal from the decree of Kazi Muhammad Aslam^ IHvUumal 
Judge, FerozeporeJHvieion, dated 2Aith March 1905. 

Oonldsbory, for appellants. 

Sakh Dial, for reopoDdeDts. 

The JDdgment of the Court was deliTered by 

Shah Dik, J.— The facts of th?8 case sre brieBy as 2&t<l Deer. 1906. 
follows :— 

By a rfgieterrd dred, dated 9th Sfptrmber 1908, Earam 

Singh, father of tie plaintiffs, mortgaged 141 hanaU i mafia of 

his ancestral land to the defendnnts for Rs. 1,467 for a period 

of twenty years. Prior to this mortgage Earam Singh had 

mortgaged 174 kanals 3 marlas of land to Bhagwan Singh 

and others for Rs. 1,287, and 14 hanala 18 marlas of land to 

Ishwar Singh, defendant No. 2, for Rs. 120, the total area of 

the land covered by these two mortgages being 189 kanals 

1 marla. It was out of this area that Earam Singh in 1903 

mortgaged to the present defendants 141 hanal$ 1 marla for 

twenty years, the latter agreeing as one of the stipulations qf 

the contract of mortgage to redeem both the previons mortgages 

referred to aboTC. By this arrangement Earam Singh intended 

to get back 48 kanals of his land free from enonmbranoe, 

which, added to the 1*5 hanals which he already was 

possessed of out of hh arreptral holdirg of 208 kanals, 

wonld have amounted to a^nitaWe area cf &giicnltnral lund ont 

of which he conld have hoped to make a living. The present 

mortgagees were, it appears, obliged to institute a suit against 

Bhagwan Singh and others, prior moitga gees, for redemption of 

174 kanals 3 marlos of land, and succeeded in getting a decree 

for redemption of the entiie aica on paymfnt of Bs. 1,819. 

Meanwhile, Earam Sirgh, the original mortgagor, appears to 

have died ; and his minor sons have brought the present suit for 

pospession of the lard moitgagrd by their father to the 

defendants, alleging that the moitgage in dispute was effected 

without consideration and legal necessity and praying that 

possession be decreed to them without payment of any sum or, 

in the alterubtive, on pajment of soch sum as the Court may 

deem proper to fix. It is noteworthy tKt Bhagwan Singh, 

one of the prior mortgagees, against whom the defendants 

got a decree for rfdempfcion not long before the institution of 

the present suit, appeared in the fiist Court as the special agent 

of Mussammat Bami, neit friend of the minor plaintiffs. 



JTOl CIVIL JUDOMBMT9— No. 89. [ PicoltB 

The Brst Conrt fonnd that the mort^iofe was effected for 
legal nececwily so far as the amoant of the mortgR^ morey 
was concerned, but it held that the period of twenty years 
6 zed for redemption of the mortgage was improper an 
inequitable and should not be inf creed agamf^t the frerert 
plaintiffs. The plaiitifiB* claim for present fospessicn was, 
therefore, decreed on payment of Rs. 1,499-8-0. The plaintiffs 
accepted this decree, but the defer dsnts mortgagees 
appealed to the Icwtr Appellate Court, ^hich upon a full 
consideration of the facts as set out above, has held 
thai the teim of twenty jraiF embodied in the moitgage deed 
is not, under all the cirr un stances of the case, inr qaitable, and 
that the plaintiffa are bouud by the mortgage as it stands. 

The plaintiffs have appealed to this Oourt. Before I dispose 
of the appeal oa the merits, I must consider the question of 
the amount of Court fee leviable on the memorandum of appeal, 
which has been raised by Mr. Goaldsbury on behalf of the 
appellants. It seems to me that the'soit as laid was clearly one 
for possession of land, pure and simple and not one for 
redemption of mortgage on payment of a certain sum due as 
mortgage money. In my opinion the nature of the suit as 
originally bioughi is in no way affected by the fact that the first 
Court decreed possession of the land on pay ment of a certain 
amount, and that so far as that amount is concerned the dfcree 
was accepted as correct by the plaintiff. The value c f the suit 
for purpcsis of Cr uit fee wi f lleitfcie roiicctly stated as being 
Rp. 55-2-6, and the rmonntuf the fee leviable on the memorandnm 
of appeal is Rs. 4-8-0. So far I accept Mr. Oonldsbory's argu- 
ment as sound, but I cannot find any provision of the Coort Fees 
Act (VII of 1870) under which this Court is empowered to 
direct the refond of the additional Court fee paid by the 
appellants on demand by the taxing officer of this Court. 

On the merits, after giving foil weight to the arguments 
of the learned counsel for the appellants I am unable to hold 
that the term of twenty years in question was not fixed by 
Earam Singh in perfect good faith with due regard to his best 
interests or to that of his heirs, or that it is of such an ineqnit- 
able character that it shonld not be enforced in this case. There 
is absolutely no evidence on the record to show, nor was there 
the remotest suggestion made in the course of the argument in 
this Court, that Kari^m Sin^h was in any way inimically 
disposed towards his sorp, the present plaintiffs, or that he 



HiaCB 190t. ] OlVlb JUOaHBHlS^-Na 88. 171' 



ioten^ed to clog the eqaity of redeoiption with a view U> deprive 
th*)!!! of th»)ir me^na of livelihood so far as those depended vpon 
the income of the land in suit. There is also coBsiderable foroa 
io the sn^fi^estioQ that it is at the -instigation of Bbagwan Sivgii 
against whom the defendants obtained a decree feu: redemption, 
that the suit has been broaght in the name of the minor sons of 
the mortgagor. It is also worthy of remark that, whereas the 
plaintiffd came into Conrt alleging that the mortgage was wholly 
without consideration and devoid of legal neceswlj, - they 
aobepted as correct the decree of the first Court which made 
them responsible for payment of the entire mortgage debt. 
Moreover it is d^r, as the lower Appellate Goort has observed, 
that so far from the mortgage in question having been offdcted, 
as an act of wanton waste, the pUiatiS-i* father wa^ a gainer by 
the transaction, which re'iulted in 43 JkaitoZtf of land being left to 
him and his heirs unencumbered. The evidence on the record 
is in my opinion insufficient to sh3w, as has been xM>ntended for the 
appellants, that the market value of the land in suit is more than 
Be. 200 per ghumaon, or that it could have been mortgaged for 
Bs. 1,500 without a definite period being fixed before the expiry 
of which redemption could not take place. The evid^oe of the 
paiwari is wholly incooclosive on this point for the simple reason 
that the instances of mortgage and sale to which he refers ai-e of 
no value without there being detailed particulars thereof which 
are admittedly wanting in this ease. 

The rulings relied upon by Mr. Gouldsbury do not in my 
opinion help him. In Sher Muhammad v. Fatteh Din (^;, the 
facta were peculiar and it was io view of those facts that this Court 
held that the term of fifty years as embodied in the mortgage 
deed in that case was inequitable, and could not therefore be 
enforced. Moreover, there the market value of the land was 
found to be about Rs. 6,000 and the mortgage money was only 
Es. 1,300. In tbe decided cases cited with appioval and 
loWosved in 8her Muhammad y. Fatteh Din ('), &ukh Dial v. 
AnarU Bam (*), Sayad Ahdnl Hak v. Qula'ti Jtlani (^), Kanarati 
V. Kuttooly (*), the facts were wholly dissimilar to those of this 
oase, and tbe oonditioos in restraint of the right of redemption 
which formed the subject of dispute in those caaas were dbviously 
of such an onerous and inequitable character that hardly any 
court in this country could have enforced them. Tka decisions 



(«) « P. B., 1902. (•) /. I. B. X2C Bam,, 677 . 

(•) IfL P. U., 1894. (•) /. L, B., IJCI Madr^ U , 



172 ^^^ JUDGMBNTS-Ma 40. [ Eboor^ 

really in point are those cited by the learned pleader for the 
reepondeDtf), viz., Milkhi and others v. Fattu and others (») (Civil 
Appeal No. 11 of 1899 nnpoblished), and Civil Appeal 
No. 846 of 1904 nnpoblished («), and following these 
decisioiig, I hold that the term of twenty years agreed upon 
between the plaintiffs' father and the defendants in this case was 
neither intiqnitable nor one fixed without legal necessity, and 
oannot be set aside as nnenforceable between the parties. 

1 would, therefore, confirm the decree of the lower Appellate 
Court and dismiss this appeal with costs. 

Afpeal dismisied. 



No. 40. 

Before Mr. Justice Robertson and Mr, Justice Lai Ghand, 

SHAH NAWAZ AND OTHERS,- (Depindahts),— 
APPELLANTS, 

APF.LLAT. 81D1.J y^^^ 

AZMAT A LI, -(Plaintipp),— RBSPONDKNT. 

Civil Appeal No. 493 of 1905. 

^ Custom^ Alienation— Sale hy sonless jwoprtetor— Locus standi of rever- 

aiomr-^OHani Sayads of Maaza Masania, tahsil Batata, Qurdaspar District 
—huhammadan Law^Beligious purposeSy iustification for. 

Held, that in matters of alieoation and saooessioQ Gilani Sayads 
of mauMa Masania, fo/ist/ Batala, Gordaapar District, who have for nine 
genaratioDS past followed agricaltare as a land-holding oocapation, were 
goreroed by the general rules of agricultural customs of the Provinoe 
and not by the Muhanunadan Law, and that the alienation of ancestral 
land by such a proprietor was consequently subject to restriction, but 
he was justified in raising money iu order to perform the aqiqa ceremony 
of bis deceased son and in alienating a small portion of his ancestral land 
for that purpose. 

Further appeal from the decree of A. E. Hurry, Esquire, Divisional 
Judge, Aw/ritsar Division, dated \st February 1905. 
Mohammad Shafi, for appellants. 
Peatonji Dadabhoy, for reepondent. 
The jadgment of the Court was deliverod by 

\Wh DeCT' 1906« LiL Go and, J. — The parties to this sait are Gilani Sajada 

of matuu Maoania io tahsil Batala, district Gardaapar. 
On 28th Febmary 1895 Madad AH, defendant, sold \12 kanals 

(*) P. L, n., 40. 1903. (•) P. W. Beporter, p. 152. 



1907.] OIYIL JUDGUINTS— No. 40. 178 

and 12 wuurlaa of land to Mnbammad Hassain, defendant 
2, for Kb. 1,500 as entered in the sale deed. Defendants 8 
and 4 sned for pre-emption and obtained a decree for possession 
on payment of Rs. 1,200 which was held to be the prioo 
fixed and paid for the sale. The present suit was instituted 
in Maj 1902 by Azmat Ali, plaintiff, brother of Madad Ali, 
Tender, for a declaration that the sale was not effected for 
consideration and necessity, and shall not affect his rever- 
sionary interest. The Divisional Judge has held that there 
was 110 neccBsity for an out ^nd out sale, but that the 
sum of Rs, 1,200 was bond fide and that there is feason to 
infer from plaintiff's silence that it was a valid and genuine 
transaction. He has accordingly decreed the suit subject 
to payment of Rs. 1,200. Both parties have appealed. It is 
contended for defendant appellants that Madad Ali, vendor, 
had an unrestricted power to alienate and that in any case 
the whole sum of Rs. 1,200 being found to have been 
borrowed for necessity, the sale ought to have been upheld 
as an absolute and permanent alienation. For the plaintiff 
it is contended that no valid necessity for the whole amount 
of Rs. 1,200 is made out, and a decree should have been 
passed subject to payment of Rs. 5<)0 only as due on prior 
encumbrances. After hearing arguments and referring to 
the record, we have very little difficulty in holding that 
Madad Ali had only a restricted power of alienation, and that 
plaintiff, his brother, is competent to question the validity of 
the sale in suit. It is admitted that the whole village of 
Masania is owned by the Sayads as a village community. 
It was founded by a common ancestor, nine generations back, 
and it is proved on the record that these Sayads cultivate 
their own lands personally and of others ss tenants. They 
occasionally receive gifts from religious disciples, but the 
income so earned is not shown to form their principal source 
of livelihood. Their chief occupation evidently is agriculture, 
and they have been classed as agriculturists in the district 
under the Land Alienation Act The facts, therefore, are in the 
main similar to Uttam Singh v. Jhnnda Stngh (^), a case of Bedis 
of Hoshiarpur, and the mere fact that the parties are Sayads 
by caste, is altogether inconclusive, as in several cases in different 
parts of the Province Sayads have been found to follow 
agriculture as their calling and the customs of agricultural 
tribes as the dominant rule of their personal law. Moreover, 
it is proved on the present record that in several matters 



174 OIYIL JUDOMBNT8-N0. 40. [ 



relating to snooeflsion and alienation tbe«e Sajads have adopted 
figricnltnral oaetomB^ and a separate Bitoaj'i-am iDcorporating 
their nsages was prepared and attested at settbment in 1868. 
There is, therefore, ample reason for holding that the parties are 
agricoltnrists and that the initial presumption against an 
nnreetricted power of alienation is applioable to them. It 
was, however, contended for defendants that snoh presumption, 
if any, was rebutted in the present case by a n amber of 
alienations effected in the Tillage which was never challenged. 
These alienations, altogether seventeen in number, were proved 
by filing certain extracts from the mutation register, but as 
pointed out by the first Court no attempt was made to indi- 
cate the circumstances under which these alienations were effected. 
It is quite conceivable that some may have been effected 
for oeoessity and certain others with consent or in favour 
of the next reversioners. Sach instances in no way rebut the 
initial presumption against an unlimited power of lilienation. 
It is not sufficient to rebut such presumption that a number 
of alienations were effected by members of the tribe to which 
the parties belong, unless it is further* proved that the alienations 
effected were such as are unauthorised by the customary 
law. We, therefore, hold that the defendants have not 
sacceeded in rebutting the initial presamption that Madad 
AH had only a restrictetJ power of alienation. Plaintiff, therefore, 
is competent to question the validity of the sale in dispute 
and the further question for consideration is whether the 
sale was effected for necessity. There was not such delay 
in instituting the suit as would support an inference of 
acquiescence. It is further unnecessary to decide in this 
case whether the Divisional Judge was justi^ed in cancelling 
the sale and in passing only a conditional decree having found 
necessity for the entire amount for we are inclined to 
hold on plaintiff's appeal that the whole amount of Rs. 1,200 
was not paid or borrowed for necessity. Only two items 
are in dispute, viz,, Rs. 200 alleged to have been spent by 
Madad Ali on the aqiqa ceremony of his son and marriage 
of his first cousin, and Rs. 600 which is staU d to have been 
invested some four months after sale in a mortgage which was 
admittedly redeemed three yeai-s later. As regards the last 
item we fail to see any necessity. There obviously existed no 
necessity for such investment when the sale in dispute was 
effected, especially as Madad Ali then held and owned other 
lands which he bad purchased from his brother in 1892 for 
Be. 700. Tke investment could not be treated even as an act 



fikMCa 1907. ] Ol^IL JQDaMBNTS-No. 41. lf\^ 



of proper mftoageinent in this case as only a temporary mortgage) 
was taken foar al^ntlI9 later which after redemption left the 
money agfain in Madad A.li'8 hands as altogother nninrested. 
We caQQot, therefore, hold that there was any neoessity for 
EU. 500. As regards Rs. 200 stated to have been spent by 
the vendor on the ttqiqa oeremony of his son and the 
marriage of his first oonsin we see no good reason to disallow 
the amount either as anproved or as nnoecessary. The 
expeuditnre inoorred for a religious ceremony is a neoessity 
and there is no allegation here that the amoant so spent 
was extravagant. As regards tae money defrayed on marriage 
of Mosaammat Fatima, first oonsin of the vendor, we hold 
that it WAS a necessity in thid ca^e as Aladad Ali received the in- 
heritance which would have gone to Fatima's father but for the 
circumstance that he died during the life-time of his father, the 
common ancestor of the parties. Plaintiff himself has 
shared in the ioheritaacd so left, and it is not open to him 
to contend that the marriage expenditure to which he was 
boun 1 to contribute equally was unnecessary. We, therefore, 
hold that there was necessity for Bs. 700 including £U. 500 
due to prior encumbrances, and decree plaintiff's appeal accord- 
ingly. The defendants' appeal is dismissed and plaintiff's 
accepted so far as to reduce the amount held payable by 
him from Ets. 1,200 to ECs. 700. Under the circumstances we 
leave the parties to bear their own costs throughout as they 
have succeeded about equally. 



No. 4t 

Before Mr. Justice Johnstone and Mr. Justice Battigan. 
AMRTP LAL AND ANOTHER,— PLAINTIFFS, 

Versus 
BHAQWANA AND OTHERS,— DEFENDANTS. 
Civil Reference No. 27 of 1906. 

Jurtsdietion of Civil or Revenue^' Court -Arrears cf rent of land^Buit 
upon bond given for arrears of rent— Punjab Tenancy Act, 1877, Section 
77 (8; (»). 

Held that a suit baaed upon a bond executed for arrears of rent of 
land ia one oognizable by the Oivil Courts, and does not fall under 
i (n) of Section 77 (8) of the Panjab Teoanoy Aot, 1887. 



^ RifuiMOB Sim. 



1*^6 CIVIL TODGMKNTS-No. 41. [ r,oobd 



Case referred by 8. OUfford, Esquire, Divmonal Judge, Delhi 
Division^ on iSth April 1906. 

This was a reference to a Division Bench made by Battigao, 
J., to determine whether a suit based upon a bond alleged to 
haye been executed for arrears of rent of land is cognizable by a 
Civil or Revenue Court. 

The order of reference by the learned Judge was as 
follows : — 

21^1fay 1906. Battigah, J.— Defendant exeoated a bond for Rs. 66-12-0 

in favour of plaintiff, the consideration being arrears of rent. 
P. Ill l^iff iaa m r.K i bond. la the suit cognisable by a Civil or a 
Elevenue Court ? lu my opinion, it is clearly cognizable by a 
Civil Court as being a claim based upon a bond, the claim for 
rent having merged in the right given by the bond which was 
exeoated in satisfiiotion of the claim for rent. This was, I 
understand, the view adopted by Chatterji, J., in Civil Reference 
No. 95 of 1905, bat as Frizelle, J., has taken a different view in 
• Civil Reference No. 65 of 1897, and as the question is one which 
should be aathiritatively settled, I refer the case to a Division 
Bench. 

The judgment of the learnad Jadges who constituted the 
Division Bench was delivered by— 

dthJany. 1907. Johnstons, J. — Arrears of rent of land became due to plaintiff 

by defendant, who thereupon executed a bond in favour of 
plaintiff for the amount of those arrears. Plaintiff asserts this 
and sues on the bond. There being a confl ict of rulings by this 
Court in regard to the question of jarisdiction of Civil as opposed 
to Revenue Courts in such cases, the Munsif before whom the 
case was pending has Qjade a reference to this Court on the point, 
giving his own opinion that the suit is a revenuo one and falls 
under Section 77 (3) (n), Punjab Tenancy Act, 1887. 

The conflicting rulings are that of Frizelle, J., in Civil 
Reference No. 55 of 1897, decided on 20th November of that 
year, and that of Chatterji, J., in Civil Reference No. 95 of 1905, 
decided on 18th December 1905. In the former order no reasons 
whatever are given, and the reasoning in the reference iteelf does 
not commend itself to us. But Chatterji, J., in the latter 
ruling held, on grounds which appear to us quite sound, that a suit 
of this kind is really a Civil suit. He said : ^ The suit is laid 
"on tte bond and it dearly lies in the Civil Court. " The daim 
^ for rent has been discharged by the bond, and plaintiff, it he 



Apml 1907. ] CIVIL JUDGMBNTS-No. 4i. 17^ 



'* had saed for it, would ha^e been Bacoessfolly met by the plea 
*' that a b)od with one saretj had beea given ia lien of it." 

We fully endorse this reas'miag aod we retara the papers to 
the learned Mansif and direct him to hear the ease. 



No- 42. 
Before Mr. Justice Johnstone, 

HAW SINGH,— (Dkfekdant),— PETITIONER, 

Verstu } RBTxnoN Sidi. 

NDCA SINGH AND OTHERS,— (PLAnrriFis),— RESPONDENTS. 
Civil Revision No. 2057 of 1905. 

Valiiation of 8 wU -"Suit to declare an aliencUion of land to be not binding 
after alienor'e deaih — Value for pwrposee of further appeal— Punjab Courts Act 
L8H Section 40 (b). 

Held that for porpofles of Section 40 (b) of the Pan jab Ooarta Act, 1884, 
the valae of a sait for a declaration that a mortgage by a widow of agri- 
cultural land ffould not b < binding afcer the alldn )r*8 death, i-i the value of 
the land oalcalated at thirty timee the revenue and not the amount of 
the encumbrance in dispute. 

BaJchu V. Jhanda O followed. 

Petition for revision oj the order of Oaptain B, 0. Boe, Additional 
Divisional Judge, Feroeepore Division, dated Uth February 1905. 

Roshan Lai, for petitioner. 

Duni Ghand, for respondents. 

The judgment of the learned Judge so far as is material 
for the purposes of this report was as follows : — 

JoHNSTONB, J.— The irst question in this case is whether an 7th Jany. 1907. 
appeal lies or not The suit is for a declaration that a certain 
mortgage deed in which the consideration was stated at Rs. 300 
but theiand mortgaged by which is worth, according to the 30 
times ^ama rule, only Rs. 60-3-6, shall not affect the reversionary 
rights of the plaintiff. I take this to be in effect a suit for a 
declaration that plaintiff is reversioner to land, worth Rs. 60-3-6 
according to the Baid rule, regardless of any encumbrance created 
by the widow defandant (^). 



(») 145, P. fi., 1892. 



1^8 CIVIL JUDGBtRNTft-Jla 4^. [ 

The first Court dismissed the olaiuii bat the lovrer Appellate 
Court deoreed it, and the mortgagee oame to this Court 
with a revision petition. In calUng for files my brother 
Kensiogtoa noted that an appoal lay as of right, and this opinion 
was repeated by my brother Rattigan, when the case came up 
with files. Now that the case has come on for regular trial 
the point has been raised by the resp indent's counsel and I am 
entitled and indeed bound to de^l with it. He relies upon Bakhu 
V. Jhanda and others (^), while Mr. ftoahan L^l for the mort- 
gagee relies on Ohulam Okaus v. Nahi Bakhsh ('). 

The former rulin:^ has b3en referred to in the latter, and 
has been also foil »wed and has been declared good law in very 
recent ruling') of this Court. The suit there was also for a 
declaration against an alienation for ELs. l,-^00, the value of the 
land by the 30 timed jima rule being Bs. 770. The critical 
valne in that ci^e wa^ Bs. 1,000. It w\a held thit Ri. 770 
was the value. In Ohulam OhavLs v. ^a^' Bakhsh three oases 
were under consideration. The firit two wete pre-emption 
suits, and from them it is not suggested that we can deduoe 
any authority to govern oases like the present. The third 
was a claim by a mirtg^gee for possesion oMand, in which 
it was found by the Court below that the sum of money, on 
payment of which the mortgagor might redeem, was over 
Rb. 1,000, while the value by the 30 times jama rule was under 
Rs. 1,000. Here it was held that the value of the property 
in suit should be taken as over Rs. 1,000. In the second 
paragraph of the head note this snit is called a suit for redemp- 
tion, which is clearly a misdescription. 

In my opinion I must follow Bakhu v. Jhanda and others. 
The ruling of Qhulam Qbans is not directly in point: there 
the valne of the property was no doubt over Rs. 1,000, inas- 
much as no one could take it from the mortgagee plaintiff 
without paying him more than that sum. Here plaintiff 
according to the decree now attached will, on the death of 
the widow, get the land without reference to the mortgage- 
money or its precise amount. There is no connection between 
tlie decree and the amount of the mortgage-money. 

' I rule, then, that no appeal lies, as the valne of the snit 
and the valne of the property involTed must be taken as less 
than Rs. 250. 

Note* — The rest of the judgment is not material to this 
report. — Ed. 

(»)I45,P. r^ 1892. 0)84,/'. «.. 1908. 1'.B. 



AniiL 1907 ] 



OIYIL JUDGMBNT8-N0. 48. 



179 



Na43- 
Before Mr. Justice Rattigwn. 
GXJRDITTA,-(DiTOiDAirr),— APPELLANT, 

Versui \ ArntLin flni. 

NARAIN DA8,-(PLAiiTiFf),— RBSPONDBNT. 
Civil Appeal No. 949 of 1906. 

Morigfige—'Bi('emj.U'c%'^iuit by mci tgagor for redfinpN'on— DtMiiiMaJ 0/ 
9uU for default — Subsequent suit for the same obijeet^ Civil Procedure Code 
1882, Seetione 102, 103. 

Held, tbat a diBoiisssl under Section 102 of the Code of OiTil 
Procednro of a init \>j a mortgagor for redemption of mortgaged property 
predodee the plaintiff under Section 103 from bringing a freeb soit 
for the redemption of the sanie property, 

S^anlMir Bakhsh y. Daya Shankar (*), Mam BaJ v. Ohondwa Mai (•), 
and imdod Al$ v. Eurmat AU (*), referred to. 

Further oppevlfrom the order ofW,A. Le Bosngnol, Esquire^ 
Divisional Judge^ Amritaar Ditision^ dated Wih July 1906. • 

Sohan Lai, for appellant 

The judgment of the learned Judge ip^as as follows :«- 

BATnom, J.— Oo the 20th March 1896 present plaintiff 5^;^ j^^^ 1907, 
sned present defendant for redemption of a certain honse on 
payment of Bs. 40. This sait was dismissed in default 
under Section 102, Civil Procedure Code, on the 8th March 
1897. 

On the Hth December 1905 plaintiff instituted the present 
suit for redemption of the said house on payment of the said 
sum of Bs. 40. The suit was dismissed by the Mnnsif, 1st 
class, as barred by the f roTisions c f Section 103, Civil Piocedure 
Code, but this decision was reverted on appeal by the Divisional 
Judge, wbo held that "the piefcnt and the fomer cause of 
" action are different, for a mortgagor can at any time daim 
** redemption.'* The case was accordingly remanded under 
Section 562, Civil Procedore Code, for decision on the merits. 

Defendant has appealed to tbip Court, and I have heard his 
learned pleader and plaintiff (^l.o appeared in person) in 
support of their respective eases. 



<») I. i. R^ XF, Oalc, 4M. IM 117, P. B., 1891. 

(OWP.B-IW. 



180 ^^^ JUDGM BNTS-No. 48. [ Rkxad 

The allegations in the present plaint are identical with 
those set ont in the preyioos plaint, with the exception that in 
paragraph 4 of the present plaint, the plaintiff alleges that within 
fcnr months of snit he requested defendant to accept the 
snm of Bff. 40 and give np the honse, and that defendant 
has refnsed to comply with this demand. I do not con- 
sider this addition as material or as, in any respect, alterinf^ 
the caase of action which is the denial of plaintiff's alleged 
right to redeem the property. With the exception, however, 
of this addition, the allpgations in the two plaints and the 
reliefs songht in the former and the present snit are, as I 
hare said, ahsolntely the same. The question, then, is whether 
the Divisional Jndge's view is correct that the dismissal 
of the former snit nnder Section 102, Civil Procedure Code, 
is no har, nnder Section 103 of the Code, to the present snit 
hecanse a mortgagor can at any time claim redemption. For 
this very sweeping statement of the law I can find no au- 
thority nor does the learned Judge refer to any. On the 
other hand, the termp of Section 103 aie clear :—" When 
• "a suit is wholly or partially dismissed under Section 102, 
" the plaintiff shall he precluded from hringing a fresh suit 
*' in respect of the same cause of action V If, then, a 
mortgagor sues for redemption and his suit is dismissed 
under Section 102, and he thereafter hrings a fresh suit for 
redemption of the same mortgage is the cause of action in 
the second suit the same as, or different from, the cause of 
action in the Srst suit P To this question there can be 
only one answer, for the very quesMon has been decided 
hy their Lordships of the Privy Council in Shankar Bakhsk 
V. Day a Shankar (i). The head note to this report runs 
as follows :— 

<* To a suit hrought in 1883 for redemption of a iport- 

«< gage made in 1853 villages in Ondh snbsequetly included- 

'* in the mortgagee's talukdari estate and sanady the 

* " defence was that the mortgagor having brought a suit in 

<* 1864 to redeem, and not having appeared at the hearing, 

*' in person or hy pleader, judgment was passed, the mort- 

" gagee having appear 3d to defend against the plaintiff under 

" Section 114 of Act VIII of 1869. Held, 

tioM^mTos^of ^ " *^**» although the plaintiff, who had claimed 

present Oode. " in the prior suit the under proprietary 

•< right in virtue of a sub-settlemctnt, the superior proprietary 
{}) I. L. B., XV. Cole., 422. 



April 1907. ] OIVIL JODQMENTS-No. 43. 181 



«.• right, the differenoo in the mode of relief claimed 
" did not affoot the identity of the cause of action which 
" WAS, in hoth cases, the refnaal of the right to redeem, 
•• and that tinder Section 114 of the Aof, tha judgment of 
*' 1864 was 6nal " Their Lordships at the conolasion of 
their judgment remark : " Various questions have bean raised 
" and very fully argued before their Lordships in order to 
" show that the cause of action in the two suits is not the 
" same, and that the present suit is for a new cause of 
" action. Their LoHship^ have fully considered those argn- 
" ments, and they are unable to come to the oonoluBion 
" that the cauRos of action are not the same and that the 
" judgment of the Additional Judicial Commissioner, who 
" held that the suit was barred under the provisions of Section 
" 44, is wrong." This decision wan followed by this Court 
in Mam Baj v. Okaniwa l/aZ ('). In this case one Bndhn, 
the original mortgagor, appears to have brought a sait is 
1884 for redemption of the mortgage, but his suit was dis- 
missed under Section 102 of the Civil Procedure Code. Sub- 
sequently the heirH of Budhu sued for redemption of the 
same mortgage, and this Court held that the second snit 
(though brought not by the original plaintiff but by his 
representatives) was not maintainable*, being barred by the 
provisions of Section 103 of the Code, (r/. also Imdad Alt 
v. Hurmat Alt (*). Plaintiff has referred me to several 
casen but they do not in any way support the contention 
that the present snit is maintainable. In Ram Chandra Jiwa- 
ji's Case (•), the facts were entirely different. To quote 
from the judgment: — ** In the first suit against the second 
" defendant alone, plaintiff alleged that he was the owner 
" of the equity of redemption by purchase from the first de- 
" fendant and^ as such, was entitled to redeem the second 
*• defendant's mint »i'^e. In this suit his case is that he 
" contraoted for the purohase of the property from the first 
"defendant, the latter uidortakiag t> clear it of the second 
" defer dant's mortgage ; that the Becond defendant has since 
*• purchased the equity of redemption from the first defen- 
'* dant with full knowledge of the said contract, and he sub- 
** stantially, tbongh not in strict form, seeks that both the 
** defendants may be compelled to specifically perform the 
" contract. Undor these circumstances we do not think thai 



(») 117 P. R,, 1891. («) 32 P. B., 1906. 

(») I. L. R^ 10 6om.,2S. 



182 CIVIL JODGMBNTS-No. 44 [ Bmokd 



" Section 103 preclndes plaintiff from bringing his present 
" suit." Here clearly the two caases of action were in no 
sense identical. The plaintiff has cited a large number of antho- 
ritiefi (Shthbu Mai v. Patra Singh (') Nathu Singh v. Bura (*), 
Sami V. Soma Sundra (^), Perindi v. Angappa (*), Muham- 
mad V. Manu Lai (*), Ramani v. Bramma («), whiob lay 
down the proposition that when a suit for redemption luui 
been inatitnted and a decro<^ has been passed for redemption 
but not executed a^ubseqaent suit for redemption of the same 
mortgage is maintainable. It is a question whether this is % 
correct proposition and there nre an equal number of authorities 
which decide that in such cases a subsequent suit is not maintain- 
able : Vide Vedapuratti v. Vallahha Valiya Baja ('), Gan Savant 
Bal Savant v. Nary an Bhond Savant {*), Malofi v Sagaji (•), David 
Bay V, Bazi'ud'din (lo). As observed by Sir A. White, 0. J., 
in the Vedapuratti's case at page 307), the right to redeem might 
be a subsisting right until it is duly forclosed, but it does 
not follow that it is enfoicible by a second redemption suit. Bat 
whether the principle laid down in Shtbhu Mai v. Paira Singh (•), 
and the other cases relied upon by plaintiff is correct or not, it 
is obvious thnt these authorities are not in point in the present 
instance, whereas the two cases referred to on behalf of 
appellant are direct authorities for holding that the present 
suit is barred by the provisions of Section 103, Civil Procedure 
Code. I therefore accept the appeal and, reversing the order 
of the lower Appellate Court, dismiss the suit with costs 

thronghont. 

Appeal allowed. 



No. 44. 

Before Mr, Justice Johnstone and Mr, Justice Shah Din. 
GULDAD KHAN,-(Plaintipf),— APPELLANT, 

APPBLLANB SiDB. { VerSUS 

GTTL KHAN AND ANOTHER,— (DEFBNDAirrs), — 

RESPONDENTS. 

Civil Appeal No. 561 of 1906. 

OuBlom^ Pre-emption— Value of wajib-nl-arz Ghakwar— Cofi/Itct heiveeen 
earlier and later wajib-al-arz. 

Held, that the wtjih'uUarz Chakwar of Pindi Gheb Tahsil, District 
Rawalpindi, is not a part of the record of rights and so baa attaohiog to it 



(») 86 P. «., 1877. (•) I. L. R., XV Mad,. 866. 

(•) U P. B., 1881. C) /. L. R, JXF Mai., 800, F. B. 

(») /. L, R., VI Mad,, 119. (•) /. L, R, VII Bom., 467. 
V*) T. L. R., VII Mad, Ud, (•) /. L. R., Xlll Bom., 567. 

\*] I, L, R, XI All., 386. (10) i. L. R., XIX All., «02. 



April 1907. 1 CIVIL JUDGMENTS -No. 44. 183' 



no preaampfcion of correctness under Section 44, Punjab Land R^venne Acfc, 
and that its evidential value ia small, inasuiuch as it statrs the custom of 
pre-emption which is always a local custom, by tribes. 

Held also that the value even of a genuine Wajib-ul-arz favouring re- 
latives in the matter of pre-einption and standing unsupported by actual 
proof of custom, followed by a later Wajib-ul-arz in which the "law" or 
Act IV of 1872 is stated to contHin the rule of pre-emption, is bo small that 
even negative indications the other wny are sufficient to reduce \t» value to 
nothing. 

Muhammad Imam Ali Khan v. Husain Khan (M, Oajjan v. Bhopa and 
Nand Singh (,•), DUsukh Bam v. Nathu Singh (»), Mastu v. Pr^hlo (♦>, iiuham- 
mad Omar v. Kirpal Singh (*), Jawahir v. Radha »,«), Ali Muhammad v. 
Piran Ditto ('), and Karam Shah v. Tar a Shah (^) — referred to. 

Further Appeal from the decree of H. Scott- ^mithy Esquire^ 
Divinonal Jvdge^ Rawalpindi Division, dated \9th May 1906. 

Sukh Dial — for appellant. 
Mohammad Shafi — for respondentfl. 

The jadgment of the Chief Court was delivered by — 

JOHNSTOKE, J.— This Case has been referred for disposal ^nd Jantia/ry 1970. 
to a Division ^ Bench by the Hon'ble Mr. Justice Ohitty 
OD the i^round that questions of difficulty and importance arise in 
it ; and he has put those questions in this way — (1) whether a 
Ohakwor wajib-ul-arz is a record of rights within the meaning of 
the Pnnjab Laud Revenue Act, 1887 ; (2) If soy whether there 
is any presumption in favour of the correctness of an earlier 
Ufajib'Ul-arz where a new one has been substituted for it (see 
Section 44 of the Act). 

The suit was one for pi-e-emption of land in the village of 
Nakka^ Dai^iZt Haddowali, the grounds being stated as the 
agnatic lelationship of plaintiff to the vendor and plaintiffs 
being a jaddi malik in Nakka, wheieas vendee was a mulik by 
parchaae and not related to vendor. The village is undoubtedly 
bhaya chara and so to prove that relationship helps him, plaintiff 
must prove a special custom in this behalf. The Brst Court held, 
in effect, that no such speoiil cnstom was established ; and in 
reference to a dispute as to th« real sub-divisions of the village, 
it held that Nakka was a single sub-division and not divided 
farther into four sub-divisions, and fo, though plaintiff was owner 



(«) /. L. R., ZXVI Cal., 81 P. 0. (•) 78 P. fi., 1904. 

(•) 27 P. «., 1893. (0) H5 P. «., 1905. 

(•) 98 P. U., 1894 F. B. (») 70 P. R., 1905. 

(•) 62 P. B., 1S96. (•) 87 P. il., 1905. 



l84 CIVIL JUDGMENTS- No. 44. [ Bic6Bt) 

in the fame prettrded fnither subdiviFicD as that in which the 
land in fiTiit ]ieF, while plaintiff vr as not, ytt, irapmuch as both 
parties were owners in Kakka, plaintiff's rights were no better 
than the vendee's. The decision as to custom proceeded open 
the fact of the village being a bhoya chara one and upon a 
judgment of Ibe Divipional Jodge of Bawalpirdi in a preTious 
case. The uajil-ul-arz Chak^sai of 18C8 ai d the wo/it ul-ort of 
the Tillage of 1886 weie not even mentioned, the ftrmer not 
haying been relied upon by the plaintiff. 

The learned Divisional Judge, whtn the caee came before 
him on appeal, ccnt-ideitd both the btattn.ent of lights of 
1868 and that of 1886. Put biie^j, the foimei gives a superior 
right of pre-emption, in the cape of lands held by Pathans in the 
whole Tahsil of Pindigheb, to collaterals as compared with 
persons not related to the vendor. It is a Kaumtcar statement 
for the whole Tahnil. The document of 1886 is the ordinary 
Tillage administration paper of Mauza Haddowali, and the 
statement of custom in it is for the village and not for any par- 
ticular tribe. As legards pre-enption the entry is that ic follows 
the law (which means Act 17 of 1872). The Divisional Judge 
also found against the plaintiff. 

Ily own opinion is that the Chakwar wajih'ul-afz is not 
properly speaking part of the Settlement record, which is a 
village record ; that therefore no presumption of corrt«ctnes8 
' attaches to it under Section 44, Punjab Land Revenue Act ; that, 
eTen if it be taken to form part of the settlement record, the 
circnmstance that it states custom as tribal, whereas pre-emption 
is peculiarly a ZocaZ CD stom, deprives" the entry of nearly all its 
presumptive value, cf. Muhammad Imam Ali Khan v. Husain 
Khan (*)» ('^^ P^R*^ ^-» ^^^^ para., 8rd sentence) ; that though the 
village wajib-ul-arz of 1886 does not exclude custom, yet, inas- 
'niuch vs it states do custom, the party allogiug a special custom 
must prove it ; and that on a review of the evidence on the 
record, in the light of precedents and authorities, no special 
custom is established. 1 should note here that it' has not been 
alleged that in the wujib-ul-are of the village of 1868 any reference 
whatever is made to prc-emplion or to the statement of custom 
in the Chakwar t(7a/t6- tiZ-arz ; also that plaintiff did not in the 
first Court rely upon or even mentiou the latter document. 

Section 31 (2), Land Uevenue Act, lays down what a 
•'record of rights" shall include. Clause (b) of the sub-section 



{^) I,L. B., 26, Oal,, 81, P. 0. 



AftML 190ir. ] CIVIL JUDGMENTS-Ka 44. l|^ 

rans— " a statement of customs respecting right* and liabilities 
*' in the estate **: and in the Financial Commissioner's instrnc- 
tions, issued with the approval of Government,— see page 95, 
Maian Qopal'ftv Punjab Land Revenue Act, 2nd Edition — these 
words are repeated. It seems to me, then, that a docament in 
which customs are stated for a whole Tahsil, tribe by tribe, 
inasmuch as it does not deal with rights and liabilities in an 
estate, cannot be said to fall within clause (&) aforesaid. Having 
no presumptive value, then, it may have, and has, only such 
evidential value as a riwaj-i-am has been held to have. It has 
been often ruled that a riwaj'i-am does not prove customs stated 
in it ; it helps to prove them. aVid it serves as a guide to enquiry, 
but actual instances of enforcement of the customs stated are 
necessary. 

We have been referred to a number of published and un- 
published rulings in connection with these questions of the value 
and use of the wnjih-ul-arz generally and the relative value of an 
earlier and a later waJib-uUarz of a village. I will discuss them 
all now, and will shew that they do not overthrow the proposi- 
tions I have stated above. 

Oajjan v. Bhopa and Nund Singh (*). was a Ludhiana case. 
The earlier wajih-td-arz (1852) gave preference, in preemption, 
to relatives. Tie later one (1883) declared that pre-emption 
follows iho law, as here ; nnd it was fonnd that the earlier entry 
had never been followed in practice,. and that the only judicial 
decision (of 1890) had been the other way. The result was a 
finding that no specinl custom had been made out. In Bilsuhh 
Ram V. Nnthn Singh (^), it waH laid down that an entry in a 
wajib-ul-arz favouring the pre-emptive rights of relatives was 
not an " agreement " but a statement of custom, and that, where 
no instances had ever occarod, the entry was not suflBcient proof 
of the custom. 

In Masta v. Pohlo (^), there were the ivaj ib-ul-arz of 186 h 
and that of a later settlement. In the first was a statement in 
favour of relatives as pre-emptors, u\ the second, silence. It 
was hold that the earlier statement of custom was not cancelled 
by the more recent one, and that the party denying the correct- 
ness of the earlier statement must prove its incorrectness. 



(') 27 P. R., 1893. (•) 9«, t. «., 1894, F. B. 

< } 52, P. R., 1895 



194 ^^I*" JX7DGMBKT8— No. 44. [ Rboou 

In Muhammad Umor v. Kirpal Sinqh ( ) it \?a8 laid down 
that THlsukh Ram v. Sathu Singh (^) mast not' be tftkeu as hold- 
ing that, where a later ttajtb-ul-arz is inconsistent with an earlier 
one, the earlier one still remains in forct . This is nndonbt-edlj 
fioand ; hot I donbt whether th'^ additional dictum is correct, that 
there is any necessary inconsistency between a statement in fayonr 
of the pre-emptive rights of relatiyes and a statement that 
pre-emption follows Act IV of 1872. The next rnliog, Jotcahir 
V. Badha (*), seems to lay it down that there is no saoh 
inconsistency and that the earlier of two snch statementa of 
CQstora has a certain presnmption of correctness attaching to it. 
In All MuhamTnad v. Piran Ditta (*) aIfo entries in effect similar 
to these were held not mataally contradictory. 

All these oases are oonoemed with two genaine snocessive 
wajib'uUarzes. In the present case in my opinion the earlier 
statement of cnstom is not on the same footing as a village 
wajib'td'Orz »>nd so is not part of the " rocord of rights," but 
I have dfpcossed these cases because I wish to explain that» 
OTon if the Ohakwar wajtb-ul-arz has attaching to it the 
presumption afforded by Section 4i, Land Re venae Act, that 
presumption is extremely weak, and is virtually rebutted by the 
facts of the case. 

And here I should mention the following unpublished 
judgments of this Oourt dealing with similar questions, vtz.^ 
Baldu, V. Sharaf Alt and Saudagar (Civil Appeal, 991 of ^896). 
Uma^ Din and others^ v. So^na and others (Civil Appeal 1015 
of 1905). Bahadar Singh v. Bhola and others (Civil Appeal, 
743 of 1899). Wazir Bakhsh, v. Karm Dad and others (C\v\\ 
Appeal 89 of 1900). 

The first of these comes from Hissar. In the wajih*ularz 
of 1864 pre-emption on mortgage-* was affirmed ; in the later 
wajih-ul-arzy silence. It was held that, though the old 
toajib ul-arzy cannot be said to be of no value, it was before Act 
lY of 1872, and the facts of absence of instances under it and of 
silence of new wajib-ul-arz showed that the alleged cnstom had 
no existence. 

In Umar Din's case (Lahore) the wajib-ul-arz of 1856 was 
in favour of relatives, and the later settlement recoixls of 



(») 78. P. B., 1904. (») 85, P. B,, 1906. 

(•) 98, P. «., 1894. (•) 70, P. B., 1901. 



Apeil 1007. ] OIYCL JUDOMBNTS -No. 44. 187 

onstom were silention the point. It was beld that the alleged 
oastom was not proTed. Up to 1856 there had heen no sales at 
all. Bhador Singh's case (Lahore) was similar, except that 
several sale^ had taken place since 1856 without reference to the 
mle laid down in that year. 

In Wazir Baksh v. Karam Dad the Conrt, upon circcrmstan- 
oes similar to those of Chijjan v. Bhopa (*) quoted above, found in 
the same sense. 

I think all these cases shew that the value eren of a 
genuine wajih-uharz fsvouring relatives in the matter of 
pre-emption and standing unsupported by actual proof of custom 
followed by a later wajih-ul-arz in which the " law " of Act 
lY of 1872 is stated to contain the rule of pre-emption, is io 
small as to be virtually m7. Technically the value is not m7, for 
see Masta v. Fohlo (*) and Jowahtr v. Badha (•>, but even 
negative indications the other way are sufficient to reduce its 
value to nothing. 

Now let us turn to the cases in which the value of a 
wajib'uUarz OJakwar is directly or indirectly dealc with : K aram 
Shahy. Tara Shah (*) which is really a Division Bench case and 
not, as printed, a single Judge case) comes from the Fatteh Jang 
Tahsil of the Rawalpindi District. The Judgment is a brief one. 
If finds in favour of the party relying on the Chakwar 
vmib-ut-arz ; but it does po (partly at least) on the ground that 
there are three instances in support of it. It nowhere says that 
the Chakwar wajih-ul-arz is part of the record of lights or has 
taij prestimft^tion attaching to it. The view of the learned Judges 
as to its value appears to be that it has some evidential value, . 
but, even so, much less value than an ordinary village 
toc^ib-ulro/rz. 

Next comes Nawab Khan v. Muhammad KJian and 
others (Civil Appeal 127 of 1899), from Pindigheb Tahsil 
as in present case. Indirectly the old wajib'td-arz Chakwar 
seems to have been treated as on the same footing as the 
new villsg*' Wajib-uL-arZy for it is said that the new entry 
of custom does not cancel the old ; but it is held that 
the alleged custom mu«t be proved by instances, and it was held 
so proved by one cAse in which the same vendee admitted the 
custom. 

(») 27, P. «., 1893. (') 85, P. B., 1906. 

(•) 52. P R., 1896. (♦) 87, P. B., 1906, 



188 CIVIL JUDGMENTS-No. 45. [ Rmobd 



In Civil appeal 1330 of 1905 and 1171 of 1905 (one case) 
the same wajtb-ul-art Cbakwar was held not cancelled by later 
Tillage ttmjtb'td-arz, and on the evidence in the case it wafl found 
that the oastom as stated in the former prevailed. 

It seemi to me fair to say that in none of these cases was it 
found, after direct discassion of the pjiafc, thit the Gciak«\rar 
doonment fornied part of the record of rights with the piesamp- 
tion of correctnees stated in Section 44, Land Revenae Act, 
attaching to it. The most that was f ootid was that the entry had 
certain evidential Valne ; and I have no hesitation in saying that 
that valne is so small that no decree shOold be based on it. 

Mr. Snkb Dial, in his argament for the plain tifF, has not 

pretended that there is on the record any actnal proof of custom 

in favour of relatives in Manza Haddowali. The learned 

Divisional Judge has given two contrary precedents. It is 

needless to say more. I would dismiss this appeal with 



costs. 



Appeal dismtased 



No. 45. 



Before Mr, Justice Johnstone and Mr, Justice 
Shah Din, 
KALU,— ( Defendant),— PBTITIONE R, 
RmuvoiSiDi. { Y^g^g' 

PARTA MAL,-(Plaintipf),-RBSPONDBNT. 

Civil Reference No. 19 of 1906. 

Punjab Tenancy Act, 1887, Section 100 -- Reference to Chief Oourt^ 
Valfdation of proceedings where there had been no misiaJce as to jurisdiction. 

Where a Commissiooer, on appeal, in a suit whioh as framed was oog* 
nizable by a Revenae Gonrt, after coming to the conchision that the plain- 
tiff had failed to substantiate his claim as laid, but that on the facts as 
proved he could have brought a suit oti a different c-iuse of aocion whioh 
woald be cognizable by a Civil Court, referred the case to the Chief OoQrt 
with a suggeiaion that the decree of tho Assistant Collector might 
be registered as the decree of the District Judge : held that the suit 
as framed being exclusively cognizable by a Revenue Court, and thare 
having bieo no mistake as to Jarislictiou th^ r^fer^nce did not 
fall withia the saopa of Siotion 100 uf the Punjab Tenancy Act, 
and consequently the Chief Court was not competent to order the decree of 
the Assistant Collector to be registered as that of the Distriot Judge. 



Apeil 19C7. ] CIVIL JUDGMBNTS— Na 45. 16^ 



Oase referred by B, E, Younghusband^ Esquire, Commissioner^ 

Lahore Bivisim^ on 9th March 1906. 
This is a reference ander Section 100 of the Punjab Tenancy 
•Act, 1887, by the Commissioner of Lahore Division. 

The order of reference by the learned Oonimissioner was an 
follows t — 

On the 23rd August 1890 Kalu, Defendant, executed a mortgai?6 deed for 
10 GhamauQs. 5 Kanah a,ni 1 marla (wrongly described at the commencement 
of the deed as 50 Ohamauns, 6 Xnnals 1 Maria without poasesiion) in inYOTU of 
Parta Mai, Plaintiff, for Rs. 400 Defendant agreed to pay Re. 1.8-0 per cent, 
monthly Interest and hypothecated the land as security for the debt. On the 
I5th January 18^9 Defendant executed a deed described as a * Kahuliyat * ta 
the following effect. After referring to the mortgage deed of 1890 the deed 
goes on to say : — " I have settled up accounts to date. From to-day instead of 
iaterest, I have a^reai to pay Its 72 as * Mnlikana * of the above-mentioned 
laud to the mDrtgi^ee. I will pay Ri. 5 ) in J^th l.»5 j and fta. 22 ix; Katak. 
I have takea the land for on3 year from Lila Parta Mai for cultivation. 
After the period (of one year) I will give up the land or execute a fresh 
agreement ." This agreement was on an eight-anna stamp and was nol 
registered. 

PialatiS suel for Rs. 2 Id as rent for 3 years and for possassion of the 
land, but subsequently struck out the claim for possession. In the FirBt 
Oourt Defendant admitted execution of both deeds, but pleaded (1) as to the 
mortgage deed that he had not received any consideration for it, and (2) as 
to the kahuliyat that he did not know the contents of it, and thougjift it 
referred to something quite di Cerent. The First Oourt found that whether 
or no the kahuliyat was duly executed by Defendant, Plaintiff, was not 
shown as landlord in the revenue papers and was therefore not entitled to 
sue for rent. The Lower Appellate Court found that the hdbuliyat 
was duly executed by Defeniint and that in consequence the relation of 
landlord and tenant existed between them, and that it was immaterial 
whether mutation of names had been effected or not. 

It se3Tis to m3 that in this case it has not been shown how and whea 
Plaintiff bacame landlord of the land. I am referred to the kahiiliyat and to 
Ssjtioa 118 of thd Eni'inz^ Acjt. But that does not solve the difficulty. 
Sactiou 11(5 lays down that a tenant may not deny his landlord's title, but 
the point at issue is whether the partias are landlord and tenant. Under the 
mortgage deed of 18d ) Plaintiff clearly did not become mortgagee with 
possession or ' landlord,* I am told that the * kahuliyat * constituted him 
mortgagee with possession and landlord. But an unregistered agreement on 
an ei^t-anna stamp is insufficient to convert the holder of a mortgage with pos- 
session into a mortgagee with possession. It seems to me that the ' kahvliyat ^ 
should be read as not affecting the land in any way, but simply as an agreement 
to pay Rs. 7z a year, vu., Rs. 50 in Jeth and Rs. 22 in Katak as interest on the 
loan of Rs- 400 instead of the interest, formerly agreed upon, that a suit lies fw 
interest not for rent, and that the decree which has been passed by the Lower 
Appellate Oourt should have been not a decree for Rs. 216 on account of rent* 
but a decree lor Rs. 216 on account of interest for three years. 



190 CIVIL JUDGMENTS— No. 45. [ Bi 



The record of the case is sobmitted to the Chief Oonrt with the suggestion 
that the decree of Lala Moti Ram shovld be regLstered as the decree of the 
District Judge. 

The Jnd^ent of the Chief Conrt was delivered by*- 

lith Dee, 1906. Shah Din, J. — Affcor givinjf onr very best oongidemiiott to 

the armaments addressed to ns by the pleader for the petitioner, 
wen^ee with Mr. Justice Chatterji, who haa Mrdeced this 
reference to be laid before a Diyieion Bench for dispeaal, that, 
npon the find infjfs recorded by the GommisaioDer, it waa rot 
oontpetent to liim to make a reference to this Court ander section 
100 of the Pail jab Tenancy Act (XVI of 1887). The snit aa 
laid was clearly one cognizable by a Revenne Conrt, and the 
Connuifisioner does not hold that npon the allegations contained 
in the plaint the Assistant Collector had no jorii^dietion to. try; the 
soit. If, as the Commissioner appears to ns to hokl,iha relaition 
of landlord and tenant did not exist between the> partiea 
bnder the mortgage deed of 1890, and jf, as is found by him, the 
KahuUyat of 1899 did not create any snch relation, tlie only 
correct order that con Id have been passed in the CNse , was one 
dismissing the plaintiff's sait on the merits, leaving the plaintiff, 
if so advised, to sue in a Civil Court for reooyery of B8».216rdae 
(as the Oomraissioner thinks) on account of intoresl^ for 3 /fears, 
and not on account of rent. According to the view that apparent* 
ly oommended itself to the Commissioner, the plaintiff dnght 
to have instituted a suit in a Civil Court, npon allegations 
different from those with which became into theReYeoue Coort 
t butfroiQ this it by no means follows that if the plain tiff ^jqame 
into the Revenue Cnnrt with a suit properly ironed aa a 
' Revenne suit, the Revenue Court had no jurisdiction, to try it. 
It is now well estabHahed 4>y authority that of a* general itule 
the jurifldiotion of a Conrt in which a suit is instituted is to ^ be 
determined by reference to the allei^tion contained in the 
plaint supplcTnented in some instances by statements made by the 
plaintiff in the course of the pleadings.— (Sac Mewa Singh v. 
Nathu (<)» NoAna v. Mosam (•), Bam Singh v. Jowala Singh .(•), 
and Mula v. Oandu(*y, at paees 398— 399.) The allegations 
' made in the plaint in the suit out of which the pwesent retesoce 
has arisen are specific and explicit, and upon those allegalioiis, 
we think, it i^ clear that the Assistant Collector had jorisdiotion 
to hear and determine the suit. 



(M 22, P. R., 1S94. (») 55, P. 1., 1896. 

(•) 23, P. ft., 1895. (*) 98, P. ft., 19CW, 



A:PR\h\90/f. ] CIVIL JUDGM«NT8-Ho. 46. 1^1 

For the above reaeoi^e, we canuct, we think, enteitain this 
reference aa one. properly falling within the scope of Section 
100 of the Punjab Tenapcj Act, and we conseqnently retnrn the 
reo^rdrto the CominiBBioner who will diE>p<^eof the case with 
reference to the foregping remarks. 



No. 46. 

Before Mr. Justice Shah Dm. 
SQOHET SIHGH,—(PLaHTiw),- APPELLANT 

Versus j Apmluti' Sidi. 

DIAL SINGH AND AN0THEEl,-(DEfBNDAiiT8),— 
RESPONDENTS. 

Civil Appeal Jjio. 998 of 1906* 

Uwigags by conkditkmai mU-^ Foreeloaure- Rtgulation XVII of 1806 
— JToHet undsr $sction S^Non^eaUtfnce qf tuck notice on for0eloBur9 file -> 
Preeumptiom astoite regvlerity— 

In a case for redemption the defendaDt pleaded that tba alleged 
movtBigfrhad beeo foreolosed so far l^ok. aa 1881. The plaintifi denied 
this iallegation and urged that do prescribed notice had ever been iQsaed 
or aervvdon Win.. The file of the foreclosure prooeedinga having been 
liroog^ np,, }i was diecovered that nathi B, including the notice in qaes- 
iioa bad been destroyed, but from the documenU in nathi A, it appeared 
that a notice had been, ordered lo be issued to the mortgagor and 
that the latter bad attended the District Court, when the Judge passed 
the fbllowing order :— 

" Fatties present, defendant (present plsintiif) has been thoronghly 
** warned that within one year he ahoald have the land redeemed, thereafter . 
** no ezoQse will be listener] Jbo." 

Held that the non-eii^tence of the iiciice was a fatal defept to the 
vaHdilg^ of the foreclosure proceedings, as it could not be presumed pn the 
strengih of the above order of the District Judge that the notice issued 
to ^he mortgagor had been served npon him or that it complied with all 
the, requirements of procedure as laid down in Section 8 of the Regulation. 

f^vrt&er appeal from the decree of W' A. Le Bossignol^ E squire ^ 
Divi^onai iudge.^ Amritsar Division^ dated 2,0th June 1906. 

Moirison, for appellant. 

Faeal-i*Ilahi, for respondents. 

The judgment of the learned Jndge waa as follows :-* 

Shah Dik, J. — Th^ facts are folly stated in thi» judgments of « , j ,^y 
the Coarts below, and need not be repeated.. The sole 'qaestion 



192 CIVIL JUDGMENTS— Ko. 46. | fiBCoRb 

for detcnniDaiicD in this appenl iv, ^helher, ihe pl^iintifl -wbo 
mortgaged the land in poit by i/ray cf corditir ral fbIp to ihe 
predecessor in interest of the defendants in 187], hn^c lost his 
right of redemption by reason of the mortgage baring been 
foreclosed in 1882 nnder Begnlation XVII of 1806. 

After bearing counsel for the parties X think that this 
appeal must succeed. The notice of foreclosuie, which is alleged 
to have been issued to the mortgagor in 1881, is not on the 
record of the foreclosure proceedings^ and the question for 
decision is whether in the absence of that notice the Court can, 
\n the present suit, pi^esume, on the strength of the order of the 
District Judge, dated 1st August 1881, on ihe foreclosare file, 
not only that the notice was served upon the nnortgagor, but 
also that the notice if so served complied with all the conditions 
of foreclosure as laid down in Section 8 of the Regulation. I 
agree with the coansel for the appellant that no such presump- 
tion can in law be made, and that in a suit such as the present, 
it is for the mortgagee who relies on foreclcFure prcceedings 
having worked a forfeiture of the estate of the mortgagor, 
to prove affirmatively the due performance of every condition 
necessary to be established under the Eegolation before the 
foreclosure can attach upon such estate. This proposition is 
now too tirmly established by an unbroken cm rent of published 
decisions of this Court to need an elaborate dipcnssion, and I 
consider it therefore sufficient to cite only a lew of thoFe de- 
cisions in order to show that the position taken op for the 
appellant is an unassailable one : see Mvssammat Lachmi v. 
Tota (*), Kirpa Earn v. BJuzgtcona (*), Wasawa Singh v. 
Bura (»), Hiia Singh v. Sher Singh (♦), Fazal Ilahi v. Batari 
Singh (*), and Malla v. Ballia ham (•). The lower Appellate 
Court remarks that the words of the Regulation have been made 
quite a fetish of by the Courts in this country, but it overlooks 
the fact the latter have in this respect only followed (as indeed 
they were bound to follow) the judicial pronouncements of 
no less a tribunal than the Privy Council, which has ruled 
more than once that, in view of the vast importance to the 
mortgagors of the notification under the Regulation and of the 
consequences that follow, it is absolutely esFential that all 
the requirement of the law in regard to foreclosure proceedings 



(^) 16 p. B., 1888. (♦) 29 P. U., 1898. 

(») loe P. /?., 1889. (») 48 P. fl., 1902. 

(•) 24 P. i?., 1895. («> 71 P. B., 1908. 



April IdO*. ] 



CIVIL JU1>GMBNT&— No. 4^. 198 



be strictly complied ^itb (see Norendra Narain Su.gh v. Lwarla 
Lai MundoT (t), «uid Madho Pershad v. OojuJar (»). It is Bomewhat 
difficnlttoeee how in the face of the decisions of snch high 
authority, it is open to a court iu this country to presume 
(without affirmative proof by the mortgagee) that the impera- 
tive provisions of the Regulation have in a case like the 
present been satisfied. 

The order of the District Judge, dated 1st August 1881. 
only shows tliat the plaintiff appeared in person before the 
Judge, whether after service of notice upon him or otherwise 
it is impossible to determine, and was warned that if he shall 
not redeem the land within one year (from what date is by no 
means clear), he will be precluded from raising any objection 
(«^) thereafter. Surely it does not follow from this exneces^ 
Htaierei that the notice that had been issued to the mortgagor 
was in proper form as to its contente, that it was accompanied 
hy a copy of the mortgagee's petition for foreclosure, and that 
it bore the seal and the official signature (not merely the initials) 
of the District Judge. If in any one of these particulars the 
notice was defective the foreclosure proceedings were bad in 
law and they do not avail the defendants in this case. More- 
over the mortgagee's petition, dated 27th June 1881, does not 
state that a demand for payment had been made from the 
mortgagor before the petition was filed, and it is now well 
established that the omission to make such a demand is fatal 
to foreclosure proceedings. For these reasons I accept this 
appeal and decree the plaintiff's claim. The parties will bear 
their own costs throughout. 

Appeal aUowed* 

No. 47. 

Before Mr. Justice Johnstone and Mr. Justice Chitty. 

MAHTAB SINGH,— (Defendant),— APPELLANT, 

Versus \ Appbluts Sit»i. 

NIAZ ALI,— (PLAtNTirF),-RBSPONDBNT. 

Civil Appeal No. 1396 of 1905. 

Ouitom— Pre-emption-- Right of fre^emft^on claimed hy virtue of owner- 
Bhip of house opposite hut separate from that soW-Katra Karihayan, AmriUar 
City^Burden of proof -Pwnjah Laws Act, 1872, Section 11. 

Held, ihnt ftlthon^h the costom of pre-emption in respect of Wilee 
of bonne* pr operty by rengon of vicinage has been establiahad to pr evail 

(») /. L, K., Ill Cal., 397 P. C. (•) /. L. B., XI Col., Ill P. 0. 



in EcOfu KanhayftD of Ihe. ^ity of Anitii^ari the , plain Mff Jtuuil^M ^^ 
prove tb^ Bpeoial iiici<}ei>t whereby ^le ab owi.^r of a Mq^® opposite to 
tha. hoase sold, hot eeperated from it by a road or lane bad a rifibt 
to claim pre-emption against tbe vendee irbo i^a^ a mere 
Btracger. 

AU Muhammad v. Kadir Bahhih (^), not followed. Mela Bam, T. . 
Prema (•), and Ilahi Bakhsh v. iftraii BaJchsh (•), followed. 

Furiker appeal from the decree.ef A. E. Hurry, Enquire, tivi&mal 
Judge, Amritsnr Dtvision, dated, ISth October 1904. 

Ishwar Das, for appellant. 

Kamal-ad-diD, for respondeDt. 

Tbe jadgtneotoiof th^ learned Judges were'«8 ioUgwat— 

3rd Now. 1906. Ghittt, J. — The plaintiff saed for possession by preremptipn 

of a bonse situate in £a^ra Kanhayan in Amritsar City. The 
plaintiff's bonse, by virtue of which be claimed the rights , 
is situate opposite to tbe house in snit, on the other side of 
a narrow guUy. The plaintiff succeeded in proving that the 
custom of pre-emption prevails generally in Katra Eanhayan 
but he did not prove that it would apply in the case of , 
bouses not adjoining or contiguous but opposite to one another. 
Tbe only point for our determination is whether tbe plaintiff 
has carried bis case far enough. The Courts below relying 
on tbe ruling iu AU Muhammad v. Kadir Bakheh (^), tba( 
** it is not necessary to prove contigaity of houses and that 
<* ordinarily vicinage is sufficient*' decided in the. plaintift's. 
favour. It is to be regretted that they aid not also refer to the . 
ease of Mela Bam v. Prema ('), which is to be found two 
pages below in tbe f<ame volume, for there a very different 
view of tbe law is given. Tbe question however has been 
recently discussed by a Division Bench of this Court (of which 
I wa& xA member) ; see Ilahi Bahheh t. Mitan Bakhsh (*)tr In 
that case tbe dictum in the case relied upon by thaGourts 
below {AU Muhammad v. Kadir Bakhsh) was expressly dissented 
from. Tbe Division Bench case appears to me to be not 
distinguishable in priueiple from the case now before us, and 
I need only say that I adhere to the conclusions at which 
we then arrived after a full oonsideiatien of the various 
authorities. The learned pleader for tbe respondent has 
cited another recent ruling of this Court Jai Devi y. Naubat 

(*) 107 P. I?., IPOO. (•) 109 P. R.; 190O. 

F-: : (•) e8P.B.,l9oe. 



•Af»L Il9<y7. ] ^VIL JUDGMBNTS-No. 47. -UOb 

Bad (^). That waa a. -case of rival olaimaofcs) and^^pty^faraeoe 
twaSivgiveu to one .«h» owned aearly half tha^ bonaevAlong 
with the vendor in preferenoa to the vandeo.wha/ asMie^ ft 
hoose across a lane. That case, in my opinion, has no bearing 
on the present. It does not help the respondent in any way. 
Adhering to tho rnling in llahi Bakhsh's ease I wdnld hold 
that it was incombent on the plaintiff to prove, not only 
tlni general oastom, bat snob special incident's as won Id toake 
it appli6^ble to his case, namely, that of a honse vppoaite 
to and not adjoining *the hoase in dispute. The plaintiff 
having failed in that respect, his suit shonld. be dis- 
niiBsed. 

I woald allow this appeal and dismiss plaiiltiff's suit with 
cost's throughont. 

Johnstone, J. —I agree with my learned ool^agne. that 3^^ V^f^r^ 1906. 
llahi Bukhsh's case most be followed bare. After considering 
the contention set np by Mr. Kamal-ad-din against the sound- 
ness o£.tbat judgment— a contention by no means devoid 
of force — I hold .that we should not dissent from that judgment. 
I. would like, however, to state this part of Mr. Kamal-ud-din*8 
argument so as to show exactly what it is that we overrule in it. 

He argues'that, leaving out i llahi "BakhsbV case,' the 
series of rulings on the subject of pre-emption in 
towns whdu analysed yield , three , ct^tegoriea of pases, 
namely— . 

.'[(1).. detest between neighbour and stranger. 

(2) Contest between neighbour and neighbours. 

(3) Contest between neighbour and co-sharer. 

Under (1) come Baltft^^m v. Kalian Khan (•), Muhammad 
SaliimaUUa ?. Jalal-ud-din (*), AUMnhamn^ad v. Kadtr Bakhsh 
(*), and Jai Devi v, Naubat\^Bai (i). In all these cases, he 
asseirts, no stringent proof of cnstom was .required, it being 
held sufficient that the custom of pre-emption did prevail 
in the part of the town concerned. 

•Under (2)f5ame^ Mehtah Boy v. 'AmtrOhan4t(^y, OhoHdhrt 
Khem Singh y^ . JImiammat Taj Bihi O^ Naufah Vuhammad 
MunUOM Ali Khan v. Khan Alt Khan ('), and Mela Ham y. 
Frema{^)> In all these cases he asserts, stringency of proof 



(^) 71 P. R., 1905. (•) 189 P. B., 1882. 

(•) 108 P. B^ 1886. {•) 88 P. R., 1888. 

(•) S4 P. R., 1887. (») 86 P. B.^ 1897. 

(•) 107 P. ^, 1900, (•) 109 P, B^ 1900, 



196 ^viL judgments-No. 48. [ rbcobd 

was demanded, becanse both claimaDto— pre-emptor and sendee 
'—were neighbours and the plaintiff shoald show that his 
special kind of vicinage was superior. 

Gategorj (3) I need not comment upon. 

There is a certain plausibility about this suggestion that 
a neighbour of any kind — neighbour by contiguity or neigh- 
bour by mere proximity — should in a tract where pre-emption 
prevails, merely because of being a neighbour, be preferred 
to a complete stranger. But I think it is safer not to allow 
the suggestion to be applied to cases of proximity across a 
road as here. I would hold that, where the p1aintiff*8 house 
is separated from the house in suit by a road or lane, there 
even if the custom of pre-emption prevails in the Mohalla 
or town generally, there is no initial presumption that 
plaintiff has a right of pre-emption as against a stranger 
vendee, but plaintiff must prove by instanoes in the usual 
way that he has such a right. I am not called upon to lay 
down any rule to govern oases in which plaintiff's house 
is not across a road from but (say) back to back with 
that in dispute. I am not sore that in such a case Mr. 
Eamal-ud-din's suggestion would not be fully applicable, I 
confine my decision to the precise case now before us. 

The result is that the appeal is accepted and the suit dis- 
missed with costs throughout. 

Appeal allowed* 



No. 48. 

Before Mr. Jttatice Ghatterji, CLE., and Mr. Justice 
Johnstone. 

AOHHRD AND OTHERS,— (PuiNTiFfs),— APPELLANTS, 

APfSLLAn Qmi { Versus 

LABHU AND OTHERS,— (Depindants), -RESPONDENTS. 

Civil Appeal No. 1018 of 1906. 

Pre'9mption — Purchaser with right of pre emption eq%al to plaintijft 
a$80Ciating in the purchase persons with inferior right —Right of such pur' 
chaser to defeat pliintiffs^ claim -^ 

fJeZd, thit if a paroha^er liav^ing an eqnal right oF pre-emption Msooiatea 
with himself iu t^d parohase a p3r8^u with rights inferior to those of th^ 



April 1907. ] 



OIVIL JUDQMBMTS— No. 48. 19? 



pre-emptor, he ia not entitled to resist the claim of saeh pre-emp tor to en- 
force his rights even as to his share of the purchase. 

Ram Ifath v. Badri Narain (^), dissented from. 

Imam Din v. Nur Khan (•), Murad v. Jfine Khan (8), and Kesar 8ingh 
▼. Pim;a5 8ingh C*) followed. 

Further appeal from the decree of Major 0. 0. Beadon^ Divisional 
Judge, Hoshiarpur Division^ dated 2Sik May 1906. 

Sakh Dial, for appellants. 

Dharm Das, for respondents. 

The jadgment of the Coart was delivered bj— 

Johnstone, J.-* This was a suit for pre^^nption upon a sale 12^^ Jany, 1907. 
of land and houses to defendants 2 to 6 by defendant 1. 
It is settled that defendants 2 and 3 had eqaal rights of pre- 
emption with plaintiffs, bat that the rights of defendants 4 
to 6 were inferior. The property was sold for Rs. 4,000 
(figure in the deed) ; and it was stated in the deed that the 
shares of the vendees were these — 

Defendant 2 ,. ^ 

Defendant 3 ^ 

Defendants 4 to 6 ^ 

The first Court fonnd that plaintiffs conld preempt 
only the last share. Fixing the real value at Rs. 3,200 it 
gave plaintilEs a decree for possession of ^rd on payment into 
Oonrt by a certain date of ^rd of 4,000 or Rs. 1,066-10-8. 

On appeal the learned Divisional Judge came to the same 
general conclusion but fixed the value at Rs. 3,38 L from 
which sum he deducted Rupees 183 due to a mortgagee and 
not yet paid by the vendees. He thus arrived at the figure, 
R». 3,198, and directed that the sum to be paid in by 
plaintiffs for J rd of the property was Hs. 1,066. 

Plaintiffs appeal on the main question and claim the 
whole bargain. There is no longer any dispute as to price 
to be paid. 

After hearing arguments and consulting authorities we 
find in favour of plaintiffs appellants. On the one side we have 
three Division Bench rulings of this Oonrt, Imam Din v. Nmr 
Khan ('), Murad v. Mine Khan (»), and Kesar Singh v» Punjab 
Singh (*). In all of these the view put forward by plaintiffs 

" 0) 1.L.B.,XIXAIL, 148 f.B. <») 94 K R. 1895. 

(•) 10 P. B„ 1884. ( ) G6 P. £., 1896. 



] 98 ^I^I^ JUDGMENTS- No. 49. [ Bboobd 

is the one adopted. On the other side we have Baui Nath v. Badri 
Narain (*), and a single Jad^ roling, Civil Appeal 660 of 
1900, in which the previoas rulings of this Court were not 
even noticed. After carefully considering the arguments in 
the Allahabad ruling we find ourselves opposed to it. In our 
opinion the sale is one and indivisible, and, inasmaoh as defen- 
dants 2 and 3 have joined with themselves defendants 
4 to 6 as vendees, the latter having no rights equal to those of 
plaintiffs, we think, following the above quoted Division Bench 
rulings of this Court, that plaintiffs are entitled to take over 
the whole bargain. 

For these reasons we accept the Appeal and give plain- 
tiffs, in modification of the decree of the lower appellate 
Court, a decree for possession of the whole property in suit 
on payment into Court, within 2 months, of Rs. 3,198, 
Bs. 183 being still due to the aforesaid mortgagee. The 
defendants will pay plaintiffs' costs throughout, if the latter 
pay in the money in the time. If default is made in payment 
by plaintiffs, the suit will stand dismissed with costs. 



Appeal allowed. 



Appblultb Side. 



No. 49. 

Before Mr, Justice Johnstone and Mr. Justice Battigan. 

JAMNA DEVI,— (Defendant),- appellant, 

Versus 

MUL RAJ,— (Plaintiff),— RESPONDENT. 

Civil Appeal So. 875 of 1906. 

Hindu Law -^ Marriage ^Wif 6 8 conversion to Ulam—Diisjlution of marriage. 

Heldf that apostacy of ooe of the parties does not io the oaae of 
Uiodas per «e dissolve their^marriage, and a Hioda wife oaonot there- 
fore deprive her husbaod of the legal rights which accraed to him at 
marriage by simply renoanciog Hiadaiam in favour of Islam. 

Further appeal from the decree of H, Scott-Smith, Esquire ^ 
Divisional Judge, Rawalpindi Division, dated Ist May 1906. 

Fazl-i-HosaiD, for appellant. 
B. B. Sawhnej, for respondent. 

( ») I. L. K., XIX All., 148, F. B. 



Afeil 1907. ] OIVIL JUOaMENTS— Na 49. 199 



The facts of this case are folly set oat in the following 



Johnstone, J.— In this ease, Mai Raj, plaintifF, an Arora by 9th Jany, 1907. 
tribe and Hinda by religion, has bronght a sait against de- 
fendant 1, his wife, and defendant 2, a Mahammadan, 
for CQstody of the former. Defendant 2 denies that the lady 
is with him ; and defendant 1, while admitting her marriage 
to plaintifiF, states that she has embiaced Islam, that it is impos- 
sible for her, as a sincere Mnhammadan, to live with plaintifiF as 
a wife should live with a hasband, and that she has been crnelly 
treated ; and so asks that the sait be dismissed. 

The first Court absolved defendant 2 from all liability, 
and went on to hold that plaintifiE had not been guilty of any 
cruelty towards the lady such as would debar him fr6m claim- 
ing her company. Then the Court discussed the question 
whether the fact of her turning Mnhammadan is a bar to 
a suit like this, and in the end found against the plaintiff. 
On the strength of the ruling Mussammat Jawali y. Karam 
Singh (^), the Court ruled that the granting of such a decree 
as that prayed for is discretionary with the Court, that 
the woman is now a genuine Mnhammadan, that the hosband 
will stick at nothing to reconvert her and may even murder 
her, that as a Mnhammadan she cannot live with a Hindu 
hosband, and that for these reasons the lelief asked for must 
be refused. 

The learned Divisional Jodge, when the hosband appealed 
to him, took a different view. He thooght that the first 
Court's fears for the lady's safety were merely imaginary ; 
that she was undoubtedly the wife of the plaintiff and had 
never been ill-treated, and so must return to him. The puit 
having been decreed, the lady has filed a further appeal, 
and we have heard an elaborate argument on both sides of 
the case. 

The conclusion at which I have arrived is that the decree 
for custody must stand. My reasons are briefly these, that the 
marriage is admitted and is indissoluble, that, though the 
granting of decree is discretionary, that discretion must be 
exercised with due regard to the law and to equity and 
good conscience; that marriage and the rights and dutiea 
arising out of it being the very basis of the social fabric, 

0) 47P. «., 1893. 



20<^ CIVIL aUDOUiafTS-No. 40« [ BicoM» 

only very oog^nt reasons can justify any tampering with the 
institution or ignoring of those rights and duties; that it is 
against justice to allow a Hindu woman simply by changing 
her religJon to depriTO her husband of the rights he acquired 
at marriage; that in the present case plaintiff has done 
nothing which would warrant this Court in refusing him 
those rights ; that conjectures regarding how he may pos- 
sibly treat her if he gets her back, are not an appropriate 
basis fop a decision of such a suit as this ; that though 
no doubt the situation is an unpleasant one for defendant 
I, a» a sincere believer in Islam, the Court should not take 
this aspect of the case into account, inasmuch as the balance 
of justice is decidedly in favour of the husband, who has 
adhered to the faith he held at time of marriage, who has 
done no wrcng, and who simply asks for his natural and 
legal rights, rather than in favour of the wife, who has, by 
an act of her own, done against his wishes, created the 
difficulty and now desires to rob him of those right*. I 
may also Faj that in my opinion to decide in favour of the 
lady on facts such as we have in the present case woald 
render the Hindu wife virtually independent of her husband : 
whenever he and she had a difference of any kind, she could 
say she was a Muhammadan and so could emancipate herself 
from his coiiiiol. Such a stale of affairs mould lead to countless 
troubles. 

In one part of his argument the learned counsel for the 
plaintiff dealt with the case from the point of view of the strict 
ancient Hindu Law ; but I do not intend to follow him. It is 
enough for me that by Hindu Law a marriage is indissoluble. 
The Qovei-nn.ent of Bombay \. Ganga (^), and in the matter of 
Bam Kumari ('), the counsel for the lady admits this ; that 
marriage in all civilised systems of law implies the creation of 
rights and duties in the hosband and rights and duties in the 
wife; that in Hindu Law, as in all laws, the right of the 
husband is that his wife must live with him as a wife, if he so 
wishes and if he has not lost this right through some cause, 
imnsaoent in him or proceeding from him, calculated to render 
the enforcement of the right opposed to the principles of justice, 
equity and good oonscienoe. 

Mr. Fazl-i-Husain, for defendant I, began by arguing 
that this was a case of* conflict of laws, the man following 
Bindti Law and the womati Muhammadan Law, and thai 

(») /. L. B., IV Bom,, 880. ,(») / L, B., XVIU Oof., 264. 



A9uh iwr. ] oiTii# jDt)eiiBK«**ii*. 46; tOK 



tht law of the defendant slionM prevail (Mtifcati%f»o(i Stdick 
Y. Haji Ahmed (*), 2ndpa^a. of head^ote). I aia incHned to 
agree with Mr. Sawhaeji for plaintiff, that the oase is noi 
properly speaking one of confliot of laws ; and evenr if it is, 
it seems to me in keeping with joatice to hold, on the faata 
of the present oase, that law should so far as possible be 
applied whieh the parties were governed by at the time of 
the marriage. If Mnhammadan Law is applied the marriage 
i^ dissolved by the mere fact that the woman is a Mosalman 
and the man a Hindu : this is not denied. Bat it mvst be 
taken that at time of marriage the woman, marrying as a 
Hindoy knew and intended, as her husband did also, that the 
matriage could in no may T?hatever be dissolved. 1 do not 
think that the Knglish statutes, 21 Geo. Ill, Chap. 70, Sccti<n 
17 ; 4 Geo. IV, Chap. 71, Sections 7, 17, quoted at pages 5 
and 6 of West and Buhler's Digest of Bindu Law, Srd £dition| 
Volume I, and relied upon by Mr. Fad-i-Husain^ have really 
any bearing on such a case as the present. It follows, then, 
that the Hindu Law should not be thrown over in this case. 
It cannot be directly applied, foi it does not explicitly provide 
f( r such cases as the present, so far as I know, and thus we must 
fall back upon the well-known Section 5, Punjab Laws Act, 1872, 
and the rule of justice, equity and good conscience. That 
rule cannot be said to be followed in a case like this if we 
throw over the Hindu Law under which the parties 
were married and to all his rights under which plaintiff is 
still entitled. 

Beading to us the dicta and opinions to be found 
in Tagore's Law Lectures, 1870, p. 3, last para. Siromani's 
Hindu Law, pp. 39, 40, Banerjee's Hindu Law of Marri- 
age and Stridhan, £diuon 1896, p. 19, &o., d»., Mr. 
Fazl-i-Husain argued that, when a Hindu abjures his faith, 
he is ontside the pale of Hindu Law, which no longer 
governs him; and from this he deduced the contention that 
hisclienVs abjuring of the Hindn religion puts her outside 
that pale and so she cannot be subject to that law. This 
reasoning appears to me unsound. She mi^ be outside the 
pale of Hindu Law in the sense that she could not enforce 
rights accruing to her, or rather whieh she formerly had, 
under tbat law; but she cannot get rid o( her already 
existing liabilities and she cannot be pei milted to destroy 
her hnsbaod'a already acquired righ^, in this way. 



(») I. L. «., t Vom., 1. 



202 CIVIL JUDGIf ENTB-Na 49. [ Bboob» 

Mr. Fazl-i*HQ8ain then qaoting, as an indirect anthoritj, 
Sinam Mai v. The Admintstrator-Oenerai of Madras (*), and 
Banerjee's book mentioned above, pages 122, 123, suggested 
that, because an apostate from Hinduism cannot enforce 
coDJogal rights against the husband (or wife) who remains 
a Hindu, the conyerse proposition also holds good. (See also 
Ghose's Principles of Hindu Law, 2nd Edition, p. 694, 
line 2.) There is no authority for this, and for the reasons 
already given I reject the suggestion. ^ 

Next Mr. Fazl-i-Husain presses the point that, aft matters 
stand, his client cannot perform wifely duties towards plaintiff 
who is an orthodox Hindu. He cannot eat food cooked by 
her or let her touch his food or drink ; he cannot let her join 
him in any religious ceremony or act of worship, and so forth. 
(See Ohose's Principles of Hindu Law, p. 66^, opening sen- 
tences.) From this he argues that a decree for custody could 
be of no real nse to plaintiff except perhaps to give him an 
opportunity of forcing her to renounqe her new faith ; and 
he contends that to give a decree in this case is thus tantamonnt 
to laying it down that a Hindu woman Las no right to freedom 
of conscience and can never renounce Hinduism, whatever her 
real sentiments may be. I am not sore that we, sitting as a 
Court of Justice, need formally repote such an argument as 
this. It is sufficient for me to say that, if plaintiff is really 
an orthodox and conscientious Hindu, he will, until, if ever, 
his wife returns to the fold, simply keep ' her in some part of 
his house and try to persuade her to abjure her new faith ; or if 
he is not orthodox, he will try to persuade her to perform the 
functions of a wife, and will risk excommunication from his com- 
munion. In neither case would she, in law, have any grievance ; 
but if he ill-treats her, the Courts are open and she might have 
a cause of action for a separation. At present I can see 
no reason in all this for refusing him the decree he has 
asked for and has obtained. The above reasoning, in my 
opinion, disposes of all the arguments based on such statements 
of law as are to be found in Siromani's Book, p. 99, para. 
14, Narasimmiah, pp. 18 and 27, and Ranerji, pp. 186189. 

Some stress was laid by Mr. Fazl-i-Husain upon the 
dictum in Imam Din v. Hasan Bihi (*), to the effect that the 
conversion of a Muhammadan woman to Christianity operates 
to dissolve absolutely her marriage to her Muhammadan 
husband ; but I am unable to see how this helps his client. 



(>) /. L. R. Yin Mad., 169. (•) 85 P. B., 1906. 



April 1907. ] OIVIL J0DGMBNT8— No. 40. 208 

the HiDda Law being 60 entirely opposed to the Mahammadan 
in this matter. 

Only two more points call for remark. First, is there 
any reasonable ground to apprehend that defendant will be 
cruelly treated if she returns to her husband ? After carefully 
considering the evidence on the record I find myself unable 
to hold that there is any such ground. Past cruelty is not 
proved ; and as regards the future plaintiff merely says he 
will try to reconvert her. I cannot assume that this will involve 
cruelty ; if it does, the Courts are open. 

Secondly, it is suggested that the decree should be saddled 
with conditions. It is not explained precisely what conditions 
are claimed aud I do not see how the Court can frame any 
conditions which it could enforce. In my opinion we cannot 
rightly insert in the decree, for instance, that plaintiff must 
refrain from his marital privileges and must keep the lady 
as he would keep a sister ; or that he must not ask her to 
cook his food, if he should wish her to do so; or that be 
must not attempt to get her back to Hinduism. He must, of 
course, refrain from cruelty ; but that is understood in every 
decree for custody or restitution of conjugal rights. 

I have not discussed the views laid before us by Mr. 
Sawhney except indirectly, inasmuch as in my opinion the above 
exposition adequately disposes of the case. I would dismiss the 
appeal with costs. 

Rattiqan, J.— I entirely agree and have but little to add to 
ray learned brother's judgment. There are, however, a few 
observations which I would like to make as t e subject is one of # 

considerable importance. I am ^unable to accept the argument 
that the marriage tie between the parties was ipso facto dissolved 
when the appellant renounced Hinduism No doubt, from the 
Hindu point of view, she thereby suffered degradation : it may 
even be that a strictly orthodox Hindu could not, consistently 
with his religious scruples, thereafter consort with her. But, as 
remarked, in the case of Adminutrator-General of Madras v. Anun- 
dachari (» .according to Hindu Law, the degradation can be 
atoned for, and the convert re-admitted to her tUtus as a Hindu, 
if she hereafter renounces Islamism and performs the rights of 
expiation of her caste. But, however this may be, the great 
weight of authority is clear that apostaoy of one of the parties 

(>) /. L. B., 9 Mad , 470. 



does not m the case of Hivdas per se annul the marriage, 
(see the case above cited and Oovemment of Bombay t. 
Oanga (^), Bisheahur v. Mata Ohilam (*), In re MiUard (•), 
In re Bam Kumari (*), Snidari Letant v. PUambart 
Letani (•) Crown y. Muasammat Qulam Fatima (•). In support 
of the opposite view, Mr. Fazl-i-Hasain relied upon Rahm^d v, 
Baheyfi Bibi {^), mnd Sinammal v. ;4(2/iitiii>^ator-06n6ra2 0/ 
Madras (•), but us pointed out by the learned author of " Hindu 
Law of Marriage and Stridhan, Doctor Oooroo Das Banm^jee, 
these authorities are opposed to the cases above referred to, and 
cannot be accepted as correctly stating the law on this point. 
T might add that the learned author was himself one of the 
Judges who decided the case of In re Bam Kumari. 

I am also unable to accede to the proposition that in a case 
of this kind, the question at issue should be decided in aocordanee 
with the law which governs the defendant. The parties were 
originally both Hindus and their marriage was solemnised in 
accordance with the Hindu Law. The husband, the present 
plaintiff, is still a Hindu. Surely, nnder such circumstances it 
would be repugnant to equity and good conscience to hold that 
the rights which accrued to him under that law at the time of 
his marriage must be deemed to have been lost because his wife 
has subsequently renounced the Hindu religion and adopted a 
faith which forbids her from cohabiting with a Hindu husband P 
The case of in re Millard^ above cited, is a direct authority for 
holding that under such circumstances the rights of the husband 
cannot be regulated by the Muhammadan Law. And in this 
connection I would also refer to the remarks of Doctor Banerjee 
at page 28 of the work to which I have already made reference. 
^ He says : ** The importance ot the institution of marriage is too 
** well rocognised to require any comment. It is the sonixse of 
** every comfort from infancy to old age ; it is necessaty for the 
** preservation and well-being of our species ; it awakens and 
*' develops the best feelings of our nature ; it is the source of 
" important legal rights and obligations, and, in its higher forms, 
*^ it bais ten 'ed to raise the weaker half of the human race from 
" A state of humiliating servitude. To the Hindu, the importance 
" of marriage is heightened by the sanctions of religion. By no 
** peoj^e, says Sir J. Strange, is greater importance attached to 
** marriage than by the Hindus. In Hindu Law it is regarded 



(») I. L. K., IF., Bom,, 880. (») I. L. «., XKXtl CaL, 871. 

(•) 2 N. TT. P., 300. («) 32 P. «., 1870, Or. 

(») I. L. B., Z., Mai,, 218. (») 1 Nortons Leading Cas, 12. 

(*) I^ L. B„ XVIII Cai., 264. (•) I. L. B., Vill Mad., 169. 



Apbil 1907. J CIVIL JUDGMBNTS-Na 50. JjO§ 

" as of the ten sunskars or saoraments, necessary for regeneration 
** of men of the twice born classes and the only sacrament for 
" women and Sudras. " 

Mr. Fazl-i-Hasain in his able argument laid great stress 
on the hardship that would ensue if the appellant were compel* 
led, against her consoieDce, to return to cohabitation with her 
Hindu husband. I admit the hardship and I fully realise the 
unfortunate position in which the appellant is placed. Bat I 
cannot on this account refuse to grant the respondent the relief 
to which he is by law entitled. He has himself done nothing 
to forfeit those rights. He would be entitled, if he so wished, to 
''desert" his wife by leason of her apoftacy and under the 
personal law which must be taken to govern the case, he need 
do no more than allow her what is called a *' starving mainte- 
nance.** But if he prefers to enforce his marital rights, the Courts 
must, I conceive, give him their assistance. The position would 
be very different if the person who asked for relief of the kind 
now prayed for, happened to be the apostate spouse. In that 
case there is ample authority for holding that a decree for 
restitution of conjugal rights should be refused, (see Banerjee's 
*' Hindu Law of Marriage and Stridhan," at pages 122, 123). 
But in the present case it is the non-apost«te spouse who is 
asking for relief and I know of no authority which would justify 
us in refusing him the decree to which be is by law entitled in 
the absence of any fact disentitling him thereto. For these 
reasons and for the reasons given by my brother, I agree that 
the appeal should be dismissed, and the order of this Court is 
accordingly that the appeal is dismissed with costs. 

A}jpeal dismissed* 

Full Bench. 
No. 50. 

Before Mr. Justice Beid, Mr. Justice Chatterji, CLE., 
Mr. Justice Bobertsmi, Mr. Justice Battigan, and 
Mr. Justice Chitty, 

JODH NATH,— (Plaintiff),— APPELLANT 

^^^^^ f Rbfimnoi Sidb. 

SADHU RAM,— (Dbfbndant),— RESPONDENT. \ 

Civil Reference No. 76 of 1906. 
Chief Court — Jurisdiction of, to hear Civil Appeals transferred by Judicial 
Commissioner of North-Wesi frontier Province— Regulation Vll of IWl, 
S^iion 87 A. — ■ Punjab Courts Act, 1884. 



I 



206 OITIL JDDekflNTa^llo. so. [ Ikobd 



BM hj the FnU Benoh that l^ Obi«f OodH of tii« Punjab has, by 
▼irtvd of the proTiaioiiB of Seotion 87 A of the Nbrth-Weat Frontier 
Province Law and Jostice Begalation No. VII of 1901 as amended by 
Regulation I of 1906, no joriediotion as a Court of Oivtl Appeal to entertain 
hear and dedde any Civil appeal transferred to it f6r determination bj 
the Judicial Oomniinioner of the North. West Pitmtier Fkorinoe, 

Case transferred under Frontier Begtdaium No. VII of 1901 
as amended by Begulatton Na. I of 1906 by the Judicial Com- 
misrioner, North- West Frontier ProvineCf on 2Sth February 1908. 

This was a reference to a Fall Bench to determine 
whether the Chief Court of the Pnnjab has jurisdiction to 
entertain, bear an^ decide any Civil appeal transferred to 
it for determination by the Judicial Commissioner of the 
North- West Frontier Province by virtue of the Provisionii 
of Clause 87 A of the North-West Frontier Province Law 
and Justice Regulation No. YII of 190t as amended by 
Regulation No. I of 1906. 

The following opinions were recorded by the learned Judges 
constituting the Full Bench : — 
Ibth Oct. 1906* Rattioajt, J.— As I understand it» the question before 

the Full Bench is» whether the Chief Court of the Punjab 
has jurisdiction to entertain, hear and decide certain Civil 
appeals transfMred to it for determination by the Judicial Com- 
missioner of the North-West Frontier Province who, in this 
behalf, purports to act under the provisions of clause 87 A of the 
North-West Frontier Province Law and Justice Regulation 
No. VU of 1901 as amended by Regulation No. I of 1906. In my 
opinion it has not such jurisdiction. 

TfaaCbiaf Court of this Province was first constituted 
and its jurisdiction and power were conferred and defined 
by Act lY of 1866, which was an Aet passed by the Governor- 
General in Council at meeting! for the purpose of making 
laws and regmlations* As I shall presently point out, this 
anthoi'ity was an ezpension of the Gbvemor-General's executive 
council and was constituted by the Indian Councils Act, 1861, 
in supersession of the legislative body established under the 
Charter Act of 1833 (3 and 4 Will, lY C. 85). The 
official title given to this authority is cumbrous and for pur- 
poses of convenience and bievity I shall hereafter refer to it 
as the Governor^General in Legislative Council. By Section 
2 of the Act above mentioned, it was provided that the Chief 
Court was to consist of two or more Judges to be i4>pointcd 
by the Govemor«6eneral in CounciI| and that it was to ba 



Amil 1907. ] OIVIL J0DaMBflT8^M«. 10. Q()»^ 



*' 0^ )Mgbei9( Ooort of i^p^eti from the Oivil and Oriminal 
^^Co^rttt in the Pa^jabt" and, eabjeet to certain provisions, 
w«0 to be "the only Ooart exercising appellate jurisdiction 

^ in Such oases as are subject to appeal to the highest 

" Ciyil and Oriminal Court in the Ponjab by virtae of any 
" law or practice now in force or as shall become subject to 
" appeal to the Chief Court by virtue of any law hereafter 
*' made by the Governor-General in Council." 

By Section 1 of the said Act "Punjab" was defined to 
mean the territories for the time being under the Government 
of the Lieutenant-Governor of the Punjab and its Dependent 
ciee. Act IV of 1866 was repealed by Act XVII of 1877, 
Section 4 of this Later Act provided that besides the Courts 
established under any other enactment for the time being 
in force, there shall be eight grades of Courts, namely :— 

(1) the Chief Court, etc. 

The Chief Court thus re-constituted was to consist of 
three or more Judges to be appointed by the Goveruor-General 
in Council (Section 5) " and was to be deemed for the purposes 
" of all enactments for the time being in force to be the 
" highest Civil Court of appeal in the territories to which this 
" Act extends " (Section 14), or, in other words, " all the terri- 
" tories for the time being under the administration of the Liente- 
" nant Governor of the Punjab." Act XVII of 1877 was in its 
turn repealed by Act XVIII of 1884 which is the Act now 
in force. This Act " extends to the territories for the time 
<* being under the administration of the Lieutenant-Governor of 
'* the Punjab" (Section I (21), and Section 4 thereof provides 
that " there shall oontinne to be a Qhief Court, consisting of 
** three or more Judges who shall be appointed by the Governor- 
*' General in Council. Section 6 further enacts that such Chief 
" Court shall be deemed for the purposes of all enactments 
** for the time being in force to be the highest Civil Court of 
*' appeal in the territories to which this Act extends." 

Both the Act9 referred to above (t;^'^^., Act XVII of 1877 and 
Act XVm of 1884) were passed by the same authority which 
passed Act rV of 1866, i.e., to say, the Governor-General in 
Legislative Council. 

Having regard to the provisions of this Act, I opine 
that there can be no question as to the correctness of the 
following propositions, viz. :— • 

(1) that the Chief Court, as a Oivil Court of appeal, 
was constituted by the Governor-General in Legis- 
lative Council ; 



208 CIVIL JUDGMENTS— No. 50. [ Ekcobd 



(2)] that the po^er of ftppointisg the Judges of that 
Gonrt was by the said authority conferred upon 
''the Oovernor-GeDeral in Council," that is to 
say, the Goyemor-Oenexal in Execntive Conncil, 
by whom the power has since always been ozerdaed 

(3) that this Court was given jurisdiction as such Court 

of appeal in the territories for the time being 
under the nd ministration of the Lieutenant- 
Governor of the Punjab ; and 

(4) that no jcrisdiction wrb pfm'ited to this OonH by 

the auihority which constituted it, in places oat- 
side the aforesaid territories. 
In 1901 certain parts of the territories heretofore 
administered by the Lieutenant-Governor of the Punjab 
were by proclamation removed from such administration 
and were taken by the Governor-General in Council, 
with the sanction and approval of the Secretary of State 
for India in Council, under his immediate auth^ty and 
management, and a Chief Commissioner was appointed for 
the administration theieof "as a separate province" (Regu- 
lation No. VII of 1901, preamble). 

For this ''separate province" there was also appointed 
a Judicial Commissioner, and by clause 6 of the said 
Regulation it was provided as follows : — 

" Save as otherwise expressly provided by this Regulation 
" or by any other enactment for the time being in force, in 
"every enactmeat passed before the commencement of this 
" Regulation and continuing ' in force or lereby declared to 
" be in force in the North- West Frontier Province or in any 
"part thereof, and in every appointment, order, scheme, 
"rule, bye-law, noti6cation or form heretofore made or 
"issued thereunder, and for the purpose of the application 
" of such enactment, appointment, order, scheme, rule, bye-law, 
" notification or form to the said province — 

"(a) • • • • • ; 

"(6) • • * • * ; 

" (c) all references to the High Court or to the Chief 

"Court of the Punjab shall be construed as 

'^ referring to the Judicial Commissioner, save as 

" regards European British subjects or persons 

"jointly charged with European British Subjects 

" and as regards proceedings under the Indian 

^"Trustees Act, 1866; the Trustees and 



AWL 1907. ] CIVIL JUDGMBNTS-Nc. 60. 209 

'* Mortgagees, Power Act, 1866, the Indian Divorce 
** Act, 1869, the Inventions and Designs Act, 
" 1888, or Sections 57 to 60 of the Indian Stamp 
" Act, 1899, in respect of which proceedings the 
'' Chief Conrt of the Punjab shall be the High 
« Court." 

The Chief Court having under the Punjab Courts Act 
jurisdiction as a court of appeal only in such territories as 
are for the time being administered hj the Lieutenant-Gover- 
nor of the Punjab, it must necessarily follow that such Court 
ipso facto ceases to have jurisdiction (so far as the provisions 
of the said Aot are concerned) in any part of those territories 
which may be removed from the administration of the Lieutenant* 
Gbvemor of the Punjab and transferred to some other 
administration. By virtue of special provisions in some 
Acts, the jurisdiction of the Chief Court as a High 
Court may be retained even in such territories, but 
in all these cases such jurisdiction, which is of aa 
exceptional nature, is derived from the provisbn of those 
Acts which either per se confer that jurisdiction upon the Court 
or empower the Governor-General in Executive Council to 
declare that Court to be the High Court for the peculiar pur* 
poees of the Act in question (see, e.^., the deGnition of '* High 
Court** in the Criminal Procedure Code, the Indian Divorce 
Act, 1869, and in the Inventions and Designs Act, 1888). 
In the case under reference, the Chief Court has, for special 
purposes, been declared to be the High Conrt by the proviso 
inserted in Clause 26 of Regulation No. VII of 1901, and 
it seems to me immaterial whether in such case the declaration 
by the Governor-General in Executive Council is made by 
notification simplicitor or in a regulation made by him in 
his executive capacity. In either case, he derives his power 
to make such declaration from the authority of the Governor- 
General in Legislative Council. But apart from these special 
proceedings under what authority has the Chief Court juris- 
diction, or can it be empowered to exercise jurisdiction, as 
Court of 4>i7il Appeal in respect of cases from territories 
to which the provisions of the Punjab Courts Aot does not 
extend P The sole authority relied upon by the learned Govern- 
ment Advocate is clause 87 A. which was added to Regulation 
No. VII of 1901 by Regulation No. I of 1906. This clause 
runs as follows :— 

'< (1). When an appeal or an application for revision is pre- 
*' f erred to the Judicial Commissioner in respect of anj deorvt 



'*or order which was passed by him id another capacity 
** or in which he is personally interested, he shall, nnless all 
'' the parties reqoest bim to dispose of the case himself, transfer 
''it for disposal to the Chief Coart of the Punjab at Lahore, 
''or to snch officer as the Qovernor-General in Gonncil may 
" appoint to be an Additional Oommissioner for the disposal 
"therw>f. 

"(2). When an Additional Judicial Oommissioner is 
"appointed under sub-section (1) he shall, in dispofiing of 
" any case transferred to him thereunder, have all the powers 
" of the Judicial Commissioner under this Regulation." 

For the first remark I have to make with reference to 
this clause is that while the Judicial Commissioner is in 
express terms empowered to transfer the cases therein specified 
to the Chief Court for disposal, there is a signifidant omission 
to provide that the Chief Court shall have jurisdiction to 
entertain and dispose of these cases. This omission I think 
I am justified in regarding as significant not only for the 
reason to be presently given but also because sub-clause (2) 
of the clause in specific terms declares that when those 
cases are transferred to an Additional Judicial Commissioner 
the latter officer shall have all the powers of the Judicial Com- 
missioner under the Begulaticm to hear and decide such cases. 

Assuming, however, for the moment that it was intended that 
the Chief Court should in such oases have, and be bound to 
exercise a jurisdiction which does not ordinarily appertain to 
it, and that it must foe taken that such jurisdictiou is (or 
rather purports to be) conferred upon it by necessary impli- 
cation, the question arises whether such jurisdiction has been 
so conferred by competent authority. Obviously, and admit- 
tedly, this authority is not the authority which created the 
Chief Court and conferred upon it ito ordinary jurisdictional 
powers, and under these circumstances the Courts are not only 
competent, but bound, to inquire whether such extraordinary 
jurisdiction has been conferred by proper authority. 

"The Indian Legislature has powers expressly limited 
" by the Act of the Imperial Parliament which created it, and 
" it can, of oourse, do nothing beyond the limits which circnm- 
" scribe these powerp. The esteblished Conrte of Justice when 
"a question arises whether the prescribed limits have been 
"ei^ceeded) must, of necessity, determine that question, and the 
" Q0I7 wf^y in whiQ^ (bey can properly do eo is by looidng to 



imit WA. OIVID JUDGHIMfS^No. ». 



an 



*<Uie terms of the inatmment by which affirmatiTety tlie 
" legislative powers were created and by which regulatively 
" they are restricted" (per Lord Selbome, L. 0., in Queen r. 
Burah (1). 

The Regulation which purports to confer this extraordi- 
nary jurisdiction upon the Ohief Court was made, on the 
recommendation of the Chief Commissioner of the Nortii-West 
Frontier Province, by the Governor-General in Executive Council 
(see the preamble to the Regulation and clause 1 thereof). The 
question then is whether the Governor- General in Executive 
Council has, in purporting to confer the jurisdiction, acted 
within the limits which circumscribe his powers of legislation 
in such capacity, and in order to determine this question, it 
is necessary to look to the history of legislation in this country 
and to the terms of the Statute under the provisions of which 
the Regulation in question was made. , The office of Governor- 
General of Bengal was first creaced in 1773 when 
the Statute 13, G^rge 3, 0. 63 (commonly known as the first 
Regulating Act) was passed (Ilbert's Government of India, p. 
53). In the words of an eminent authority, '* the provisions 
*' of the Act of 1773 are obscure and defective as to the nature 
" and extent of the authority exercisable by the Governor-General 
" and his Council," and as to other matters, but it was clearly 
intended that the whole of ** the civil and military governments 
'< of the Presidency of Bengal and the ordinary management 
** and government of all the territorial acquisitions in the king- 
** dom of Bengal, Behar and Orissa " should be vested in the 
Qovemor-Ctoneral of Bengal and his Council of 4 members, 
which was also the creation of the said Act. 'fhe Governor- 
General and his Council were further given a general power 
ef oon<rol over the governments of the Presidencies of Bombay, 
Madras and Bencoola and the supremacy of the Bengal 
Presidency over the other presidencies was definitely declared 
(Ilbert's Government of India, p. 47). The stiid Statute 
provided that *'the Governor-General and Council were to 
'* have powers to make and issue such rules, ordinances, 
''and regulations for the good order and civil government 
*'of the Company's settlement at Fort William and the subor- 
*'dinate factories and places as should be deemed just and 
** reasonable and should not be repugnant to the laws of the 
" nation, and to set, impose, inflict and levy reasonable fines 

(0 L.B^d App. Ca$^98». 



J13 C4VIL JftDQIfUNTS-No. 80. t tocoRb 

^ and fiorfeitores for their breach. Bot these rales and regn- 
** latioDS ware not to be valid nntil dnly registered and publish- 
" ed in the Supreme Gonrt with the assent and approbation of 
** the Court, and thej might in effect be set aside by the King 
«*in Council.'* (Ibid pp. 50, 51). In 1781 a statute was 
passed (21 George 3, G. 70) with the object of settling some 
of the questions that had arisen out of the Act of 1773, and tbe 
Oovernor-General and Coundl were empowered " from time to 
*• time to frame regulations for the provincial courts andcouncils.' * 
Copies of these regulations were to be sent to the Court of 
Directors and the regulations might be disallowed or amended 
by the King in Council, but were to remain in force unless 
disallowed within two years. In the same year the Governor- 
General and Council ** issued a revised Code superseding all 
" former regulations. If these regulations were made under 
" the powers given by the Act of 1773 they ought to have been 
*' registered. But it does not appear that they were so 
" registered, and after the passing of the Act of 1781 the 
"Governor-General and Council preferred to act under the 
" powers which enabled them to legislate without any reference 
•* to the Supreme Court. However notwithstanding the limited 
" purpose for which the powers of 1781 were given, it was 
"under these powers that most of the regulation laws for 
** Bengal purported to be framed" (tbid pp. 61, 62). 

In 1793 a revised Code of regulations was published, 
and up to the year 1833 the only authorities which empowered 
the Governor-General and his Council to legislate were the 
wo statutes above referred to. "At that date " (*'.e. in 1833) 
"there were •* (according to CoweU's Tagore Lecture of 1872) 
"five different bodies of statute law in force in the empire. 
"First, there was the whole body of statute law existing, 
"so far as it was applicable, which was introduced by the 
"Charter of George 1, and which applied, at least, to the 
"presidency towns. Secondly, all English Acts subsequent 
" to that date which were expressly extended to any par of 
"India. Thirdly, the regulations of the Governor-Generars 
"Council which commence with the Revised Code of 1793 
"containing forty-eight regulations, all passed on the same 
"day (which embraced the result of twelve years' antecedent 
"legislation), and were continued down to the year 1834. 
"They only had force in the territories of Bengal. Fourthly, 
"the regulations of the Madras Council, which spread over 
"tte period of thirty-two years from 1802 to 1834, and w« 



Apbil 190f, ] OIVIL JUDGMBNT8— No. 50 2l3 

** in force in the presidency of Fort St. George. Fifthly, the 
" RegnlatioDS of the Bombay Code, which began with the 
** Revised Code of Mr. Moantstaart Elpinstone in 1827, comr 
" prising the results of 28 years' previous legislation and 
" were al«0 continued till 1834, having force and validity 
" in the Presidency of Fort St. David.*' 

"In 1833" (continues Mr. Cowell) "the attention of 
" Parliament was directed to three leading vices in the frame 
** of Indian Government The first was in the nature of the 
"Laws and Regulations ; the second was in the ill-defined 
"authority and power from which these various Laws and 
" Elegulations emanated, and the third was the anomalous 
"and sometimes conflicting judicatures by wh'ch the laws 
" were administered." As a result, the Charter Act of 1833 
(3 and 4 Will. IV, C 85) was passed, and under its provisions 
the superintendence, direction and control of the whole Civil and 
Military Government of the territorial possessions of the 
Company were vested in a Governor-General and Councillors 
who were to be styled "the Governor-General of India in 
"Council." This Council was increased by the addition of 
a fourth ordinary member who was not to be one of the 
Company's servants and whose duty was confined entirely 
to the subject of legislation, he having no power to sit or vote 
except at meetings for the purpose of making laws and regula- 
tions (Ilbert, ibid pp. 84, 85). Under the Act of 1833 the , 
legislative power of the Indian Government was vested ex- 
clusively in the said Gk)vernor-General of India in Council, 
and the four presidential Governments were merely authorized 
to submit to that authority " drafts or projects of any laws 
"or regulations which they might think expedient." Laws 
made by the Governor-General in Council under the powers 
given by the Act were to be subject to disallowance by the 
Court of Directors, acting under the Board of Control, but, 
when made, were to have effect as Acts of Parliament, and 
were not to require registration or publication in any Court 
of Justice. Such laws were known a« " Acts " and took the 
place of the " Regulations" made under the previous statutes 
{ibid pp. 86—89). 

It is thus in 1833 for the first time that the power of legis- 
lation was not confined exclusively to the Governor-Genei-al and 
his Executive Council, though w pointed out by Sir Barnes 
Peacocke in his minute, dated 3rd Novc mber 1859, the position of 
the foorth member of the Council was anomalous and unsatiB* 



214 CIVIL JUDGMENTS— No. 50. [ Bieoab 



factory as <* it was only by courtesy and not by right that he was 
" allowed to see the papers or correspondence or to be made ac- 
" qnainted with the tleliberations of Government upon any 
" subject not immediately connected with legislation ". Moreover, 
his ooDcnrrenoe might be wanting to a law and the law might 
notwithsianding be good and valid, and his absence from the 
Coancil would not vitiate the law (Ilbert, tbtd p. 54*3). Thus 
even after the enactment of the 3 and 4 Will. IV. G. 85, the 
power of legislation for all practical purposes remained with 
the Governor-General and his executive councillors. 

This system despite complaints regarding its drawbacks 
and incompleteness, continued in force till 1853 when the last 
of the Charter Acts (16 and 17 Vict., C. 95) was passed. This 
statute made a very considerable and important alteration in 
the machinery for Indian legislation. " The * fourth ' or 
'M^islative member of the Governor-General's Coancil was 
** placed in the same footing with the older or ordinary members 
" of the Council by being given a right to sit and vote at 
** executive meetings. At the same time the Council was 
'* enlarged for legislative purposes by the addition of legislative 
" members, of whom two were the Chief Justice of Bengal and 
'^ one other Supreme Court Judge, and the others were Com- 
*' pany's servants of 10 years' standing appointed by the several 
** local Governments. The result was that the Council oonstitut- 
** ed for legislative purposes under the Act of 1853 consisted 
** of 12 members, namely* — 

" The Governor-General, 
**The Commander-in-Chief, 

** The 4 ordinary members of the Governor-General's 
" Council, 

* ' The Chief Justice of Bengal , 
*' A puisne Judge, 

" Four representative members (paid) for Bengal, Madras, 
'* Bombay and the North- Western Provinces (Ilbert, 
•* p. 93)." 

In 1854 was passed the Act (17 and 18 Victoria, C 77), under 
the provisions of which the Governor-General of India in (Touncil 
is empowered, with the sanction of the proper authority, to 
take by proclamation under his immediate management and 
control any part of the territories of British India, and there- 
upon to give all necessary orders and directions respecting the 



April 1907. ] CIVIL JUDGMBNTS-No. 50. 215 

administratioa of that part or otherwise provide for its adminis- 
tration. It was in virtae of these powers that the territories 
now forming the NorLh-West Frontier Province were removed 
from the administration of the Lientenant-Governor of the 
Panjab, taken nnder the Governor-General in Oonncil and 
constituted a Chief Commissionership. 

The legislative machinery introduced by the Charter Act 
of 1853 was found in the course of time to be far from satis- 
factory, and in 1861 it was decided to provide a substitute 
for it. The then Secretary of State for India (Sir C. Wood) 
in his speech on the first reading of the Bill, which was ulti- 
mately passed as the Indian Councils Act, 1861 (24 and 25 
Victoria, C. 67) made the following observations ; — " Among the 
'* various proposals which have been made for the Government 
*'of India is one that the power of legislation should rest 
** entirely in the executive, but that this should be a consultative 
*' body ; that is that the Governor*General should assemble, from 
** time to time, a considerable number of persons, whose opinions 
" he should hear, but by whose opinions he should not be bound ; 
" and that he should himself consider and decide what measures 
** should be adopted. In the last session of Parliament, Lord 
*' Bnenborough developed a scheme approaching this in character 
*' in the House of Lords 7 but honorable gentlemen will see in the 
'* despatches which have been laid upon the table that both Lord 
" Canning considers this impoFsible, and all the members of his 
" Gbvomment, as well as all the members of the Indian Council, 
*' concur in the opinion that, in the present state of feeling in 
" India, it is quite impossible to revet t to a state of things in which 
" the Executive Qovemment alone legislated for the country. The 
" opposite extreme is the desire which is natural to Englishmen 
" wherever they be, that they should have a representative body 
*' to make the laws by which they are to be governed. I am sore, 
" however, that every one who considers the conditions of India 
** will see that it is utterly impossible to constitute such a 
" body in that country." 

As a fcompromise between the two extremes referred to by 
the Secretary of State in this speech, the following scheme was 
adopted. A fifth ordinary member was added to the Governor* _ 

Generars Executive Council, and the Council, for legislative 
purposes, " was reinforced by additional members, not less than 6 
" nor more than 12 in number, nominated by the Govemor>General 
'* and holding office for 2 years. Of these additional mcmberp, 



216 CIVIL JUDGMfiMT8--No. 50. [ Bioo&D 



*^ not less than one half were to be non-official, that is to saji 
** persons not in the Civil or Military services of the Crown. 
" Ooe Lieutenant-Governor of a province was also to be an 
" additional member whenever the Council held a legislative 
" sitting within his province" (Ilbert, p. 103). This statute 
is a landmark in the history of Indian legislation, for it 
was now for the first time that practical effect was given 
to the theory that the power of legislation should not rest 
with the executive authority. The constit ntion of the legislative 
machinery as now constituted is sufficient proof of this 
proposition, but there are in the provisions of the statate 
further proofs. In the first place there is the provision 
which validated the rules, laws and regulations made before 
the passing of the statute by the Governor-General in Council 
and other authorities otherwise than in conformity with the 
provisions of the Charter Acts. The very fact that it was 
deemed necessary to validate these ** laws " shows that the Gov- 
eroor-Gbneral in Executive Council had, or was supposed to 
have had, no power to legislate otherwise than in strict 
accordance with the provisions of the statute which conferred 
powers of legislation npon him in that capacity. But while 
it was provided that ordinarily legislation should for the 
future be effected only by the Governor-General in Legislative 
CouT cil, it was realised that m times of emergency it might 
be necessary to legislate in a more summary manner, and 
it was accordingly provided (by Section 23 of the said Statute) 
that " the Governor-General may in cases of emergency make 
'* and promulgate ordinaoces for the peace and good Govern- 
*• ment of Britiph Indiaor any pait thereof, and any ordinance 
'* so made hsp, for such period not exceeding six months from 
*' its promulgation as may be declared in the notification, the 
" like force of law to a law made by the Governor- General 
** in Council at a legislative meeting ; but the power of making 
" ordinances under this section is subject to the like restric- 
** tion as the power of making laws at legislative meetings ; 
*' and any ordinance made under this section is subject to 
^^ the like disallowance as a law passed at a legislative meeting, 
" and may be controlled or superseded by any such law." 
The power thus conferred is of a roost exceptional character, and, 
according to the despatch of the Secretary of State, should be 
exercised only on urgent occasions. 

From the provisions of the Indian Councils Act of 1861 
it is, I think, clear that, exce(>t for very special and most 



April 1907. ] ClYIIi JUDGMENTS— Ka 60. .317 



exoeptioDal purposee, the power of legislation, origiDally vested 
in the Execative anthoritieo, has heen transferred to a body 
which is in eonstitntion entirely distinct from the Governor-^ 
General in Ezecntive Council. In some very important parti- 
culars these provisions have been considerably modiOed by the 
Indian Conncils Act of 1892 (55 and 56 Victoria, C. U), bnt 
for the porposes nnder reference these modiGoations are not 
relevant and the general proposition is trne that the power 
of the Execntive Council of the Governor* General to legislate 
is now extremely circnmscribed and very strictly defined. Bnt 
in 1870 farther powers of legislation were, under specified 
circnmstances, conferred upon the Governor-General in Conncil. 
It was found as a matter of experience that legislation in the 
ordinary manner was extremely diflScult, if not impracticable 
in the case of new and hachcard territories acquired by the Crown, 
and upon the suggestion of Sir H. S. Maine, the then legal 
member of Council, a Ftatute was passed (33 and 34 Victoria, 
C. 3) which for this purpose and to this extent restored to the 
Governor-Geneial in Executive Council the summary power 
of. legislation originally possessed by him in that capacity. 
This statute, which was enacted " with the object of providing 
" a more summary legislative procedure for the more backward 
*' parts of British India," (llbert 214) provides as follows 
(Sections 1 and 2) : "Every Governor of a Presidency in Council, 
** Lieutenant-Governor or Chief Ccmmissiuner, whether the 
" Governorship or Lieutenant-Governorship or Chief Com- 
" missionership be now in existence or may hereafter be 
** established, shall have power to pre pose to the Gk>vernpr- 
" General in Council drafts of any regulations, together with 
" the reasons for proposing the same, fc»r the peace and govern- 
" ment of any part or parts of the territories under his goyem- 
** ment or administration to which the Secretary of State for 
" India shall, from time to time, by resolutions in Council, 
" declare the provisions of this pection to be applicable from any 
" date to be fixed in such resolution." 

**And the Governor-General in Council shall take anch 
'* drnft and reasons into consideration ; and when any such draft 
** shall have been appioved of by the Governor-General in 
" Council, it shall be published in the Gazette of India and in 
"the local Gazette, and shall thereupon have the liVe force of 
" law and be subject to the like disallowances as if it had h«en 
"made by the Governor-General of India ii^ Council a| a 
" meeting for the |)urpo6es of making Igw^ and leguli^iiei^B.^ 



Jllg CIVIL JUDGMKMTS-No. 60. [ Ricoso 



It is nnder the proviBions of this stfttnto that Regalation 
No. I of 19G6, which adds clause 87 A to Begolation No. VII 
of 1901, purports to have been made. Id my humble opinion, 
this clause, if it waR intended to confer jurisdiction on the Chief 
Court in respect of the cases therein specified, is tdtra viret. 
The statate has been declared by the Secretary of State for 
India in Council applicable to certain districts which are now in- 
eluded in the North-West Frontier Province (pee Notification No. 
2101, dated 2nd December 1870), but it has not been declared by 
such authority to be applicable to the Punjab. Cleariy, 
therefore, under its provisions direct action coold not be 
taken as regards persons, bodies or things in the 
Punjab. Equally clearly the Chief Commissioner of the 
North-West Frontier Province has no power of his own authority 
to confer jurisdiction extra-territorially on the Chief Court of the 
Punjab which is situate beyond the limits of the territories under 
his administration. And it was, no doubt, for this reason that 
the *' draft" submitted by him to the Ooyemor-General in 
Oonnoil (which said draft the Gtovemor-General has been given 
no power to amend) contained no provision conferring buch 
jurisdiction on the Chief Court. It was argued, however, that 
inasmuch as the draft regulation has been approved of by the 
Governor-General in Executive Council, the Chief Court must 
be taken by necessary implication, to have been given this 
extraordinary and extra-territorial jurisdiction, 1 confess 1 fail to 
follow the argument. The statate, under the provisions of which 
Regulation No. I of 1906 was made, does not apply to the 
Punjab. Its application is strictly and expressly limited to such 
places as the Secretary of State shall, from time to time, by resolu- 
tion in Council, declare its provisions to be applicable, and it has 
not been so declared applicable to this province. Farther, the 
powers of legislation possessed by the anthority which made the 
Regulation (i.e., to say, the Grovernor-General in Execative Coancil) 
are extremely circumscribed and very narrowly limited and in 
order to be intra vires and valid a legislative measure enacted 
by that authority must fall clearly within those powers. As 
I have endeavoured to show by the summary above set out, there 
is now no general power of legislation vested in the Governor- 
General in Executive Council ; and there is in this respect a very 
marked distinction between the powers possessed by the 
Gtovernor-General in Legislative Council and the powers 
possessed by him in Executive Council. In this connection 
I might, for examplci refer to Sections 3| 4 and 6 of another 



Afeil 1907. ] CIVIL JUDGMBNTS-N<k 60. f|^ 

statute (28 and 29 Victoria, C. 18). Under .those provisions 
the Qovemor-General in Bxecntlve Council is, under certain 
conditions, empowered by order to alter the local limits of 
the jurisdiction of any High Conrt, but he can do so only 
by transferring any territory or place from the jurisdiction 
of one High Court to the jurisdiction of any other High Court. 
It is expressly added, howeyer, that nothing in these pro- 
visions is to affect any power of the Governor-General in 
Council in Legislative meetings, the proviso making it clear 
that even in this particular matter the latter powers are far 
wider and more general than the powers conferred by 
the statute on the Governor-General in Executive Council. 

In my opinion, then, the approval by the Governor- 
General in Executive Council of the draft submitted to him 
under the provisions of 33 and 34 Victoria, C. 3, cannot give 
to the Chief Court a jurisdiction which it was not competent 
for the Chief Commissioner himself to give the Court, either 
by express provision in the draft or by necessary implication 
from its other provisions. Of ooorse within the limits of 
the territories to which the statute (33 and 34 Victoria, C. 3) 
has been duly declared to be applicablci a draft approved 
by the Gbvernor-General in Council has, under the provisions 
of the statute, liVe force of law as if it had been made by the 
Goveroor-Geueral in Legislative Council, but J cannot read these 
words as meaning that the Gk>vernor-General m Executive Coun- 
cil can, by giving his approval to a draft made under the statute, 
legislate in respect of persons, bodies or things outside those 
limits as effectually as if the measure had been one 
passed by the Governor-General at a meeting of the Council 
for the purpose of making laws and regulations. 

The learned Government Advocate contended that clause 
87 A of the Regulation under consideration does not in 
reality affect the Punjab as it merely provides for the disposal 
of cases sent to the Chief Court from the North- West Frontier 
Province. But I venture to think that this argument isfallacions, 
for if the Chief Court has in reality no jurisdiction under the 
clause to entertain these cases, it is obvious that the clause 
in purporting to give such jurisdiction legislates in respect of a 
corporate body which is not subject to the Chief Commissioner 
of the North- West Frontier Province. 

Summarising my argument, I am of opinion that the 
question referred to the Full Bench should be answered in the 



•fl^ oivtL judgments-No. so. I EicoRb^ 

]i6gatiTe for the following reasons :— • 

(1) Apart from certain special proceedings which are 
otherwise duly provided for, the Chief Conrt, as a 
Court of appeal in Civil cases, has jarisdiction under 
its Constitutive Act only within the territories which 
are for the time being under the administration of 
the Lieutenant-Governor of the Punjab ; 

(2) the cases transferred to the Chief Court for disposal 

by the Judicial Commissioner of the North-West 
Frontier Province are cases which under ordinary 
oiroumstanoes the Chief Court would admittedly have 
no jurisdiction to entertain and decide ; 

(3) there is in Regulation No. 1 of 1906 and in Regulation 
No. VII of 1901, no express provision to the effect 
that the Chief Court shall have, or be compelled to 
exercise, jurisdiction in such oases ; 

(4) if by necessary implication, clause 87 A (added to 
Regulation VII of 1901) can be taken to mean that 
jurisdiction in such oases is conferred on the Chief 
Court, and that the Chief Court is able in these cases 
to exercise such jurisdiction, the clause is in my 
opinion tdtra vires inasmuch as it was made 
under the provisions of a- statute which is not in force 
in, and has no applicability to, the territories for the 
time being under the administration of the 
Lieutenant-Governor of the Punjab. 

The Chief Court's jurisdiction as a Court of Civil Appeal 
has been defined by its Constitutive Act, and in respect of 
certain special proceedings this jurisdiction has been enlarged 
by Acts emanating from the same authority which constituted 
the Court and , defined its jurisdictional limits. It has no 
other jurisdictaon as such Court of appeal, and I cannot 
agree that this jurisdiction can be extended extra- territorially 
hf a Bcfgnlation made under a statute which is not in 
foroe in the Province in which the Court is situate and by 
aa authority whose powers of legislation are exceptional, 
spedial and strictly limited under that statute. 

I Wtruld therefore reply to the reference that the Chief 
Court has no jurisdiction to entertain and decide the cases 
referred to it by the Judicial Commissioner of the North-West 
Frontier Province. 



Afiit 1907. 3 OIVIL JODGMBNTS-^fo. 66, 22l 

BxiDf J.— I conoar in the reaaoas and oonolasions ;^oorded ••^^^ Oct. 1906. 
lij my brother Aattigan and in his reply to the reference. 
Xithongh the Judges of this Court are individaally subject 
to the orders of the Governor-General in Ezeoutive Council 
the jurisdiction of the Court, as a body, can, in my opinion, 
1^ extended or diminished by order only o{ the authority 
wluch constituted it, the Governor-General in Legislative 
Oonncil. 

Chattibji, J.— .1 have carefully perused the exhaustiise Hth Nov. 1906. 
judgment of my learned brother and on the whole agree 
wim liis couelusions. I have come to this opinion not without 
adiifb hesitation for the point before the Court is one of 
considerable difficulty and obscurity, and with some reluctance 
M Me eAeoi of oor decision will be to throw doubt on the 
validity ct soiie of the legislation of the same character by ^ 

the Government of India. 

Nevertheless I feel that it is hardly possible for us .1-1 

to rerist the reasoning of my learned brother that the Chief 
Court as a corporate body or legal entity has its powers 
as a Court of Civil Appeal strictly limited and defined by 
iUConstituUve Act XVIII of 1884, and that its jurisdiction 
as snch Court cannot be extended or modified except by an 
Aet of the Legislature. I consider that the Conrt does not 
exist as a Conrt of Civil Appeal except under the Act. 
The expression '< Ohief Conrt '* in Section 87 A 
of Beg^dMidn YII of 1906 m^ans of doulrso the . Court 
as a legal body and not the collection of individualJudges ' ^.~ _ ...^ 
who are its members. The jurisdiction purporting to be con- 
ferred by the itegulation Ts moreover not general jurisdiction or 
jurisdiction over a specified class of cases concurrent with 
that of the Judicial Commissioner of the North-West Frontier 
rrovihoe, tint jurisdiction over particular.ca^es on the happening 
of a certain contingency and is conferred by . the Act of the 
Judicial Commissioner and is dependent on his pleasure for' 
ai I Mad' Smion 67 A he has the power of transfer to the 
Chief Court even if an Additional Jndicial Commissioner is 
appointed by the Go vemor43eneral in Council. 

<}ki«ser (9i ojt Hbe seoticm declares that when an Addi- 
tions! Judie^bl ^Commissioner is appointed^ he shall exercise,. 
in respect of the cases transferred all the powers of the 
Judicial Commissioner under the Etegalation, but there is no . 
9orresp9nding clause empdwering the: Chief O^act to dtsp^js 



OITIL JUOGMEMTS— No. 61. ( BaqoftD 



^ dl inoh oases. It is doabtfnl therefore whether the Chief 
Court would in ordinary oircumstanees be held to have the 
power conferred on it by implioation. But when we oonsider 
that the Court is absolutely inoompeient to try any Civil 
Appeal not arising within the territories of the Lieutenant- 
Governor of the Punjab for the time being and that, its 
Conatitntive Act cannot be affected by legislation falling 
under a different category and enacted by a wholly different 
authority, the doubt appears, in my opinion, to be much 
enhanced. 

For these and the other reasons given by Mr. Justice 
Battigan T oonour in the reply he proposes to give on the ques- 
tion before the Full Benoh. 

R0BBRT8OM, J.— After very careful oonsideratiim and at 
fiist some donbt, I concur in the view expressed by my brother 
Battigan 

l^h Nov* 1906. Chitjt, J.— I concur in the judgment of my brother 

Rattigan and in the reply proposed to be g^ven to the question 
before us. 



No. 51. 

Before Mr. Justice Johnstone and Mr. Justice Battigan. 
UARJALLU MAL,— (Dependant),— APPELLANT, 
AmtUTi Sim. ^ Versus 

NATHU RAM,— (Plaiktiff),— RBSPOHDBNT, 

Civil Appeal No. 230 of 1905. 

Onstom'^PrS'fmption'^Pre'Smption of smiitence of right in a town in 
rsspsct to agrieuUural land asssssed to land rsvtnns^Una, Hoshiarpwr 
JHstriet^Pwijah Lam Act, 1872, Sections 10, 11, 12. 

BM that th« custom of pre-emption oannot be preenmed to •zist in 
Una, Dittriot Hotblarpor, inumach as it is a town and not a yillsffeb an4 
that thers can be no pretomption as to tha ezisienoe of a oostom of prt- ' 
emption in a town ereo in respect to assessed and cultivated land 

Further appeal from the decree af Major Q. 0. Beadon, 
Divisional Judge^ Hoshiarpur Division^ dated I3th Fehruary 1005. 

Shadi Lal| for appellant. . 

8btlvertoO| fpr reepondenk 



i>m» 1907. ] CIVIL JUOaMBNTB-No. 61. ^^ 

_ 

The facts of this case appear from the following judgment :— 

JoHNSTOMB, J.— In this case it appears that Hira Singh and 9fh Jany. 1907. 
Mossamraat Gdab Devi sold 14 kanals of land to Harjallu Mai 
for Bs. 620. Nathu Bam has sued for pre-emption. The land is 
within the limits of Una Municipality in the Hoshiarpur District. 
It is agricultural, ue.^ culturable land and is assessed to hknd 
reyenue^ Nathu Bam claims on the ground that the custom of 
pre-emption prevails, and that his rights are superior to the 
yendee's. Other questions also arose in the first Court, such as 
the application of the Punjab Alienation of Land Act ; and in the 
end the first Court, assuming that the custom of pre-emption did 
prevail, held that yendee, inasmuch as, in the opinion of the 
Court, he did, at time of sale in suit, own agricultural land in 
Ona, was as much a proprietor in Una as plaintiff and so 
dismiss ed the suit, saying the right of yendee was as good as 
the right of plaintiff. 

The learned Diyisional Judge, also assumiag that the 
cufitom of pre-emption must be presumed to exist, inasmuch as 
the land is agticultural land, found that at date of sale in suit 
the yendee was not a proprietor of agricultural land in Una. 
He therefore found for plaintiff on the main question and going 
into the questions of price and market yalue, finally gave 
plaintiS a decree conditional on payment of Bs. 250-4-0 down, 
the land being subject to a mortgage of Bs. 369-12-0 in addition, 
total Ba.< 



Vendee defendant has appealed, and the learned Judge 
before whom the case came in Chambers has referred it to a 
Diviaion Bench. 

Thefiist question is whether in such a place as UniTthe 
custom of pre-emption should be presumed to exist. The distinc- 
tion drawn in the Punjab Laws Act, 1872, in this connection is not 
between agricultural land and non*agrioultural land but between 
land "^ in a yillage" and laud '* in a town *'. This seems to have 
been lost sight of in the Courts below. Even as regards sites in 
the abadtoi^ " village" the custom of pre-emption is presumed to 
exist: cf. meaning of *' land *• in pre-emption sections of Punjab 
Laws Act, as explained in Hatdar and others y. lihtoar Bat and 
o^Aer^O). Equally in a "town," even as regards assessed and 
ottltivated land the custom is not to he presumed, but must 
be proved. 



(0 82 ?. a, 190«, 



224 CIVIL JUDGMBNTS-No. 51. [ Raooftii 

Uua became a Mauioipalily in 1874. It ae^joifit ^vl^^ ta 
have had between 4,000 and 5,000 inhabitants. We are told bj 
Mr. Shelverton, and this has not been denied, that there h in 
Uha, though not within the limits of the MnnicipaUty, an area 
of some 700 ghumaos of agricnltaral land assessed to land 
revenae. There is a description of the place ?rith an account of 
its history in the Revised (1904) Ghtzetteerof the Hoshiarpnr 
District, of the facts stated in which we may, I tfainlr, take 
judicial notice, see pages 24. 63, 227, and 228. Itwas founded 
by the great-great-grandfather of the present Bedi. The 
writer of the Gazetteer calls it a ^' town ** and says it ha^ one 
main street of shops, mostly bnilt of masonry, the remaining " 
bouses being chiefly of mud. ** A fine flight of stone steps leads 
''down to a stream on the east. Una used to be the emporium 
'* for the hills of all articles of commerce : now, however, much of 
" the traflSc passes through the town without breaking bulk." 
The cause of this 'is said to be the increase of shops in the hilh 
and the practice of dealing direct with Amrit^. 

I know of no definition of ** town " as opposed to " village^* ; 
but 1 am inclined to call Una a town. Mr. Sfaelverton suggests 
that it was a village once, and that it ia for the other sidi to 
show how and at what stage it became a town. In my opinion 
it was certainly already a town when it was an emporium for 
the trade of the bills years ago ; and I cannot see that it has . 
ceased to be a town because trade or certain kinds of trade may 
have diminished in volume, especially as the population has kept ' 
up (it is now 4)746) see page 24 of OazQtter and ^viidei^^lj ^ l^urge 
p^t of the population is non-agnculturaL 

The custom of pre-emption must therefore be proved to eiist, 
if plaiptifE is to have his decree. But it h^a not. h^^^ Pf^^^ 
to exist. Indeed, everything is against the all€^t|pn .thj|^^ it ., 
exists. The sales, of land have been v^ numerous— .oyer^ 5Q, , 
admittedly^^there are said to have been only two pijceei^]}^^, 
suits, and not a single suit has been successfully brqugl^^ v^]^, 
regard to land within municipal limits; and as far baok as 1873i, 
in a suit, Jangi v. Mussammat Ram Devi, decided on, 9th ^, 
June 1873 by the Deputy Commissioner (also, no doubts Efistciot, 
Judge) of the District, it was stated that no custom of pre^epip? 
tion exists in Una. 

I might also point out that, inasmuch as vendee defendani • 
owns houses in Una uith their sttee since 1872 and 1878 as see - 
deed of sale and auction certificatr on the file and inasmucll as 



imt 1907. 1 omL,*Dnpiqpj;ijb-N?. «. 



** bn^ ** in the pre-emption law of 1872 mentis Uod in thiQ diofbioQr 
arj sense (Hatdor and other$ y. Miftar i>aA a»<2 athv9 0)* 
defendant vendee is in as good a position as regards pre-emption 
in niia as pUintiff, even if we take it tbat Una is a village and 
that the custom of preemption pr^vi^Is., I agree with the learned 
Divisional Jodge that defendant vendee was not owner of 
o^rMiUiirs^landin Ifna when the sale in sait was eilbeted; bat 
h^.ii^Mi. o^rnai;, of "le^-" It is not. ho]iieyec» n^onssnry ta 
insist ipq^.tij^iil^ 

Mr. Shadi Lai has referred ns to the peonliaf . and sppdal 
cases of Jahan-nnma« a suburb of Delhi, Ankar Lai v. Baij 
Nath (^) and Katam Ilahi v. Bahna Mai (*) ; of Ludfaiana 
Kadir Bakhsh v. Ofiulam (*) ; o£ Jnitandiir <avU App^a02 of 
1905) and so forth; but it is unnecessary to oonsi^er them. 

I wou)^ np^c^ti th^ ftPPM? on the gironnds that U-na is a 
tc|^,,thf|^cu9tipmv.<rf pD^-emntion camioi be presumed to prevail 
ii^it^a|i^,,th^tBQ^qQh, cqistoai h^. been, proved a and J wooldj 
dismi^ plaintiffs suit with, OQ^ts thjcpq^out'. Oivil Bevisiau 
457 of 1905, hearj^ al^pg;^ w\th ;thifl,,.»aoeeft*l^on eiMMjU^ 
s^m^rc^ipd. 

E^fflQ^, J.— I agnse. The judgment in Js&uia?* Av v. 9th Jany. 1907. 
Dim Chand (^) iaa fuvtber auUboritfy.in support o£>tbe< view 
talpsn in ^a^dar and otheisi v.. lehwar Da$ and otkara as to., the 
m^^iog^i of ''kMid*' and " lafidoiraer " ia Seettan.l2* of) tho 
Punjab Lsjvs.Aoj^ Tb« appcvriis aooeptedand pkintiCnKsnlt 
disynisifi^ tW^tb.oost» threugbout. 

Appeal aUtfwed, 

Ho. 63. 

SOHAK iSINQH^- (DMNiDABi),^-Pia:iTIOiriBB, 

yertUB 

JAHANDAD KHAN,-(PLAumFv),-BESPONDBI!IT. 

Miscellaneous No,. 188 of 1906. 

Asgp^. to Privy OoiMUdl—iff^ from a% ord$r qf r«jaafHl— fV'iHil 
decree— Civil Profiedure Codf, lB62^8ecUQn S95, 

HM, that an order under Seotioo 669 of t|i0,Oods of CItU Pn>osaoK9 
remanding a case to be tried on merjts is not a final decree .^itfain 



ArriLtATi BlDM. 



CO 22 P. B., 19P6. (•) 21 K R, 1900. 

{*>mP.Br,\m. ^ m* P. «.,.18e7* 



Jf2(t' CIVIL JtJDGlrt)KW-No. 82. [ BkjoUd' 



tlM ueanuig of clause (a) of Seotion 595 and tfierefore no appeal lies from 
Mich an order to the Privy GouDcil. ^ 

Tetley t. Jai Shankar (»), Ha6»b.iiH-nM«a v. Munaioar-un-nissa (»), Aben 
8ha 8aUt Ali v. Casairao Baha 8ah$h Holkar (»), and Mahant Ishvargar 
Budhgar v. Candaaama Amar Singh (*), followed. 

Sayad Mazhar Hutsain v. Museamfnat Bodha Bihi (•), distingaiahed. 

Application for leave to appeal to ^e Privy Ooundl from a decree of 
the Chief Court of the Punjab, dated 27th Bebtuary 1906. 

Ishwar Das, for petitioner. 

M. S. Bhagat, for respcmdent. 

Tbe jadgment of the Goort was delivered by 

16ft Fehy. 1907. Johnstone, J.— This is an application for leave to appeal to 

the Privy Council, soch an application can only be granted 
if it falls under one of the clauses of Section 595, Oivil 
Procedure Code. In this case this Court, holding that the Court 
below had decided the suit on a preliminary point (t^., 
locus 8tandi)f reversed the finding on that point as erroneous 
and passed an order of remand under Section 662, Civil 
Procedure Code. The " value " here is soffioient to warrant 
an appeal under clause (o) of Section 595 read with Section 596 ; 
and the teal question therefore is whether the order passed by 
us can be sud to be a final decree, see Section 695, clause (a). 
llr« M. S. Bhagat on behalf of plaintiff urges that it is not 
final decree. It is certainly a " decree "^ for the purposes of 
Chapter XLVof the Code— see Section 594 ; but we hesitate to 
call it a final decree. It does not dispose of the ease ; and in 
Tetley y. Jai Shankar i^)^ Habib-un-nissa v. Munawar^un^nissa (*), 
Aben 8ha Sabit Ali v. Oassirao Baha Sahib Holkar (*), and 
Mahant hhvargar Budhgar v. Candasama Amar Singh (*), such 
an order has been treated and spoken of as little mora than 
an isterlocntory order. In Sayid Mazhar Hussain v. Mussam/inat 

* SodhaBibi (^)y an appeal to the Privy Council was allowed 

against a remand order under Section 562, Civil Procedure 
Code ; but this was because it was found that the order 
really disposed of the whole case and thai the reman4 should 
not have been so made. If the final decision is against 
|>etitioDers in this country they can still, in appealing to 
the Privy Council, ask that tribunal, to take up the question 



a 



(*) /. L, B^ I Ml., 7ae. (•) /. I. fin FI Bom^ 860. 

(•) /. n a, tXr All., 689. (•) /. I. Ru Vm Bom., 648. 

(•) J. r. *., XF/ZJl/, U8. 



Ann 1907. ] 0;TIL JUPAHBNTS-Jfro. 58. f^^ 

^ ,- _ _ - J . j-i — I ■ • ■ * 

ot locus danitf whioh alone has so far been dcicided against 
them. Therefore, we also think that we should not grant 
a certificate under olanse (c), inasmaoh as petitioners have 
in onr opinion another remedy much more oonvenient for 
all parties, and farther beoaose they may snooeed in their 
oase on the merits, in this oonntry, in which cironmstanoes 
an appeal now apon onr order wonld be a mere waste o^ 
noney. 

Petition refused with costs. 

AppUecUton dtsmitsedi 



ArfttUTS ina 



No. 53. 

Before Mr. Justice Beid. 
SHAHABAIi SIUH AND OTHERS, -(Dbfiniuhts),— 
APPELLANTS, 

Versus 

QANESH DAS AND ANOTHER,— (Plaintiffs),— 

RESPONDENTS. 

Oiyil Appeal No. 1018 of 1904. 

Ahand<mment of land^Sait to recover poB8es8ion'^Ah8entU''Adver9S 
poMestion, 

Beldf that mere noo-oocupation and non-oaltiTation of ancaltiirable 
land fbr a long period does not, in the absence of a moti?e or eyidenoe 
of intondon to abandon or of adTerse poMession for the statutory 
period, coosfitate abandonment. 

Further appeal from t\e decree of W. A. Harris^ Bsqfrire^ 
Dimsional Judge, Bhahpur Division, dated 9th August 1904. 
Muhammad Shafi, for appellants. 
Pestonji Dadabhai and Nanak Chand, for respondents. 
The judgment of the learned Judge was as follows :— 
Reid, J.-The facts are stated in the judgments of the ^^^ ^^ ^^^ 
Oourfs below : — 

1 see no reason for interference. The vendor's father, (tul 

Shah, certainly acquired the land in suit on a compromise of 

the suit between him and Qhulam Shali, ancestor of the 

appellanis in 1855, and in 1856 it was consequently entered 

in the name of Gul Shah at settlement. 

In 1874, in the course of a suit between Onl SUh ftnd 
Jiudwada, father o! the appellanta,- Jindi^ada stated that Ool 



ttS oi^t nttcnutltB-ti: ta. 'X1Uam», 



8b A hsdno land except that aow in mit, and neitfier'Gful 
Sliah nor his Bon, the vendor, expreBsly abandoned the land, or 
di*»ntt n ned poncVsion 12 years before anit. 

Connwdforthe appellants rdied on iWWBottifc t. S*«iw«i». 
itd^n (1) and Mohima Ohander Uaaaomim- fc liakHh 
Ohandar iTeoghi (•), In the latter ease their bordAlpvvf tbe 
Privy Conncil held that plaintitEs in a suit for possessioD, buad 
OB their tifle, had to prove their possession within 12 yaars of 
snit ; and in the former ease it was held that a claimant. tb> sole 
*W»iai«ti« «f ^»hA6 rights was the reoord of his father's name 
10 a list of absconders attaehed to paragraph 8 ^f the reoord of 
rights in 1864, had failed to establish the disoontinnance of his 
possession. The snit was instftnted in November 1890. Neither 
of these anthorities JmI^ the afp^f mte. 

It-i« rtttfMtea that Che htnd in snit was ildt assessed to 
Government revenne, and tbo owners oonseqoently did not 
• abandon it to evade payment ef revenue. In the absence of 
motive tm abandaameoli, sfMl <rf evidenoe of ratmiMan to 
abandon or of adverse passisfl i eo of the appellants for the 
statntory period, ihe suit is not barrwl by Artiole 142 or 
Article 144 of the Limitation Act, and the reoord does not 
floatalli any satisfactory evidence of snch motive or intention or 
adverse possession. Vailnre to cultivate nnonltutable land does 
not constitute abandonment. Bamzan AU v. Batharat Ali (*), and 
T«t7 little, if aay, «f the land was ouUnrdble. A» poiaiad oni 
by the lower Appellate Oourt. mntatioa m» irflnrtcJ in Uiwat at 
tba TMdoif i* 1901. en his falher's imith, after tto «ppei. 
lant ShalMiaak had bakm aaisi wha* tbv faate w«i«^ mi 
this was after the vendor had been reooeded as an absentee 
and the appellants had been recorded as in possession dur- 
ing the setdemeut of 1901.02; Tlie nOt #ai/ ttMltlited 
in 19tt}» 

• la Of «|iiai«n neither tter«sadornar bis fMher abaadtned 
the land in snit and neither of them discontinued pesMiimt or 
issn. aaalad iwdve-yeaM befona snH. 



Tha appeal fails and ia dismissed with eosts. 



^ "•'•'^*Ti.«»,?lf&j'''"'''«^'*'^. '^<=^ 



Afril 1907. ] OIVIL JUDGMENTS— No. 64. 229 

No. 54. 

Before Mr. Justice Robertson. 

SUNDAR SINGH,— (Plaintiff),— APPELLAIJJT, ] 

Versus > AmiLin Sidb. 

MEEIB SINGH,— (Defbhdant),— RESPONDENT. ) 

Civil Appeal No. 1298 of 1906. 

Cvstom^-'Pre-efnption^Pre'emption on aaU of shops — Katra Bamgarhian, 
Amritsar city ^Punjab Laws Aet^ 1872, Section 11. 

Held, that the oaBtom of preemption in respect of sale of sbopa by 
reason of vioinage in Katra Ramgarhian of the city of Amritsar has not 
been established. 

Further aj>peal from the decree of Captain A, A. Irvine, Additional 
Divisional Judge, Amritsar Division, dated 23rd January 1906. 

Ram Bhaj Datta, for appellant. 

Sakh Dial and Ronahan Lai, for respondent. 

The judgment of the learned Judge was as follows : — 

ttoBBRTSOH, J.- The sole question for decision is, does the 8<A /any. 1907. 
right of pre-emption obtain as regards shops in the KcUra 
Ramgarhian of the Amritsar city ? 

It is quite clear that it lay upon the plaintifE to prove 
afl^matively that the custom does obtain. The learned Ad- 
ditional Divisional Judge has held that the evidence offered in 
proof of its existence is insufficient. 

Proof that a custom exists in regard to houses is not suffi- 
cient to show that the custom exists as regards shops. The 
building, which it is sought to pre-empt in this case, is a shop 
pure and simple. 

There is one instance quoted in which in 1899 the Munsiff 
2nd class, held that the custom of pre-emption did exist in regard 
to shops, but this is the only instance in regard to shops pure 
and simple. 

There are two other instances, one in 1882 and one in 
which Mussammat Ram Kaur was plaintiff, mentioned by the 
witnesses in which the right of pre-emption was successfully 
asserted in regard to tenements which were partly dwelling, 
houses and partly shops. 

The other instance relates to dwelling-houses only. 



2M CIVIL JUDOIIENTS-Ko. 55. [ BMMB 

No evidence was offered by the defendants bat the question 
is whether or not the plaintiff has sncceeded in proving conclu- 
sively that the custom does obtain. 

I agree with the learned Divisional Judge that he has not, 
and reject the appeal with costs. 

Appeal dismissed. 



No. 66. 

Before Mr. Justice Lai Chand. 

CHIRAGHDIN,~(PLAiNTifp),— APPELLANT, 
Versus 
NIZAM DIN AND OTHERS,— (Defbndauts),— RESPONDENTS. 

Civil Appeal No. 741 of 1906. 
Bab }Xidio&t A— Butt for declaration of ownership of land by ptitehase'^ 



APPItun SXDB. 



Dismmal of suit on merits-- Subsequent suit for possession by same plaintiff 
as heir-'Different causes of action— Citil Procedure Code, 1883, Section 13. 

Heldt that the distaiasal of a suit for a deolaration that the plaintiff 
was the Bole owner in posseBBion of certain land by porohaee is not 
res judicata in a subsequent suit brought for the posaession of the same 
property on the ground that the plaintiff was entitled to the said land not 
as an owner but as heir and adopted son of the last male owner inasmach 
as his title as an heir being an inoonsistent claim conid not have formed 
an alternatiye ground of attack in the former suit without creating 
confusion. 

Although a party is bound to pot forward all grounds of attack as have 
reference to the same cause of action but where seyeral independent 
grounds are available to him he is not bound to unite them all in one 

suit. 

Fwrther appeal from the decree of J, O. M. Bennie, Esquire 

Additional Divisional Judge, Amritsar Division, dated 

'^UhMay 1904. 

Oertel and Zia-ad-diD, for appellant. 

Nahi Bakhsh, for respondeDts. 

The judgment of the learned Judge was as follows :— 

ZWk June 1906. I^t. Ohand, J.— The lower Courts have dismissed this suit 

as barred by Section 13, Civil Piocednre Code, under the 
following circumstances. 

One Kntba, who was entered in the revenue papers as owner 
and mortgagee of portions of the landin suit, died childless on 



If AT 1907. 3 OIVIL JUDOMlNTO—No. 55. ^j[ 



12th Febraarj 1903. Matation of names having been efEeoted 
in defendants* favour as revernionera of Kntba, the present 
plaintiff saed the present dofeniantd on 24ibiL Jaly 1903 for a 
declaration that he was sole proprietor in pDsseision of the 
land entered in Kntba's name as owner. The suit was based 
on the foundation of a salo deed, •dated 3rd Jnne 1887, on which 
plaintiff relied to support his title. The defendant pleaded that 
Kutba was the true owner, and that the sale deed relied upon by 
plaintiff to support his title was caused to be exeaueed benami 
in plaintiff's favour by Kutba. The Court held that the sale 
deed was benami and that Kutba was the true owner, and on these 
findings dismissed plaintiff's suit on 25th January 1904. On 
11th February 1904 the present suit was instituted by plaintiff- 
appellant for possession of land claimed in the former suit and for 
additional 7 kanals and 17 marlas held by Kutbi as mortgagee 
alleging his title to recover possession as be\r and adopted son of 
Kutba. The lower Courts have dismissed the suit as barred by 
Section 13, Civil Procedure Code, on the ground that the plaintiff 
ought to have included his claim as an adopted son in the 
former suit as an alternative claim. 1 am unable to agree with 
the view taken by the lower Courts. It appears to me that the 
lower Courts have failed to notice that the plaintiff is not 
now litigating under the same title as in the former suit. 
His former suit was based on an allegation that ho was 
owner of the land then sued for by reason of bis purchase in 
1887, and he produced and relied upon the sale deed, dated 3rd 
June 1887, as the foundation for his title. According to tho 
allegations made in the former suit Kutba never owned or held 
the land in dispute. On the other hand, in the present suit, 
plaintiff admits Kutba's title and claims as his heir. It is 
ioconceivable how under the circumstances plaintiff could have 
included such inconsistent claims in one plaint in the former suit 
without creating conf asion. Moreover, the decree passed in the 
former snit disposed of plaintiff's title as then set up, t?t>., that 
he was owner of the land by purchase. This decision by 
implication decided against plaintiff all grounds whether urged 
or not by which he might or ought to have supported his claim 
as owner by purchase. But the decree then passed could by, no 
means be held to have disposed of the ground or title now alleged, 
vtM., that plaintiff was entitled to recover possession not as ovmer 
in spite of Kutba but as his heir and adopted son. Explanation II 
to Section 13 on which the lower Courts and respondents' pleader 
have relied is altogether inapplicable to such a case. Explanation 
11 merely expUins ik mittjr dir^cbly aud sabibjbutijklly in isau 



282 ' CIVIL JUMMBNTS— No. 56. [ B»oc»D 



in a suit, bafc it doea not dispense with tbe necessity of finding in 
a p\-!;iji]fcr o»?) fch) othapeqiiUly eneatlil reqi'rem ents of 
the section snch as that the parties were litigating nnder the same 
title and that the matter in issue was finaUy heard and decided. 
It is true that a matter which was not alleged but might and 
ought to have been alleged would not ordinarily be expressly 
heard and decided in the former suit, but it might be disposed of 
by implications, ue , the gist and nature of the decision might be 
such as to include by implication a final decision of that matter. 
Any how Explanation II is merely an explanation of a part of 
Section 13 and cannot be treated as over-riding or dispensing 
with the other equally essential provisions of the section. I 
therefore hold that Section IS is not applicable to the present 
case. The view I take is supported by the following 
authorities : — 

Pala Med and others v. Maya (^), Samaswami Ayyar v. 
VythincUha Ayyar («), Veerana Tillai v. Muthu Kumara Asary («), 
Woo mesh Ohatidra Maitra v. Barada Das Maitra (*), and 
Kailash Vondul v. Baroda Sundari Last (»). 

For the respondents reliance was placed on Kanhaya Lai 
V. Oharati Lai (<*), Badar Dm v. Bura Mai ('), Banne Shah v. 
Karm Ohand (»), Kesar Singh v. Jawand Singh (»), Kaia v. 
Bhola (10), Pala Mai v. Maya (* i), hek Muhammad v. Sattar 
Muhammad (^^), Zafaryah Khan v. Fatteh Ram (^ >), Imam Khan 
V. Aytib Khan (^*), Kameswar Pershad v, Bajkumari Ruttan 
Koer (**), Dost Muhammad Khan v. Said Begam (^«), and 
Pulandar Singh v. Jtoala Singh (*'), but they are inapplicable. 

(1) Kanhaya Lai v. Gharabi Lai (*), distinctly proceeded on 
the ground that the claim in each suit being hy inheritance, the 
plaintiffs in the previous .suit might and to have asserted their 
title as collateral failing their exclusive title as grandsons. 

(2) Bada^ Din v. Bura Mai (^), was a cas© of a defendant 
held bound to resist the claim on all grounds available at the 
time and his case was held distinguishable from a plaintiff's 



(») 146 P. «., 1890. (•) 142 P.JJ, 1884. 

(•) I. L. U., XXVI Mad, 760. ( «) 96 P. B, 1881. 

(•) /. L. JB.. XXVIl Mad., 102. (* >) 146 P. U., 1890. 

(*) I. L. «., XXVIII OaLc,, 17. (»•) 63 P. «.. 1896. 

(») I. L. «.. XXIV Cole, 711. (»•) 100 P. «.. 1898. 

(•) 4 P. R., 1899. (1 ♦) /. L, B., XIX All., 517. 

CO 4 P. B., 1903. (I •) I. L. U.. XX Cale.l 79. 

(•) 39 P. 12. 1881. ( M /. I. B. XX Alll 81. 
00/.i.B.,XX4W.,618. 



Mat 1907. ] CIVIL JUDGMBNTS— No. 55. 288 

case who may not be b)and to sue for relief on all the previous 
caa883 of actioQ whioh he may claim to possess* 

(3) Banne Shah v, Ka^m Ohani (*) was a similar case 
where defendant failed to set ap all his pleas ia the former 
salt for possess ioQ which was decreed and defendant was 
held pi^eoloded from buiug to recover possession of the same 
nropertr on a groand which wns not pleaded by him in the 
former sait. 

(4) Kesar Singh v.Jawand Singh (•) proceeded on the same 
priDciple as Badar Din v. Bura Mai (^) already noted. 

(5) Kaka v. Bhola (*), proceeded on the ground that 
the claim for compensation made in the suit was a condition 
precedent to ejectment and therefore ought to have been 
made a groand of attack in a suit to contest notice of ejectment. 

(6) Pa^a Mai v. Maya (*) distinctly laid down the 
principle that where several independent grounds of action are 
available a party is not bound to unite them all in one suit 
though he is bonnd to bring before the Courts all grounds 
of attack available to him with reference to the title whioh 
is made the ground of action. 

(7) Nek Muhammad v. Sattar Muhammad (•). Section 13, 
Bxplanation II, was applied on the ground that the matter 
alleged in the snbsequent suit was actoally decided in the 

^previous suit against the plaintiff though not raised by him. 

(8) Zafaryah KJuin v. Fatteh Ram (';. Full Bench merely 
laid down that Section 13 would apply if the material issue 
in both suits be identical although the subject-matter may be 
different. 

This case was quoted with reference to claims for 7 kuTMls 
17 marlas held by Kutba as mortgagee, but is wholly inapplic- 
able as the material issue in the two suits is entirely different 
and not identical. 

(9) imaw Khan v. Ayub Khan (") is more to the point. 
Plaintiff first sued for possession as owner which 



(») 89 P. B., 1881. (*> 146 P. il., 1890. 

(•) 142 P. B., 1881. . (•) 63 P. R., 1896. 
(*) 4 P. B., 1903. (») 100 P. B., 1898. P. B. 

(*) 96 P. B , 1881. (•) /. L. B., XIX All., 617. 



^34 CIVIL JtrOGMENTS— Ko. 55. [{Bbcobd 



fniled nnd then saed for posseesion as mortgagee which was 
held barred ander Seotion 13, BxplanatioD II. This case, 
however, was deoided with refereuce t-o the jadflrment of 
their Lordships of the Privy Council in Kameswar Pershad v. 
Bajkumarl Rattan Koer (i) whioh as pointed out in Rama" 
swami Ayyar v. Vythinatha Ayyar (^), has been misapprehend- 
ed and misapplied in certain cases. I am inclined to believe 
that it was misapplied in the Allahabad case under refer- 
ence. It was app\rent]y over-looked that in the Privy 
Oonnoil case the title under which the plaintifiE saei in the 
form<*r and the snbseqaent suit was idtintioal by his title 
as a mortgagee. He, however, omitted in the former suit 
to urge defendant's personal liability for the claim on a 
l^round which he urged in the subsequent suit, and under 
the cirourostances it was held that Section 13, Explanation ' 
11, applied. It was pointed out : *' Where matters are so 
*' dissimilar that their union might lead to confusion, the 
"construction of the word * ought' would beome important ; 
*' in thib case the matters were the same. It was only an 
"alternative way of seeking to impose a liability and there- 
"fore ought to have been made a ground of attack in the 
" former suit and therefore that it should be deemed to have 
" been a matter directly and subitautially in issue in the 
" former suit and is res judicata " 

It is obvious that this judgment is altogether inapplicable 
to support respondents ' contention in the present case and it does 
not seem to me to support the view taken in the Allahabad case 
under reference which appears further to bo directly opposed to 
the decision in Ramaswami's case. 

(II, & 12). Two more cases Dost Muhammad Khan v. 
Said Begam (*) and Pidandar Smgh v. Jwala Singh (♦), were 
relied upon. Both these cases were of omission to plead a 
certain ground iu defencd and were analogous to Badar Bin v. 
Bura Mat (*) already explained. 

(12) The second case however was expressly over*ruled 
by Fall Binch judgment of the same High Court in Bam 
Ohand v. Ddrga Prasad (•), and is moreover opposed to the 
view taken in Khairati v. Akko (^) where it was held that 



(1) /. L. R., XI GaU., 79, P. 0. (*) /. L. R., XX All, 616. 
(«) I. L. iJ., XXVI Mad., 760. (•) 4 P. B., 1903. 

(») f. L. R,, XX AU,, 81. (•) /. L. E., XXVI iU., 81. 

C) 108 P. B., 1882. 



M4T MC7. ] OIVIL JUDemBSTTB— So. 56. 235: 

the ftirbMqtreiit fiott for pre^empHoD by the same plaintiff who 
failed to set aside a sale as a reyersioner was not barred nnder 
Section 13, ExplaBfttiou II. 

It im thus dear that none of the casefl qvoted for respondentB 
support the Tiew taken by the Jo'vreT Conrts and the single case 
which is somewhat analogous, viz,, Imam Khan ▼. Ayvb Khan (^) 
proceeded, T Tentnre io think, on a misapprehension and 
misapplication of the judgment of their Lordships of the Privy 
Council in Kamenoar Pershad v. Eajhumari Eultan Koer (*). 

I therefore hold that the sait is not barred nnder Section 13, 
Civil Procednre Code. 

The appeal is accepted and case remanded trader Section 662, 
Civil Procedure Code, for ded'sion on the merits. The Conrt 
fee on appeal will be refunded and other costs will be costs in 
the cause. 

Appeal allowed. 



No- 56. 

Before Mr. Justice Johtibtone and Mr. Justice Raitigan, 

AJCDHTA PERSHAD AND OTHERS,- (Dbpehdants),— 
APPELLANTS, 

Versus 

AHSAN-DLLAH,— (Plaintiff),— RESPONDENT. 

Civil Appeal No. 902 of \Wd. 

Pre-emftioffFurchoBe moneys Good fuith^rvnjah Laus Act, 1872, 
Section 16 (c). 

Heldf that the fact that the consideration for a transfer of property 
which is subject to right of pre-emption consisted of old debts made op 
largely of interest is not in itself a sofBcient reason lor finding that the 
consideration entered in the deed of sale was- not fixed io good 
faith. 

In snch a case, where the tender owns other property and is not 
insol?ent, and there has eyidently been a conscious adjustment of valae 
and not merelj a wiping out of debt regardless of amount in exchange for 
the land, there is no natoral presumption that the price was fixed in bad 
faith. 

(») 1. 1. B^ XIX All., 517. (») 1. 1. B., XX Calc, 79. 



Appbllatb Sidb. 



236 CIVIL JUDGMBNTS-No. 66. | Rboow) 



Phumman Msl v. Kema C) and Nandk Chand y. ficm Chand (•) 
followed.. 

Vir BKan y.Mattu 8/uih (*> considered and distingnished. 

Further appeal from the decree of Kozi Muhammad Aslam, Divi- 
sional Judge, Ferozepore Division, dated llth June 1903. 

Shah Din and Gaspat Rai, for appellants. 

Sheo Karain, for reapondent. 

The jadgment of the Ooart was delivered by 

lith March 1906. Johhstonb, J.— This is a pre-enaption suit, the land 

sold being describipd as 449 lighas odd kham or 150 highas 
puhhta. The price stated in the deed being Bs. 4,000, the 
first Goort gave plaintiff a decree for possession on payment 
of Rs. 3,800. The plaintiff having appealed for a redaction 
of the tignre and defendants having filed cross-objections, 
the learned Divisional Judge rejected the latter and, accepting 
the appeal, rednced the price to he paid to Ps. 1,621-14-0, 
making a caloalation on the basis of Bs. 10-13-0 ;«er higha 
puhhta, which was apparently the average rate of a 
number of sales reported by the Patwari at time of 
settlement. 

Defendants, vendees, now appeal and ask this Court to raise 
the figure again to Rs. 3,800. 

It has been laid down over and over again that before a 
Court proceeds to assess market value in pre-emption cases 
and to call upon a plaintiff to pay that, it must satisfy itself 
that the price stated in the deed was cot fixed in 
good faith. Here the price stated in the deed is made 
up of Rs. 1,300 principal, t,e,, hard cash, plus Rs. 2,700 
interest. 

Three rulings have been quoted in connection with this 
matter of the assessment of price to be paid in pre-emption 
cases, viz.y Ihumman Mai v. Kemo (»), Vir Bhun v. Mottu 
Shah (*), and Nanak Chand v. Bam Chand (»). In the first of 
these cases the learned Judges said that the law of pre-emption, 
though it does operate to keep down the price of properly 
to some extent by hampering transfers, is not intended to 
have that effect but merely aims at protecting ihe prior 



C) 76 P. H., 1901 . (•) 68 P. a, 1902. 

(•) 77 P. B., 1901. 



IUy 19ar. ] GITtL lUDGMlMTS-Mb. 56. 2SJ^ 

rights of parehase of certain persons on speeific grounds, 
and as it sfcinds cannot be interpreted to deprive the owner 
of the right to make the moat he can of his property, and 
Uiere is nothing improper to demand or to pay a price 
much above the market vvlae. Therefore, they o'tntinned, in 
a case for pre-dmption, where the price entered in the deed 
of sale, thoagb considerably above the market valne, was 
not shewn to be fiotitiom, and where there was no proof 
nor indioatioQ that any portion of it was refanded or otherwise 
appTopriatei it mast be held that the price wag fixed in good 
faith. In Slfanik Of^and v. Bam Ohind (*), the above raling 
wa^ qaoted and geaerally approved, and the Division Bench 
held that the law of pre-emptioa does not allo^ pre-emptor 
to take objection to a price aotaally and genuinely paid on 
tbe gronad that it is a fancy price, the m<^rket valoe being 
no teat of what should be paid by a pre-emptor until the 
price mentioned in the deed is shewn to have been fixed not 
in good faith. It was also held that the motive which prompted 
a vendee to pay a fancy price was immaterial. 

In Vir Bhan v. McUtu Shah (^), it was laid down that 
in a case for pre-emption, where the transfer was insatisf action 
of old debts, if the market value of the property does not 
appear to differ very materially from the amonat of the 
debts due by the vendor, and the price actually paid is the 
cancellation of all the liabilities mentioned in the deed, the price 
BO paid may be held to have been paid in good faith ; but that 
where the diiparity between the market valne of the property 
and the sum in satisf acti(m of which it has been accepted is 
very great, and the debtor is clearly insolvent, and the property 
was practically the debtor's only asset, the market value of 
the property is the proper test of what the pre-emptOr should 
pay. 

This ruling rather turns the flank of the law than actually 
grapples with the diflScult question of the meaning of the 
words " good faith ** in clause (o), Section 16, Punjab Laws 
Act, bnt the case is so different from the present one in 
several particulars that it is no guide for us here. Here the 
debt up to Rs. 3,800 at least is gennine, though most of it is 
interest. Then there was actually a mortgage for Rs. 2,000 in 
October 1892, a sum larger than what the learned Divisional 
Judge has allowed as the proper price. Tbe land is not 
the vendor's only asset by any means and he is not apparently 

<») 68 P. a, 1909. (•) 77 P. a, 1901. 



288 ^'TVl^ JUDGMRNTS— Na 57. t RicoeI> 

iosolreofc. Nor Wdis ifc the iabiitija to wipe oCE all voad^r's 
liablUties fco vea lee, for fche itom of B3. 1,2BJ ia the* deed is oalj 
pjkrt of a djO(*eUl sam of El<i. l,SOJ aad the remaiader Bs. 520, 
it is aaderstooi, remaiaMl dae. Tha), there seecns to have 
been a sort of adjastoienfc of valae i 1 a manaer to saitveadjr and 
yendoe and not a wholesale wiping oat of all debts, however 
maoh they might be in exchange for the land. 

In these clrcaontanoes we are unable to see where 
** h^ faith" cooioi in, and we accept the appeal and, setting 
aside the deoree of the lowor Appellate Court, give plaintiff 
a deoree for posdossioa by pre-emption on pdcjmeat of Rs. 3,800 > 
a^ dirjctel hy the 61 st Court, the money to be paid within 
three months. On default, the suit to stand dismissed with 
oosts. Otherwise parties to baar their owa cjsts ia the first 
Court, but plaintiff to pay vendee's oosts in Divisional and Chief 
Coarts. 

Appeal alUnoed, 



No 57. 

Before Mr. Justice Beid, Chief Judge, Mr. Justice Chatter ji^ 

C.LB,f and Mr, Justice Johnstone. 

RAJAB-UN-inSSA,—(PLAnmfF),— APPELLANT, 

AfVBUATE 8n>i. { Versus 

HABIB BAKHSH AND OTHERS,— (Dbfindakts),— 
RESPONDENTS. 

Civil Appeal No. 854 of 1906. 

Uqb }\idiQAiA^ Matter directly and suhstantiaUy in 488ue — Unneceisary 
findhig ^ProformA defendants ^Civil Procedure Oode, 1882, Section 13. 

'A* died leaviag foar Bjns aad aix daaghtera. One of the four sods 
brought a suit impleading all his brothers and sisters for partition and 
posd'^saion of a one-foacth share in the deoeased*a property, first by eoforoe- 
ment of an award against his brothers and sisters, the latter having, 
aooording to his oontention, oonseoted to the reference, and failing that 
for partition (a) noder a onatom by which daagatera Here ezolaied fiom 
inheritanoe, and (6), if no oastom was proved, in acoordanoe with the per- 
Bonal law of the parties. The Court found that the sons were bound by 
the award, but that the daughters had been duped into signing an agree- 
ment consenting to the reference and were therefore not bound by the 
award. It then took np the qaestion of the rights of the daugiters and 
came to the conclusion that they were excluded by custom and. ojnse- 
queutly, their consent to the reference beiug immaterial, decreed substailti* 
ally in acoordanoe with the award. 



Mat 1907. ] CIVIL JUDGMENTS— No, 57. 289 



- No declaration against the daughters was prayed for or giY^n In the 
decree. No part of tbe property in dispate was alleged or fonnd to be in tbeir 
possession nor were t bey required by the decree to surrender any. Snbse* 
qnently fonr ont of tbe six danghters instituted sepsrate suits for possession 
by partition of their shares of the estate left hy their dtrcBfrd futhtr in 
aooordance with MnbnmniadAD Law. The defence pleBded that the suit w«s 
rst/iMiica^a under the decree in the previous case, inasmuch as it was 
thereby foand that daughters were excluded by cuBtom and as they did not 
appeal from that adjudication it bad become final. 

Beld by a majority (JoVnatoue, J., disflODting) that on tbe faots as 
found the suit was not barred either under Sectioo 18 of tbe Code of Civil 
Procedure or on the general principles of rea judicata, tbe ist«ue relating to 
daughters* rights io the former jndgmeot being unnecessary for the decision 
of tbe case on tbe ground on whiob it proceeded, ins., tbe award being bindiog 
on tbe brothers who bad all tbe property in suit in tbeir possession, and not 
being raised by tbe pleadings, such rights not being in question in tbe daim 
upon tbe award, but by tbe Court gratuitously after it bad held the award 
to be binding on the brothers ; and that tbe finding on it could consequently 
not be pleaded as a bar to tbe present suit. 

Held, also, that a party setting up a plea of res judicata is bound to 
establish it and the coort competent to examine, whether the point Was 
necessary for tbe decision of the case upon the ground upon wbfcb tbe 
final decision ultimately proceeded and was directly in issue in tbe former 
litigation. 

Ftrst appeal from the decree of Maulvi Muhammad Eussain^ 
District Judge, Delhi, dated 2&th June 1901. 

Mnharomad Sbafi, for respondentB. 

At the first heariDfif of this appeal the following judgments 
were delivered :— 

Chattbbji, J.— This appeal and Civil Appeals Nos. 855 and 3r<2 Augn$i 1905. 
958 of 1901 and 145 of 19C2 are intimately connected being 
claims by fonr dangbters of one Malik E[arim Bakhsh for their 
individnal shares in the property left by their father under 
Mnhammadan Law. Tbe plaints and pleadings are practically 
tbe BSLwe in all tbe capes, and tbey bave been disposed by the 
District Judge by ore judgment. T propose to deal with them 
similarly in this Ck>art* 

The plaintiff appellant in this appeal, Mnssammat Rajab- 
nn-nissa, sned in formd fauperia for one* thirteenth of her 
father's estate pnbstantial^y on tbe following allegations:— 

That Malik Ean'm Bakhhb lift picjeily of the valne of 
Rs. 86,000, when he died on 5th March 1890, and that defen- 
dants 1 to 7 are in poFsecsion. Tb at owing to the death of 
Wali-nn-nissa, one of 4 he daughters of Karim Bakhsh, plaintiff 
wa8 entitled to a thirteenth share. 

That defendants 1 to 7 decline to give plaintiff her phare. 
She therefore claimed ber sbaie of the property in defendants' 



240 CIVIL JUD0M1INT8-NO. 57. C J^co» ^ 

poflBession and of the sale^proeeeds of a house sold by ihe defen- 
dants for Bs. 10,000, as well as for her share of mesne profits and 
other ancilliary reliefs. 

The three other plaintiffs bronght exactly sinailar claims. 

The pleas are practically the same except tlat Babib 
Blikheb, defendant, alleged that the share of the dr ceaFf d WaK- 
nn-nissa was inherited by him, the brother, and the Bisters of 
the whole blood of the deceased and not by Bpajab-nn-nissa. 
The main prelilninary plea, however, was that the suit is res 
judicata nndcr the decree of the District Judge, Delhi, dated 30th 
June 1893, in a previons enit bronght by Rahman Bakhsh, delen* 
dant, against the other sons and ~ the danghters of Karim 
Bakhsh, inelading the plaintiff. In that snit it was fonnd that 
danghters do not saoceed to the property of their father accord- 
ing to the cnetom of the family and the plaintiffs were held 
entitled to nothing. The plaintiffs did not appeal frcan that 
adjudication which has therefore become final. 

This preliminary plea, however, was nrged izi the first 
instance by Rahman Bakhsh, vide page 12 of the printed record. 
It was not urged by Kadir Bakhsh and Rahim Bakhsh, defend- 
ants^ whose written pleas are given at pages 13 and 16 of the 
printed record. Habib Bakhsh raised it, see page 19, para. 6. I 
shall discuss hereafter whether it is competent to the last defend- 
ant to urge the objection. 

The District Judge has dismissed the suits of all the plain- 
tiffs on the ground of res judicata against all the defendants, and 
this is the sole question for determination in all the fonr appeals. 

In order to properly understand the bearings of this ques- 
tion in these suits it is necessary to go carefully into the history 
of the former case. A resume of the facts of that case is given 
in Mu^sammat Fakhar^un-nissa v. Mohk Bahtm Bakhsh (*), 
pages 98 — 101, and as it is ef>sential to recapitulate them in some 
detail for the proper elucidations of the points raised in the 
arguments of counsel I make the following extracts from that 
judgment :— 

*^ Malik Karim Bakhsh of Sabzi 11 audi, one of the suburbs 

'* of Delhi, died on 5th March 1890, kavirg a large property in 

** land, houses and moveables and the following descendants : — 

" (1) By his first wife Mufsammat Faiz Bi, three sons 

Bahim Bskhf^h, Rahman Bakhsh and Kadir Bakhsh, and two 

** danghters Mnssammats Diljan and Najam-un-nissa. 

C) «8 P. B., 1897. 



Mat 1907. ] Ottlh JUDGMBNTS-^No. 67. 241 



" (2) Bj his seooDd wife MnsBammat' KhaDam, one son 
" Habib Bakbeb and fonr dangbters MussamiBat Alabaadi, 
*^ Shams-DD-nissa, Wali-tm-niBfa and Fakbr-un-niaea. 

*^ JoBt before bis deafb Kaiim Bakb^b is said to bave 
*' appointed cue iziz Din, aibilrator, to divide bis property 
'* among bis sons, to fix reasonable amounts of maintenance for 
*' bis daa^bters in case of necessity, vide documents P. Ill and 
" P. IV, dated tbe 15tb and 16th Janoary 1890, respectively, 
" (pages 218 and 220 of tbe printed recoi d). Tbe former is 
" witnessed by all tbe fonr sons, and simply directs tbe division 
" of tbe property among tbem. Tbe latter is a sort of post- 
" script to it and recites that by the custom of tbe family of tbe 
" executant bis dangbters are excluded from sharing in bis 
'* property, and requests the arbitrator to provide a suitable 
" scale of maintenance for them should' they ever be in need 
'*- thereof. It must be stated here that the genuineness of these 
'' exhibits is disputed by the present appellant, but (his qnestion 
*' will be discussed in its proper place. There is another agree- 
" ment, dated 25tb March 1890, printed at page 218 of the 
" record, which purports to have been executed by all the 
" daughters, reciting the fact of the reference to arbitration 
" for division of their father's property among their four bro- 
" thers^and agreeing to the arbitrator's fixing proper mainten- 
•' ances for themselves according to family custom. Tbe gennine- 
" ness and validity of this document is also contested and forms 
" two of tbe main points fcr decision in this caee. There is one 
" other agreement which lequires to be mentioned here, viz., 
" that printed at page 216 of the prirted record which was 
*' executed by the sons. It is dated the 18(b March 1890, and 
" by it tbe sons ratified tbe act of their father referring tbe 
" division of his property to the decision of the arbitrator Aziz 
*' Din, and it is upon this agreement that the latter baa professed 
«* to act. 

"* Tbe arbitrator gave his award on 28tb March 1890, and 
** shortly after Rahim Bakhph, one of the sons, put in an 
" application under Section 525, Civil Procedure Code, to have 
** it filed and a decree given in accordance therewith in tbe 
"Court of the DiFliict Judge of Delhi. Tbe issue of Karim 
'' Bakbab by bis first wife accepted the award, but tbe children 
" of the seeond difputfd it, and tbe daughters denied having 
<• made tbe reference at all. Tbe District Judge, Mr. Clifford^ 
'* found that tbe last named defendants bad executed but bad 
'' sotgiren their hee coBsent to tbe agreenent, dated 25th 



242 ^VI^ JUDQMBNTS-No. 57. [ IUwoi» 

** March 1890, aod that the award was in coDBeqnence not 
" binding on then). He therefore diFmiBPed the application. 

<'0n 2]8tMarch 1892 Malik Rahman Bakhsb, one of the 
** Bons of Karim Pakhgh, by hip firj-t vife, inFiifnfed a Fnit in 
" the Diptrict Court of Delhi, dairoirg divipion of the f aternal 
" property in terms of the award, but failing this, in accordance 
" with Mnhammadan Law. The plaint, after reciting all the 
"facts, stated (paia. 8) that by the cnstrm of the family to 
^' which the late father of parties refened, the plaintiff is entitled 
** to one-fonrth share of the entire estate, but if the danghters 
" are entitled to share according to Mnhammadan Law, then 
"plaintiff is entitled to two ont of fourteen shares and 
" wonnd np by asking for the following reliefs (para. 10) ; 
" that it be declared — 

"(a) Whether all the parties to tie snit aie bcnnd 
"by the award. If not, are any so honnd; if 
" so, who? 

" (6) If the award is to be binding on none, then 

" for a decision as to whether the parties 

" are governed by cnftcm or by Mnhammadan 
"Law? 

"(c) If it be decided that $hara has to be followed 
"and danghters entitled to a share, then*all the 
*' estate be divided among all the sharers, and 
"plaintiff be given his one-seventh share by 
"partition and possession, etc., etc. 

"On 13th April 1892, ihe present plaintiff-appellant 
"sned for paitition and possession of her one-fourteenth 
" share according to Mnhammadan Law and the custom of 
" the tribe, and for an account of the income and expendi- 
" tore of the estate since her father's death. 

''The pleas of Rahim Bakbsh and Qadir Bakhsh were 
** substantially the same in both cases and they adoHtted 
*• that by family custom plaintiff, Rahman Bakhsh, was 
" entitled to one-fourth of the paternal estate, but denied 
" that daughters were entitled to anything besides main- 
" tenanco. 

"Malik Habib Bakbsh pleaded, in the present suit, that 
••certain properties, rir., Mavza Koreni and Sirdarakhti of 
" the Ghazi-nd-din garder\ were his exclnsive property under 
" gifts made by his father, and i^ere not liable to partition, that 
" with the exception of one house occupied by him as his 



% 



li^il907. 1 CIVIL JOD&MB5Jr8-No. 57. 243 



" residence he had no anoastril property in his possession, that 
"RihimBvkhihattd Kaiir Bikhsh held the whole and were 
•* aloae Ajj3a it vbL», th it bh) na vfcjriiU of two shops belonged to 
" him and that he had nevar objected, nor did now object, to 
" give plaintiff her share under Mnhammadan Law. The above 
" is the substance of two written statements filed by him on the 
" 2l3t April and the 21it May I8i^2, respectively. Hia pleas in 
•« Rahman BAkhsh's sait were easentially the same. 

" Ma^sanmats Al ibandi, SJiams-an-nissa aad Wali-un-nissa, 
" own sisters of the plaintiff, admitted her claim and set up 
** tbeir o^n rigbts in reply to Rahim Bakhsh's claim, and 
'^ plaintiff also did the same in that suit. 

" MajsammiU Diljitt and Najam-au-nissa did not defend 
'* either sait, and proceedings against them were ex parte. 

'* B;cb salts wjre tried togstbar, and by consent, the evi- 
'* den^e taken in tbi prjCi3eiiags ander Sjotion 5i5, ivil 
'^ Procedarf Oode, was treated as evidence in them.'' 

The District Jadge drew ten issues of which the following 
alone are important for purposes of the present appeals. 

2. Was Aziz-ud-din duly appointed to arbitrate the 
dispute between the parties P 

3. And if so, is the award, dated the 28th March 1890, 
by him binding on all the parties to the sait and to what 
extent ? 

4. If not, what is the rale of inheritance among them, that 
is, whether sha/ra or custom* 

5. If custom, what are the daughters entitled to under 
the same ? 

He found on issues 2 and 3 thfit the sons of Karim Bakhsh 
had duly appointed Aziz-ud-din arbitrator under deed, dated 
I3th March 1890, but that the daughters had been duped to 
sign an Hgreemont of a similar purport, dated 25th March 
1890, and that the agreement and the award were not in con- 
sequence bind.ug on them. 

He then went on to say *' there are some awards in which 
'^ those who executed the agreement referring to arbitration can 
" be bound by the award, bat this is an award which, if the 
'* daughters are entitled to succeed in accordance with Muham- 
" madan Law in the property can be binding on all or none". 
These words- are important to be borne in mind for they 
contain to my mind the main foundation for contention of 
res judicata advanced in this case. 



244 OVriL JUDQMISIfn-No. 57. [ BMoota 

He foand on issue 4 that the parties were Arains and 
governed by castom by which daaghters were exoladed from 
inheritenoe, and on issn^ 5 that they are etititbd tu Huiublo 
maintenance according to the enstom of the family. He then 
went back to issue 3 and held that as the daughters had no 
claim and the estate was to be divided among the sons, they 
were bound by the award of the arbitrator appointed by them. 
He divided the pnperty in terms of the award among the four 
sons and three items of moveable property of the value of Els. 205 
omitted from the award equally among them. 
i The sons were satisfied with the decree but Mussammat 

Fakhr-uu-nissa, the daughter, who had filed a suit claiming her 
share under Muhammadan Law and whose claim was dismissed 
by the Didtrict Judge in consequence of the above findings, 
appaaled to tha Ohief Gjurt against the decree in her own 
case. 

An objection was taken at the hearing in the CAist Court 
that the questions raised in her appeal werered* ju Hcaba beeauio 
she had not filed an appeal against the decree in Rahman Bakhsh's 
case. This was over-ruled after a consideration of the prece- 
dents cited by bot)i sides, see pages 102— *104 of the judgment, and 
it was held after an elaborate examination of the evidence and 
precedents that no custom of exclusion of daughters was 
established. Mussammat Fakhr-un-nissa was accordingly 
awarded a decree for a one-fourteenth share under Muhamma- 
dan Law. 

An application for review on both points was subsequently 
filed and was dismissed aft^ a fresh discussion of the question of 
res judicata^ see Malik Buhim Bakhsh v. Mussammat Fakhr-un" 
nissa {^). 

It may be noted here that no part of the property of Karim 
Bakhsh was in the possession of any of the danghters. No 
relief was prayed for in reapeot of any property against them 
nor granted by the Court. 

A careful examination of the plaint and statements of the 
plaintiff, Rahman Bakhsh, in the former case appears to show 
as pointed out in Malik B/dhim Bakhsh v. Mussammat Fakhr-un- 
Nissa (1) that his suit was based on at least two causes of action in 
the alternative and was for different reliefs claimable distinoUvely 
on them. There was some moveable property included in the 
olaim the bearing of which will be noticed hereafter. The word 

(*) 81 P. B^ 1898. 



^AT 1907. ] OIVIL JUDQMENT8— Na 57. 2^ 



canpe of action meaop cTery fact which it is material to be 
proved to entitle the plaintiff to succeed ; every fact which the 
defendant would have the right to traverse— OooJIre v. Otll (*). 

It refers entirely to the media upon which plaintiff asks the 
Conrt to arrive at a ooDolosion in his favour, Ohand Eaur v. 
Partab Singh (»). 

It does not depend on the relief claimed, bat I apprehend 
the reliefs claimed may be looked at in order to throw light on 
plaintiffs meaning in the body of the plaint where it is not 
otherwise perfectly explicit. It is necessary, however, that facts 
pertaining to one canse of action should not be mixed up with 
those properly belonging to another though both are included in 
the same plaint. 

Considering the language of the plaint on this principle I 
take the plaintiffs' suit apart from the claim for moveable 
property to have been of a twofold character in the alternative—" 

(I). To enforce the award and t) h^ve the property 
awarded to himself and his three brothers in acoordance with it 
after supplying certain alleged defects in it ; paras. 2. 3, 4, 6, 7, 9 
and heads of reliefs A and D. 

(2). To partition the property, if the award was w^ 
binding on any one among tho four brothers on the ground that 
daughters were excluded by custom, bat if this was not proved 
among all the issue, male and female, of Karim Bakhsh accord- 
ing to Muhammadan Law : paras. 5 and 8 and reliefs heads 
B^dO. 

Properly speaking the latter suit alone was a partition Suit* 
The former was not, as the Court was required therein not to 
partition the disputed property itself but to enforce the award. 
This suit was one falling under Section 30 of the Specific Belief 
Act. 

The issnes framed by the District Judge also appear to me 
to bear out this view. 

The deoree was one in a'xsordance with the award. The 
alternative on which plaintiff sued for partition under custom 
or law was on the award being not binding at all. This appears 
to be dear from the plaint relief B as well as isstie (4). That 
alternative never arose, for the Court held the sons to be bound 
by the award and divided the property in aooordanoe 
with it. 



(») L. A, 8 0. P., 107. (•) L. B., 15 L A., 166. 



^46 ^l^L JUDGHBN;TB--Na ^7. [ EigoBD 



There is nothing in the plaint to sa^geat the inference that 
the plaintiff asked the Court, if the sward was held binding on 
the sons and not on the daughters to declare that the daughters 
were excluded by custom from all participation in their father's 
property. No such declaration was prayed for and none 
was granted. Relief A was somewhat obscurely worded, but I 
am willing to concede that taken in connection with D, it 
meant to ask the Court to enforoe the award among those who 
were bonnd by it. But to add the words stated above ia 
obyionsly impossible. The Court also never thought so nor 
tried the case on that basis. 

The daughters were proper parties to the case on the award 
as they were said to have agreed to the reference and signed a 
document to that effect. This is not clearly stated in the plaint 
but evidence was adduced and the Court treated it as .included 
within tlie scope of the 3rd issue and gave a finding on it in 
favour of the daughters, holding them to have been duped into 
signing the document. The plaint refers to the abortive pro- 
ceediugs under Section 525, Civil Procedure Code, in which the 
document was also referred to, so the allegation of the daughters 
being parties to the award may well be understood to be part 
of the plaintiffs* case. Thus the impleading of the daughters 
is no criterion that a general partition of the paternal property 
irrespective of the award was the real inteLtion of the plaintiff 
and was accordingly tried. A general partition was prayed for 
in which they were ma4e parties as interested persons, but this 
was to be effected only in the f^vent of the award not being 
binding on any one and failing altogether. I can interpret the 
words *' if not " iu Relief fi and in issue 4 only in this way and 
in no other. 

The claim on the award did not fail but was decreed. The 
Court made no partition but simply gave effect to the award except 
as to three small items of moveable property aggregating Rs. 205 
in value which the aibitrator had omitted to divide^ in regard 
to which the principle adopted by the arbitrator was followed . 

I have omitted to state at the proper place that the combi- 
nation of two causes of action in the altprnaitve in the same 
plaint in respect of the same subject matter is hardly contem- 
plated in the Code of Civil Piocedure, and to my mind is illegal, 
see Mwmrnmai Fatima Begam v. Muhammad Zajcarta (^). If 
ti^if^ view is correct Rahman Bakbsh could not iu the same suit 
claim enforcement of the award and if that was not pQ§aib^ 

Cl) 96 P. fi., 1895. 



Mat 1907. ] CIVIL TODOMfiKW -No. 67. 247 

■ ■ 

partition of the paternal estate tn aooordanee with enstoiwary or 
personal law . The defeot, if it is one is one of jnrlsdiction and any 
finding properly pertaining to the latter claim and canse of actrton 
wonM not be conclneive if the former clBim ak«e wro 
adjndioated on. 

The previons case then stands thns. ^he claim on the 
award was decreed in aeoordance ^ith the award. In that claim 
no question arose whether the danghters ai-e or are not excluded 
by onstom *nd a decidion on the fourth issne was not required, 
and onder the wording of the idroe iteelf it did not ariee until 
the decision on the 3rd issue was adverse to the award altog[«tfaer. 
I have already shown aboire that the issues were rightly drawn 
in this way on the ple^tdings sabject to one reservation to be 
nieiitioned hereafter, I may say that the question of the 
daughter's right was thus not directly in issue in the formw 
suit, and cannot bar the trial of the same issue in tbe present 
suit which is for partition and baeed on inheritanoe. It would 
have been directly in issue had the claim on inheritance in the 
former suit laid in the altmnative in the event of the award 
being held not binding, been tried and decided, which it 
clearly was not. If the decision of the daughter's right was 
considered proper in order to settle all disputes bearing on the 
claim on the award the decision was neveitbeless not required 
to.give effect to that claim on the facts and pleadings of this 
case and the issae would therefore be an incidental and collateral 
one, at best. 

The key to the bolution of the present controversy is, I 
think, to be found in the remarks of the District Judge in the 
former case which I have quoted at length in a former part of 
the jodgment in which he says that though some awards which 
are not bindiog on others could be enforced against those who 
had agreed to the reference, this was an award which could be 
binding on all or none if the daughters had shares by 
inheritanoe. Having laid this down be took up tbe question 
of the rights of the daughters by inberitance which was the 
subject of the fourth issue and came to the conclusion that they 
were excluded by custom. Having thus removed all obstacles 
from his path he went back to the third issue again and held 
that the brothers were bound by tbe ai^nrd and enforced tbe 
award among them. 

In my opinion tbe remarks in question cannot be treated M 

an adjudication of a matter in isfue. No such quefition was 

raised by the pleadings not nes any itsue fismed whether of 

the awaid ^as tct lindirg on tbe canghters, tl e pons oouM be 



248 ^^^^ JUDGMENTS— No. 67. [ toooBD 

bound by it. They were due to a ooDfufiion of thought in the 
mind of the District Judge as to the natore of the claim before 
him and the points expressly or impliedly in issue and an 
omission to pay doe icgaid lo the latler. I have to difficulty 
in saying that they were quite wrong in law for obviously there 
was nothing in the case to take it out of the rule that an 
award is binding on those who are properly parties to the 
reference though others, who are professed parties, are shown to 
have been really no parties and are not bound by it. As I have 
said already the whole property ib dispute was in the hands of 
the sons and none of it with the daughters, so that there was 
no difficulty of any kind in giving full relief to the plaintiff on 
the claim based on the award. The District Jadge himself 
quoted no law supporting the distinction he drew, and in my 
opinion it is wholly unfounded. If we disregard this erroneous 
view of the District Jadge on a point not raised in the issues 
nor involved in the pleadings and brought into the case 
gratuitously and of his own motion by himself the unneocessary 
character of the adjudication on issue 4 and its impropriety 
becomes at once apparent. 

The next question for consideration is are we bound by this 

statement of the law erroneous as it is and the adjudication of 

the fourth issue by the District Jndge which Was the conEeqnence 

of his mistake. For if we have to accept the District Jodge's 

ruling implicitly, some sort, of case may be said to be made out 

for the adjudication being treated as that of a necessary issae 

though even this is not quite clear upon the pleadings. R6t 1 

do not think we can be held to be so bound when the question 

arises whether an issue was a necessary one, the finding on which 

is set up as a bar to a fresh trial of the same issue, the Conit 

has power to examine the pleadings and the facts of the former 

case and the grounds of decision and to see for itself whether 

the issue was a necessary one, or, in other words, whether the 

matter pleaded as res judicata was directly in issue before. For 

this purpose the Court must jndge for itself whether the issue 

was a necessary one with reference to the grounds of adjudication. 

The fact that the Conrt in the former suit thought the issue to 

be a necessary one is not conclusive for few Courte ever oome 

to findings on points that they know or admit to be nnnecessair. 

An erroneous finding of fact or law on a point that was directly 

in issue in a former case may be conclusive but the Court 

trying the subsequent suit has and must have independent 

power of judgment to decide for itself whether a particular 

point was directly in issue before. This is in fact the matter 



Mat 1»07. ] CIVIL JUDQMKNTS— No. 57. 249 



wbioh the parhy Betting up tbe plea of re$ judicata has to 
establish and be has to satisfy the Court trying tbe later suit 
that it is substantiated. Thus tbe power of the Conrt to go into 
the point is ipso facto evident, see Narain Das v. Fatz Shah ('), 
remarks at page 565 ** ne ccBsary " means " necessary for the 
** decisioB of the case apon the ground on which the final 
" decision ultimately proceeds." See also the remarks in Jamuit- 
un»nissa v. Lulf-un-nissa (*), at page 611, thoDgh I do not mean 
by this qnotarion to accept all that was laid dowu in that case. 
Other authorities may be cited in support of the position. It 
appears to me to be beyond question that in trying to find 
out what is necessary with reference to the ground on which 
the final decision in the former case altimately proceeds we 
must have power to question a statement of law like the above 
by the District Judge in the former case which besides being 
wrong is not req uired on the pleadings and that the power is not 
restricted because such statement happens to give an air of 
necessity and relevancy to an issue which is otherwise 
unnecessat'y. In short we must have authority to find out what 
was really necessary. 

If this is conceded as I think it must be, all semblance of 
necessity and directness of the fourth issue with reference to 
the case on the award which was decreed disappears. 

It is argued that the plaintiff in that case wished to put 
an end to all dispute and hence impleaded his sisters who had 
successfully resisted the previous application by another brother 
under Section 525, Civil Procedure Code. I have already 
pointed out that the daughters were properly necessary parties 
to the case on the award as they were sought to be bound 
by the award and evidence was again adduced of their consent, 
but the Conrt found in their favour on this question and the 
suit on the award failed against them, I have also shown that the 
suit on the award could have proceeded against the sons alone 
and was enforced among them in the decree, so that the ease on 
inheritance never properly came to trial. The District Judge in 
the present suit has failed to observe the true character of the 
former suit and to analyse and keep in view the statements made 
in the plaint and the pleadii gs as well as the grounds 
of decision. He is quite wrong when he says the former decree 
was not on the award. He has mixed up the suits of Rahman 
Bakhsh and Mussammat Fakbr-un-nissa. In the latter the issue 
of custom directly arose and there was no question of the award 



(») 157 P. «.> 1889, F. B, (•) i. L. «., VII All, 606. 



250 CIVIL JUBGMENT8-Na 67. [ Bsom 

foeiDg biftdiBg, and thoufi^ ihe two SDits were for ooatenienoe 
sake tried togetber, this dwHnction in palpable. The fact that 
the isaae was a necepsary one in the latter t-nit did not nifilce it 
«o in the former with refererce^ to the ground on which the 
judgment in that suit proceeded. 

To put the matter she 7 t)y tie plaintifi in the former case 
sued (1) to enforce the a wnid pgainst his brother and sisters, 
the latter haying according to his contention consented to the 
reference and (2), if the award failed, to partition property on 
the ground of inheritance, among the brothers only if the 
cnstom set np was proved, or among all the children of Karim 
Bakhsh if it was not. This would be the natural course adopted 
by any ordinary suitor ur.der the circumstances. It never 
occurred to him to ask, under the first head, for a declaration 
about the exclusion of daughters by custom and their having 
in consequence no interest in the paternal property, in case their 
consent to the reference was not established. This is really a 
refinement that did not strike the plaintiff at the time, but is now 
put forward in order to get the benefit of the rule of res judicata. 
But to succeed in the attempt, the point mt)st be shown to have 
been clearly taken or directly involved in the former pleadings, 
which- it was not. 

There remains only one point for consideration which 
though not put forward in the appeal in this court in the former 
case or in the present appears to me to be of some difficulty. 
This is the decision in respect of three items of immoveable 
property in the former suit. They were valued at Rs. 205 and 
wore in the possession of Rahim Bakhsh and Eadir Bakhsh, co- 
defendants. They were divided among the four brothers but 
were not covered by the award. I may mention here in passing 
that there were other properties claimed, but out of those such as 
were proved to exist, viz., ^os., 4, 5, 6 and 7 were disposed of as 
virtually included in the award, can it not be said that the 
partition of these three items of property not actually included 
in the award among the four sons in effect decided that the 
daughters were tttitled to to fhaie ? 

I cannot say that this matter is quite clear, but I am dis- 
posed to doubt f?h( ther it would be right to split the fourth issue 
into two parts and to hold it to be unnecessary as respects the 
first alternative claim on the award and to say at the same 
time that it was partly necessary on account of this claim. ^ 
Neither the Distiict Jtcge i(r tit {aincs titr paid the 
least regaid to this fit all picjeity n ccfisacv^ly put the 



MAY 1907. ] CIVIL JCDftMBOTS-a«a W. 251 



deoiBioo 'i^Arding it on the findipg on the fourth issne. 
The best proof of this is that no reference was ever made 
to this property by connsel at any time in their elaborate 
argnments. Farther, I do not think there . is any necessity 
to refer the decision as respects this property to the fonrth 
issoe as no reference is made to it by the District Judge. 
He never tried the case based on inleritance and went into 
that issne simply in order to see whether there was any 
obstacle to the award being binding. Ho may have meant 
to divide it among the sons simply because they had got 
all the other property under the award. I say this because no 
special reasons are given. 

Apart from this I think if we take the view that this 
property was sued for on the ground of inheritance, we must 
hold that the inheritance was split into two parts, one of 
which was sued for in the alternative in case the award 
failed, and the other, vit,^ this property, in addition to that 
covered by the - award. The joinder of the latter to the 
claim on the award was permissible but not the splitting of 
the claim on inheritance. Waiving this objection as not one 
to be taken cognizance of at this stage, the difficulty still 
remains whether the daughters could appeal from the decree. 
This forms a part of the ground of decision in Muisammai 
FaJchar'Un-nissav, Malik Bahim Bakhsh (*), and Malik BaJum 
Bakhsh v. Mussammat Fakharun-nissa ('), and in the present case 
I see no good reason to recede from the position taken up 
in my former decision. The important bearing of the right 
of appeal on the question of res-judtcata is set forth in 
Malik Eahim Bakhsh V, yfussammat FakAar^un-nissi (*), and in 
8hama$ Din v. Ohulam Kadir (•). Jt is true that the High 
Gonrtfi are not quite unanimous on this qnestioii : See Vitthilinga 
Padayachi v. Vithilinga Mudali {^), Govind v. Dhondbarav (•), in 
which this view is taken, and Bai Ohara!h Ghose v. Kumud Mohun 
DuH Ghawdhry (•), Bhugwanbutti Chowdhran v. Forbes ('), 
where it was dissented from or not followed, but the aathorities 
referred to in the judgments quoted appear to me to be of 
great weight, and particularly the views of that eminent Jodge 
Mr. Justice West iu Bhola Bhai y. Adesang C^), who cites the 
. opinion of the great German Jurist Savigny in support of his 
opinion. I think I am bound to follow the views of the Full 
Bench judgment just cited : see also the opinion of their 

(0 23 P. Ji., 1897. (•) /. L, K., XV bom., 104. 

(•) 31 P. ie., 1898. (•) /. L. «., XXV Cole, 671. 

(•) 20 P. R., 1891, F. B. (') I. L. B., XXVII Oale., 78. 

(•) 1. L,&,,XV Mad., 111. (•) I. L. B^ IX Bom., 76. 



252 ^^^^ JUDGMENTS -No. 67. [ HiowiD 

Lordships of the Privy Ooanoil ia Misir Baghobar Diat v. Skeo 
Bakhsh Singh (»), at p. 444. 

I still find diflBculty in oudorstanding how an appeal 
by the danghter^ in the former suit could have beeu preferred 
or could have been valued : could they appeal on full stamp 
on the value of their shares ? They could have got nothing 
from the Appellate Coart as they had not sued. They could not 
have appealed for a declaratiou for there was none granted 
against them, and th'^y could get none themselves as their obvi- 
ons remedy was to sue. They could not appeal from the 
finding on the fourbh issue which was not embodied in the 
decree. T am not saying that the latter fact has any necessary 
hearing on the question of res-judicata generally, but I am 
here considering only the right of appeal. The learned 
counsel for the respondent quotes Jamni Das v. TJdey Bam (* j, 
but I am doubtful about the correctness of that ruling, 
and it is to some extent distinguishable. Moreover, the suit 
might possibly have been dismissed altogether as against 
the first assignees. The view I take of the matter is that 
the daughters here were pro forma defendants as far as this 
part of the case was concerned, and their only rem edy waa 
by way of a regular suit for their shares. The case might 
be different if a different view is takeu of the bearing of 
the right of appeal, but I think we are bound to accept the 
view that it is essential to the creation of the bar of res 
judicata J have already pointed out, that the award was 
thrown out as against the daughters. The objection 
based on the absence of the right of appeal applies to the 
whole case. 

The rule of res judicata is a wholesome one but it ought 
not to receive an undue extension nor be too stringently 
applied, particalarly in^ India, Misstr Ragkobar Dial v. Sheo 
Bxk'uh Sihg\ ('), at p. 444. A plea of res Judicata is a tech- 
nical objection and may well be met by argnments of the same 
character. It cannot be established on broad general grounds, 
and without a careful analysis, and a critical examination 
of the previous proceedings. Upon such a consideration of 
the former case I am of opinion that the plea is not established 
against the present appellants. At all events it is very doubtful 
whether it is, and if there is doubt, the right to proceed 
should be conceded. The plaintiffs here have a judgment of a 
Bench of this Court giving a finding favourable to them on 



(*) /. L, B.. II Gale., 439. (•) /. L. JB,, XU All,, 117. 



May 1907. ] C31VIL JODGMENTS— No. 57. 25S 

the question of castom, and taking this into consideration, 
and the fact of their being daughters of the lato owner, they 
shonld be allowed to carry on their suits unless the bar 
is clearly and unequivocally made out, and it lay on the 
defendants to do this. 

It is necessary also to point out here that as far as 
Habib Bakhsh, defendant, is concerned, the bar appears not 
to arise at all. He and the present plaintiffs were co- 
respondents in the former suit and their defences were not^ 
adverse to each other but to the plaintiff and the two other 
defendants, Bahim Bakhsh, and Kadir Bakhsh who really sided 
with the then plaintiff. The District Judge has failed to 
notice this and dismissed the suit against Habib Bakhsh also, 
though he states rightly in his judgment that Habib Bakhsh 
in the former case favoured the claims of the sisters. This 
is obviously wrong. It will be seen that I have to a certain 
extent modified my views as expressed in the two published 
judgments in the former case, but this was because I had 
to reconsider the whole case afresh, on the present occasion. 
It was done after a careful analysis of the former pro- 
ceedings. 

T would accept the appeal and, setting aside the decree of 
the District Judge on the question of res judicata, return the case 
to him for a decision on the merits. 

JoHBSTONi, J.— I have some difficulty in accepting the views 2ith Oct. 1905. 
of my learned colleague in this case. I have delayed recording 
my final opinions, and have thought over the case long and 
anxiously, but in the end J find myself unable to see eye to eye 
with him, and I reluctantly suggest that the case be referred to 
a third Judge for opinion. 

The parties in suit are connected thus — 

Mnasammat—— Malik Karim ■ ■— Mnflsammat 

Khanain. Bakhsh. Faiz Bi. 



f~ i i i 1 

Habib Mussammat Massammat MassammatSMQBsaniniat 

Bakhflh. Allah Bandi, Shams- Wali- i;<J4 Fakhr- 

A. un-Dissa, nD-nissa; C^no-nisM. 

B. (deoeased). 



f i » I I 

Bahim Rahman Kadir Mosaamroat Mnasammat 

Bakhnh. Bakhsh. Bakhsh. Diljan, Eajab-un-nissa, 

There are four suits and four appeals by the ladies 
A., B.. 0. and D., raip9 5feivdly. Eioh of them, apart from slight 
V^HJitioas aid pvrtivl reaaaciatieus iu appeal, claims ^^ 



254 CIVIL JCBGMBNTS-No. 67. { Bioobd 



share of the estate of Malik Karim Bakhsb, asser^ng the 
applicability of Muhammadan Law, under which each of the 
four sons is entitled to /y and each of the five sarviving 
danghters j\. 

There have already been three law suits about the estate, 
in all of which the whole of the surviving family of Malik 
Karim Bakhsh have been parties-— first, application by Rahim 
Bakhsb, under Section 525, Civil Procedure Code, to have 
* Aziz Din's award filed and a decree passed on it ; secondly, 
suit by Rahman Bakhsh claiming division in terms of the 
awnrd, i.e., equal division between the four sons- or failing 
this, a declaration whether custom or Muhammadan Law 
applies, and, if the latter, then actual partition in aooordanoe 
therewith, it being asserted that by custom daughters were 
excluded by sons ; thirdly, a suit by Mussammat Fakhr- 
un-nisa for j^ share, Mussammat Wali-un-nissa being then 
alive. 

The first of these suits, the application undei Section 525, 
Civil Procedure Code, was dismissed on the ground tb^it the 
daughters did not give free consent to the arbitration. The 
other two suits were tried together by the District Judge, 
who held that the danghters did not give free consent to the 
arbitration ; that the family followed custom and not Muham- 
madan Law ; that by custom sons excluded daughters ; and, 
in effect, that thus the absence of consent of the dsoghters 
was immaterial ; the pei'sons really entitled to share having 
all joined in the reference. Upon these findings the 
District Judge naturally held the award enforceable, and 
passed a decree substantially in accordance with it. 
Against this decree in her own case Mussammat Fakhr- 
un-Nissa appealed to the Chief Court, which over-ruled the 
Court below, and in her suit gave her a decree for -^f as prayed, 
holding that, it was not proved that custom excluded daughters. 
The other danghters did not appeal. 

The question for decision is whether the plaintiffs are 

barred by Section 13, Civil Procedure Code, from raising the 

question whether they are entitled to share along with their 
brothers. 

There are, of course, certain propositions laid down bj 
my learned colleague in which I fully concur ; but there are 
others from which I am reluctantly obliged to dissent. As the 
third Judge, to whom the case will now go, will probably find it 
convenient to have the points in which I dissent from my brother 



Hay 190^. ] OIVIL JODOMBNTS— No. 67. 256 

Chatterji plainly staled, I will now go throngh bis judgment bit 
by bit and state my own views. 

At an early stage my learned colleegne remarks : ** It 
" may be noted here that no part of the property of Karim 
'^Bakhsh was in the possesRion of any of the dangl iters, no 
'* relief was prayed for in respect of any property against them 
" nor granted by the Court." (This relates to the second suit of 
the three snits described above.) The remark is trae, but I 
do not myself think the fact material or the nse made of it 
legitimate. Later on it is nsed to enforce the snggestion that 
the danghters, apart from Miissammat Fakhr-nn-Nissa, conld 
not bavfi appealed in her case or in Rahman Bakhsh's case. They 
were formal defendants in Mussammat Fakhr-nu-Nissa's case 
and had nothing to appeal about ; but I see no reason why 
they conld not have appealed in the other case. In my opinion 
Rahman Bakhsbs' suit was not wrongly framed according to the 
rules in fon« in India for the framing of suits. I know of no 
law under which it was illegal for Rahman Bakhsh to sue on 
the award and at the same time to implead the daughters, who 
were in opposition to him, and to ask that his dispute with 
them also, should be settled. It is true that the daughters were 
not in possession of any of the property ; but their claims to 
share were over-ruled, and, thoogh the decree did not direct 
them to surrender any property, it did in efPect declare them not 
entitled to share in the estate. It is asked on what stamp they 
would have appealed I do not think I need answer the 
question : I^do not think the circumstance that the amount of the 
proper stamp is difficult to decide has any bearing on the qaestion 
whether they could appeal or not. In my opinion they could 
have appealed, and have asked this Court to hold — 

(a) that the family did not follow oueftom but Muhamma- 

dan Law ; 
(h) that therefore they were sharers ; 

(c) that theiefore, as the Court had held that they had 

not consented freely to the arbitration, the award 
should not interfere with their rights ; 

(d) that the first of the two alternative claims of 

Rahman Bakhsh was thus inadmissible ; and 

(e) that the second claim was sound, viz. partition accord- 

ing to Mnhammadan Law. 

-Rahman Bakhsh had by implication admitted that, if the 

award was not binding and Muhammadan Law applied, the 

property was joint of all the brothers a:2d sisters, the case 

being then one of partition and thus finally the daughters 



256 ^^rVlL JUDGMENTS— No. 67. [ BboosD 

might in appeal have demanded— 

(/ ) that parttiicn under ilvhammodan Low shcvid he 
carried out. 

Tbey did not appeal, and in my opinion tbe matter became 
rea-judtcata against them. 

My learned colleagne's view, in connection with this aspect 
of the case, wonld seem to be that, if Rahman. Bakbsh had 
sned the sisters separately for a declaration that thry had no 
share in the property and had got a decree, and had then sned 
his brothers to enforce the award, the danghters wonld be 
bonnd ; bnt that, as he chose, and the Conrt allowed him, 
to combine the whole thing in one snit, they are not bound, 
because the Court found the award binding and so the question, 
Muhammadan Jjaw versus Custom did not properly arise. 
With much reluctance I 6nd I cannot assent to this proposi* 
tion, which I hope does not mietreprcsent my learned coUeagne's 
position. In my ^iew Rahman Bakhsh viitoally asked tbe 
Court to find for tbe award on two alternative grounds first, 
that tbe danghters agreed to tbe arbitration ; secondly, that, if 
tbey did not, the want of their consent was immaterial, inasmuch 
as they were not sharers under the castom which governed the 
family. (Of course, he also asked in tbe alternative that, 
if the award was not to operate at all, the Court should proceed 
to deal with the estate as a matter of intestate succession.) 
It seems to me that this is the true meaning of the reliefs (a), 
(h) and (c) detailed in my learned brother's judgment, and the 
manner in which tbe District Judge adjudicated on the case 
seems to me to shew that this was so. I recognise the awk- 
wardness and obscurity of the words ** binding on none " in relief 
(6), bat I do net think Rahman Bakhsh meant by them quite 
what my learned colleague supposes. It seems to me fairly 
clear that it never occurred to Rahman Bakhsh that the award 
would be binding as such on the brotheis even if the daughters 
(a) had shares and (b) had not consented to tbe arbitration. I 
think he meant to imply that in these circnmstances (i.e., if tbe 
conditions (a) and (h) held good) the award would naturally be 
treated as inoperative altogether. Thus, in my humble opinion, 
the question Muhammadan Law tersus Custom did arise and 
had to be decided. 

Connected with the above is tbe meaning of issue 3 and 
of the woids *'if not" in issue 4. Issoe 3 ends with the words 
"and to what extent." In my opinion these words do not 
mean ** and on which parties,*' the wording ef the issue pre- 



ilAT 190?. 1 CIVIL JUDGMENTS— No. 57. ^5 7 



eludes this view. The sabstantive words are— "is the 
" award bindiog on all the parties." Tbe issue does oot go oo 
— '**/ no^, then to what extent;" or "if not, then on which 
parties." The woids " urd 1o what Extent" aie either surplns- 
age or they refer to disputes regaiding ceitain specific parcels of 
the estate. It follows that the words " if not '* in isf do 4 ncean 
— **If the awaid is rot biudirg en all, i.e., if »tll the paities 
'* did not make the reference to arbitration with free content. '* 
And thus it becomes clear that the intention of issues 4 and 5 
was to enable the Court to decide the following question— If 
the daughters did not give free coiisent to the arbitration, then 
are they entitled to object to the award ; that is, have they shares 
in the inheritance: that is, dres Uohammadan Law, under 
which they would certainly have a sbaie, apply ; or does any 
custom apply, and does that cnstom give them a share or not? 

In my opinion, where it is reasonably possible to do so, 
Courts should take it that a plaintifF, who impleads all possible 
defendants in his suit; intends to ask for a complete adjudication 
upon all issues that can arise, in connection with the subject- 
matter of the suit, between him and those defendants. Neither 
our Courts nor our petition -writers habitually write with the 
perfect finish of trained lawyers, and I think we should not 
ignore what must have been the intention of Rahman Bakhsh, 
especially as the Court ti'ying tbe case realised that intention, 
saw it embodied in the obscure and slipshod phraseology of 
the plaint, and gave effect to it iu its manner of dealing with 
the case ; especially also as the danghteis, seeing the view the 
District Judge took of the matter as shewn in the issues, did not 
raise any objections and did not insist upon a strict interpreta- 
tion of tbe phraseology of relief (fi). Had they done so, the 
District Judge would certainly have questioned Rahman Bakhsh 
and would, inasmuch as Bahman Bakhsh would undoubtedly 
have said he wanted a complete set|)ement of all questions, 
have made him clear up the obscority in the wording 
of his reliefs. 

I am unable to see how the issue as to the daughters' rights 
in this family to a share was merely a collateral or incidental 
one. To me it seems a substantial issue and one that had to be 
disposed of. It wgb disposed of, and by the decision the daugh* 
ters were told they were not entitled to share with the sons. 
The mere fact that upon this the property was given to the 
sons on the basis of the award and not on the basis of custom 
seems to me in no way to alter the effect of the decision against 
the daughters' rights* 



^58 CIVIL JUDGMENTS- No. 57. [ BtcoKb 

Id 1893 the District Judge laid down the propofiition that 
if the daughters have shares by inheritanoe, the award mnst 
be bindiDg on all or on none;z.e., it cannot bind the sons 
unless it binds the daughters also. Mj learned brother demurs 
to this ; bat in mj opinion even if it can rightlj be said that 
the award, which actually divided op the estate into parcels 
among the sols and allots one parcel to one son and another 
to another, binds the brothers, but that the sisters may never- 
theless be each entitled to -f^ of the estate as a whole, this 
does not to my mind alter the fact that a competent Court bns 
found definitely that the sisters are entitled to no share and has 
passed a decree which it arrived at, and could only have 
arrived at, after recording that definite finding. I do not agree 
with my learned colleagae — if this is really his meaniog 
— that because Rahman Bakhsh might have asked simply for 
a decree to bind only those bound hy the awaid, therefore even 
though he asked for a complete settlement of his dispute with his 
sisters too, he rauit be taken to have got only an adjudieatioo 
binding on those bound by the awai'd as such. 

I assent to the general proposition that an unnecessary 
expression of opinion by the District Judge on a point of law 
would not bind us in dealing with a question of resjudiccUa^ nnd 
I agi-co that the aforesaid proposition of the District Judge 
regarding the award was unnecessary, and perhaps erroneous ; 
but even if we over-rule it, I think the question of the rights 
of the plaintiffs-appellants is resjudicaia^ 

1 have said that the District Judge's proposition is perhaps 
erroneous. In theory, as a matter of academic logic, it may be 
erroneous. It may be said that each daughter could get her 
Xth i^hare out of each brotber^A allotted share ; leaving the 
brothers' shares untouched in relation to each other; but in 
practiee it would be almost impossible-^perhaps quite impossible 
go —to deal with the matter. Perusal of the details of the award 
makes this quite clear- 
Passing on, I think I need say nothing about the 3 parcels of 
property valued at Bs. 205. They have not been referred to 
in appeal, and I understand my learned colleague, though he 
discusses the matter, does not suggest any action with refereooe 
thereto. I agree ap to the importance of the i|Ueaiion of 
light to appeal in cases like the present If the position «f the 
daughters in BHhman Bakhsh's case was such that they could 
not appeal, probably nothing decided in that case could be 
res judicata against them; but I have already shewn why 1 



MAY 1907. ] CIVIL JUDGMENTS-No. 67. 2B9 

think thej could have appealed. I also agree that the plea of 
res judicata, heing a technical plea, can be met by merely technical 
pleas, and that the bar must be nnmistakably made ont before 
the right of a plaintifl to proceed can be denied ; bnt here I 
think the bar is made ont. 

I agree with Mr. Shadi Lai that Section 13, Civil Procedure 
Code, should not be used so as to work hardship; but here ^the 
appellants have had ample opportunity of proving that they 
were entitled to shares. They failed in 1893 in the first Court 
and never appealed ; and thus, apart from the technical side of the 
controversy, they seem to me to have no grievance. The litigation 
of 1892-93 was clearly a trial of strength between the brothers 
and the sisters, and the sisteVs were wowted. 

Finally, as to the peculiar position of Habib Bakhsh, it is 
said that he was, in the suit by Rahman Bakhsh of 1892-93, 
siding with the present appellantu against Rahman Bakhsh, 
Rahim Bakhsh and Kadir Bakhsh. This appeals to be true. 
Rahim Bakhsh and Kadir Bakhsh were certainly against 
the daughters, and therefoie as legarc^s them the mere fact 
that they were co-defendants with tte daughters is, in my 
opinion, no bar to the application of the doctrine of rei iudicata. 
And even aa regards Habib Bakhsh I think he can now take 
his stand on what was decided in 1893. He has done so— see 
para. 6 of his written statement in Shams-on-nissa's case 
and the opening sentence in his written statements in the other 
three cases. No doubt he discusses further points in case Section 
13, Civil Procedure Code, should be held inapplicable, but this 
is immaterial. 

A difference of opinion having arisen between the learned 
Judges of the Division Bench (Chatterji and Johnstone, JJ.) 
thecase was referred to a third Judge by the following order : — 

Chattbrji, J.— There being a difference of opinion on a *^Qth October \Wh. 
point of law the record will be placed before the learned Chief 
Judge in order to be referred to a third Judge. 

It is not my object to restate the reasons for my opinion on 
the question before us nor to offer any criticism on the grounds 
of my learned brother's judgment, but 1 think he has not quite 
oorrectly apprehended my meaning on certain points, and I think • 
it right to point this out here in order that I might be properly 
understood. 

I have held upon a careful analysis of the plaint and plead- 
ings in the former suit of Rahman Bakhsh that such suit was 



260 OI^II' JUDGMENTS— No. 67. [ Rkobd 



based on two perfectly distinct caases of action in the altema* 
tive, (1) on the award and (2) for partition if the award was 
not enforcible. The daughters were proper parties in both 
claims, in that on the award as they were said to be parties to 
the reference — vide issue 2, word " parties " and finding thereon, 
and also partly on issue 3, pages 403 and 405 of Mr. Harris* 
judgment ; in that for partition as they had an ostensible right 
under Muhammadan Law. The decree of Mr. Harris was 
passed on the award and in the judgment after laying down that 
this award would be binding on none if daughters were entitled 
to succeed under Muhammadan Law, he went on to say that " it 
may be that if the daughters are found to be governed by custom 
" this award may be perfectly binding on the sons • • ♦ "— .. 
see lines 37 and 38, J*t^ge 405. This showed to my mind that 
he went into the question in order to decide whether the award 
could be held binding on the sons, havintr laid down, what I 
think is a perfectly Ynx)ng proposition, that the award oould not 
be binding otherwise. The plaintiff, however, did not raise any 
such contention or ask that the rights of the danghters by cus- 
tom might be gone into, (if they were not consenting parties 
to the award) and decided and the award thereafter enforoed 
among the sons if the daughters were found not entitled. I 
therefore said that this issue raised by the District Judge him- 
self and not by the pleadings was not a necessary issue, nor the 
finding on it res judicata as the award could be enforoed among 
those who were parties to it without reference to the daughters 
who, it may be again noted, had admittedly no property in 
their possession. The issue thus was at best a collateral or 
incidental one. I did not say as my learned brother states in 
his judgment that Rahman Bakhsh oould not have so framed 
bin suit on the award as to include a prayer for declaration that 
the daughters whether consenting to the award or not had no 
right to the paternal property by custom. Nor did I say that it 
was necessary for him to claim such relief in a separate and 
prior suit. I do not think my language admits of any such 
iaterpretatioa ; bat if it is capable of being so understood I take 
this opportunity to make ray meaning clear as above. Wbat 
I have said is that Rahman Bakhsh in fact did not ask for any 
Buch relief, and that the language used by him in the plaint and 
the pleading do not rationally admit of this construction. The 
point for consideration then is whether I am correct in m y 
interpretation of that language. 

It follows that I do not mean to say " that because Rahman 
" Bakhsh might have asked simply for a decree to bind only thos e 



May 1907. ] CIVIL JUDGMENTS— No.n57. 26l 

^boand by the award, therefore even thoagh be asked for a 
•• oomplefe settlement of bis diepnte with bis sisters too, be mnst 
'* be taken to bave got only an adjudicaticn bit ding on tboFe 
" boand by tbe award '* wbicb my learned brother seems to 
think 1 wished to say and to wbioh be oanuot agree. 1 simply 
hold that Rahman Btikbfih never asked for a complete settlement 
of this kind with reference to the aword, and that the language 
used by him does not sopportany soch theory bat nrgatives 
it. His intention most be gathered from tbe words he actaally 
uses, and not attached to the latter on considerations of geneial 
convenience, etc.. 

As respects the right of appeal, I did not mean that no 
appeial oonld he fled bat that no relief coald be giveh aA it did not 
really lie. I opine that the appellate Coart, if it acted in strict 
accordance with law, and my anrnment necepsatily proceeds on 
this hypothesis, wonld have paid with respect to the enforcement 
of tbe award that it could not interfere aH the nwnrd was good 
and enfoiDible among tbe soup, and tbe daughters were not 
required to surrender any property, and as respects the opinion 
on tbe daugbtera* right by custom, and I hold that it is nothing 
more, that opinions are not tbe subject of appeal. There was no 
declaration given against the daughters and there was none to 
be set aside on appeal. The daughters' remedy was by suit to 
recover their shares if any, and they would in all probability 
have been referred to such suit. 

As regards Habib Bakhsh I would point out that the 
former judgment was one in personam and res-judicata is a plea 
inter partes, Habib Bakhsh was ranged on the same side as the 
daughters, the present plaintiffs, and admitted their right and 
no issue arose between them and him. He cannot therefore 
raise the plea now merely because the former judgment was 
adverse to the claims of daughters supposing its legal eflFect to 
be really so. 

JoHNSTOKi, J.— The office should now lay this before the 31^ October 1906 
Hon'ble Chief Judge. I have nothing more to say, except that, 
apart from certain apparent misapprehensions on my part of 
Mr. Justice Chatterji's views, my views on the main points in the 
case are wholly unchanged. 

The judgment of the third Judge was deliverd by — 

Rbid, 0. J.— This appeal, and Civil Appeals 855 of 1901, lo^;^ ^^^^^ jgog^ 
958 of 1901 and 145 of 1902, were referred to me, in consequence 



262 OiVIL JDBGMBNTS-No. 57. [ BKoab 

of adifferoDoe of opinion between the learned Judged before 
whom they were originally argned. 

The appeals have been argued at considerable length, and 
I have had the advantage of reading the judgments of 
my brother Chatterji and of my brother Johnstone. 

The Court below found that the euits were barred by 
Section 13 of the Code of Civil Procedure, by reason of a finding, 
in a previous suit between the same parties, that the plaintift- 
appellantfl were not /entitled to share in the property in suit, 
left by their father, the parties being governed not by Muham- 
madan Law but by custom. The facts have been dealt with in 
the judgments of my brother Chatterji in the present cases and 
in Mussammat Fakhr-un-nissa v. Malik hohim bahhsh (^) in 
MaWe Eahim Bakhsh v. MussammcU Fakhr-un-ntssa (}) and 
need not be repeated in detail. 

The relief sought in the previous suit, by one of the 
brothers, was divided into 10 heads, including a general prayer 
for relief and for costs, and ran as follows : — 

The plaintiff sues that it be declared— 

(a) Whether all the parties to suit are bound by the 
award ? If not, are any so bound ; if so, who P 

(h) If tlie award is to be binding on none then for a 
decision as to whether parties are governed by 
custom or by Muhammadan Law P 

(c) If it be decided that shara has to be followed and 

daughters entitled to a share, then all the estate be 
divided among all the sharers, and plaintiff be 
given his |th share by partition and possession. 

(d) If it be held that daughters are not entitled to a 

share, then plaintiff be put into possession of his 
fourth share by partition. 

(e) If the award be upheld, then defendants Nos. 1 to 3 

be ordered to pay three-fourths mortgage of the 
house in Gali Gullian which oame to plaintiffs 
share, and plaintiff be put into possession of the 
property awarded to him by the arbitrator. 



(>) 23 P. B., 1897. (•) 31 P. B., 1898. 



May. 1907, ] CIVIL JUDGMENTS- No. 67. 268 

(/> The Sardarakhti of Bagh Ismail Ehaa ia Elajpar au4 
of Bagh Malik Sabib Jan and expenditare on makan 
ditoankhana, referred to in paragraph 3 of the 
plaiiit which are joint of all the brothers, be 
partitioned between plaintiff and defendants Nob. 1 
and 2, and plaintiff be pat in poBsession of his 
separate share. 

(g) If held by the Court that the property in (/) is 
part of estate of deceased Malik, then partition, 
&c., be granted in accordance with above reliefs. 

(h) Account be taken from defendants Noe. 1 to 8 of 
income and expenditare of joint estate, and profits 
be distribnted. 
(t) Other reliefs. 
(j) Costs. 
The issues bearing on the question of res^udicata have been 
set out in the judgment of my brother Chatterji, and it is 
noticeable that whereas part of the relief sought was a declara- 
tion whether the a^^ard was binding on all or any of the parties 
and, if binding on none, a declaration whether the parties were 
governed by eastern or by Muhammadan Law, the 2ad and Srd 
issuen framed were whether the award was binding on all the 
parties to tbn suit and to what extent, and, if not, whether 
Muhammadan Law or custom governed the parties. 

The authorities cited are the following : — 

For the appeUatUa— 

Narain Da$ v. Faiz '8hnh (i), in which it was held that no 
matter can be said to be directly and substantially in issue or to 
have been finally decided unless a decision thereon is necessary 
for the decision of the case upon the ground on which the final 
decision ultimately proceeds. 

MuBsammat Fatima Begam v. Muhammad ZoA^ana ('), in 
which it was held that a plaintiff, who alleged two distinct 
causes of action, the first being an agreement to sell, and the 
second a subaeqaetit sale whish gave him a right of pre-emption, 
if it wer^ not rendered nugatory by the alleged agreement, could 
obtain relief on one only, aa his claim to pre-empt comld be con- 
sidered only if his claim on the agreement was defeated : 
Muisammat Fakhr-un^nissa v. Malik Bahim Bakhsh (') and 
liaUk Bahtm Bakhsh v, Mu8samnuUFakhr'un'nis8a(*),m which it 

1. ■ 
(•) 167 P. «., 1889, F. B. (•) 28 P. U., 1897. 

(•) 96 P. B., 1895. (•) 81 P. B^ 1898. 



264 CI^I^ JUDGMUNTS-No. 57. [ RBoqpj) 

was held that in the previons suit by the brother, EesponfL^Dt to 
this appeal, the Rieters need not have been impleaded, hayijig no 
property in sait in their possession, thongh it was doabtleea 
convenient to implead them, and that the issue as to their right 
did not necessarily arise in those cansen of action npon the 
pleadings of the impleaded brothers. Lahhu v. Btra Singh (>), 
in which it was held that a practical test for determining 
whether a matter has been directly and substantially in issne in 
a previons suit, is furnished by effecting a separation of the 
discussions and findings on the various groups of issues dealt 
with in the judgment, and that, if, after eliminating all but one 
such group, the judgment still remains intelligible and in itself 
sufficient for the adjudication of the so it, and the decree is in 
entire harmony with it, the matter so dealt with was directly 
and substantially in issue. 

Mula V. Oanda (^), in which it was held that a qu(«tion of 
jurisdiotion , taken by the Court «ii6 mo/o and not put in issne, 
was not res judicatn : OooJee v. Oill (•) and Chand Kaur v. 
Pariah Singh (*), in which cause of action whs defined, as stated 
by my brother Chatterji. 

Jamait-un-ntssa v, Lutf-un-nissa (*), in which a majority of 3 
to 2 held that if a decree is, upon the face of it, entirely in favour 
of a party to a suit, that party has no right of appeal, the decree, 
and nothin]f elne, baing appealable. Mahmnd, J., held that a 
.finding on an issue adverse to the party, in whose favour the 
decree wrs, might constitute the finding resjudiccUa and conse- 
quently make it appealable. Bhola Bhai v. Adesang (^), in 
which it was held that a decree which was not appealable 
could not make an issue, framed in a suit, from the decree in 
which an appeal lay res judicata : 

Oovind V. Dhondbatar (') to the same effect. 

Vithilinga y.Vithilinga (*) to the same effect. 

Somasundara v. KuUndaivelu (*), in which it was held that 
a oo-sbarer, who was made a defendant in a suit by his oo-sharers 
because he would not join as plaintiff, was not bqund by the 
decision, being unable to benefit by it or to appeal, and pfA 
having had the conduct of the suit in his hands. 

Ofmni Lai v. Mu8$ammat Amir Bibi (**>), in which it was held 
that a suit by a widow for possession of her ahare of her husband's 

(') 41 P. a, 18W. (•) /. L. «„ /X Bom, 75. 

(•) 92 P. ft.. 1902, F. B. C) L L, B., TV Bm^ 104. 

(•) L. ft.. 8 0. P. 107. (•) /. L. B., XV Mad,, 111, 

(♦> L. «., 16 I. A. 150 (•) /. L. ft., XZVin Mad., 457. 

(•) I. L.a, VII AU., 60C, P.B. ('<»; 39 ^. ft., 1900, 



Mat 1907. ] CIYIIi JUDGMBNTS-No. 67. 266 



property, which slie bad allowed ber step-Bons to cultivate, oa 
condition of their giving her maioteoanoe oot of the profits, 
was not barred by Section 13 by reason of her having been 
miide a party to a suit by a poreon who bad obtained a 
morjtgage from the step-aonp, and had sued for poisession, the 
qqeetion of her right to poesession on non-payment of roainte* 
nance not having been raised or decided in thatsait. 

Jogal Ktshore y. Ohammu (^), in which it was held that, 
where two rival pre^mptors filed identical suits for pre-emption 
and decrees wet e passed giving one pi e-emptor preference, the 
ansuccessf nl pre-emptor was not barred from appealing against 
the decree, in the suit in whioh he wsts plaintiff, by reaaon of 
his failure to appeal against the decree in the salt in which 
he was defendant. 

For the retpondmUi— 

Krishna Behari Bay v, Banwari Lai Boy (*), in which it 
was held that where a material issue has been tried and 
determined between the same parties in a proper snit, and in a 
competent Coort., as to the statas of one of them in relation to the 
other, it cannot be again tried in another Fait between them. Theii 
Lordships followed a previous decision in Soorjee Monee Payee v. 
tiuddoimind MahapaUer (*), in which it was said, after reference 
to bection 2, Act VUI, 1859, ** Their Lordships are of opinion 
that the term * cause of action ' is to be construed with reference 
'' rather to the substance than to the form of action, and they 
^* are of opinion that in this case the cause of action was in 
*' sabstanoe to declare the will invalid on the ground of the want 
*' of power of the testator to devise the property he dealt with 
''But, ^venif this interpretation were not correct, their Lord- 
*' ships are of opinion that this clause in the Code of P;*oc9dure 
** would by no means prevent the operation of the general law 
'' relating to res judicata, founded on the principle nemo debet hie 
" vexani pro eadem causa. This law has been laid down by a 

" series of cases in this country It has probably never been 

« better laid down than in a case which was referred of 
**Oregory v. Moksworth (^), in which Lord Hardwieke held 
" that where a qoestion was necessarily decided in effect, though 
" not in ezprcjfls terms, between parties to the snit, they could 
" not raise the same question as between themselves in any 
'' other suit in any other form ; and that deoision has been 



(M 8S P. R,'i9yS, F. B. C) 12 8. L. ft.. 804, P. 0. 

(•) 9 £ A., I OoZ., U4 P. a <*) 8 -^'^^ W. 



266 ^^^^ JUDaMBNTS— Na 57. [ Bioou> 

'* followed by a long coarse of deoiBioDB, the greater part of 
** which will be found noticed in the very able notee of Mr. Smith 
*' to the case of the DachesB of Kingston." 

Ghbtnd Ohunder Koondoo v. Taruch Ohander jBofa(^), in 
which it was said, '* We haye therefore to see whether the rifi^ht 
*^and title which is the subject of claim in this suit was not 
*^ the very same right and title which was in issue between the 
^* same parties, and determined in the former suit. When once 
** it is made clear that the self-same right and title was snb- 
** stantially in issue in both suits, the precise form in which the 
'' suit was brought, or the fact that the plaintiff in the one case 
*' was the defendant in the other, becomes immaterial." 

Lachman Singh ▼. Mohan (<), in which a majority of a 
Full Bench held that certain defendants could appeal from a 
decree which merely dismissed the plaintiffs' suit for possession 
*^ as it at present stands," an issue as to the defendants' title 
having been decided against them in the body of the judgment, 
in which it was held that they were entitled to possession as 
tenants under an unexpired lease. Dtoarha Das ▼. Kameshar 
PfOiod ('), in which it was held that, where a claimant-objector 
makes the judgment-debtor a defendant to his suit under Section 
283 of the Code of Oivil Procedure, and does not limit his claim, 
he claims both in form and substance against the judgment- 
debtor a declaration of his title to the whole of the property, the 
title to which is in issue in the suit : that a decree in such suit, 
declaring the liability or non-liability of the property to attach- 
ment and sale in execution of the creditor's deorecy must 
necessarily, unless the suit be decided on a ground not involving 
the question of title, decide and determine all questions of title 
on which the parties to the suit could rely, and that such 
decision would operate in any future suit between the parties as 
reijuddeata on those questions of title, though sooh subeequeftt 
suit might relate to property not in question in the suit under 
Section 283, provided the "second suit is within the jurisdiction of 
the Court which decided the first suit. 

Jamna Das v. Udey Bam (*), in which it was held that, 
where plaintiffs as second assignees of a debt, sued fcn^ recovery 
of the debt and impleaded their assignors, the original debtors 
and oertsin persons whom they alleged io have been prior 
assignees of the debt, but tio have lost the benefit of their 
assignment through non-fu1filai3ut of tha oaiitious ou which 



(«) /. 1. «., m Oal.. lis. F: B, (*) /. L. R., Xnt AU^ 69. 
<•) Z. L. R^ U Ail., 497. -P. B. (•) /. li. ft.. XX/ AiL, 117. 



iiiY JOOj. i CiviL JUDGMBNT^No. 57. 267 



it was made, and the Court gave the plaintiffs a decree against 
tbeoiiginal debtors, the fit st assignees conld appeal, inasmuch 
as the decree, thongh not against them by name, oecessBrilj 
implied a fiuding that the asfiignment to them, upon the basis 
of ithich they lesisted the plaintiffs' claim, had became 
void. 

Bat Oharan Ohose v. Kumud Mohun Dutt Ohowdhry (^), in 
which it was held that an appellate jndgnoerit in a suit operated 
as res'judicatay although no second appeal to the High Court 
lay in that Fuit and a second appeal would have lain in the 
second suit, Section 13 of the Code, containing nothing to 
indicate that the judgments in the two suits must be open to 
appeal in the same way, in order that the decision on any 
issue in the earlier, c-an bar the trial of the same issue in the 
later suit. 

Phugwanhutti Ohaudhrani T. Forbes (*), in which it 
was held that the course of appeal doe4 not affect the question 
of reS'judicata. 

Ananta BaJacharya v. Damodkow Makund (^), in which 
it was held that, where the decree depends on an issue, the 
finding on that issue effects res-judicata^ although the finding does 
not appear npon the fare of the decree. Wasdeo ▼. Bup Oha/nd (*) 
in which it was held that, inasmuch as a decree for partition is 
a joint declaration of the rights of all the co-sharers interested 
in the property of which partition is sought, each oo-sharer in 
entitled to obtain prsctf ssion of the si are allotted to him under 
the decree, whether he be plaintiff or defendant. 

Ohesa v. Ba/njii (*), in which it was held, by a Full Bench, 
that, when a common qnestion, such as the tenure of a village 
Community arises between the members of a community and 
one of saeh members sues the rest, the determination of soch 
common qoestiou will not bind the whole of the defendants 
as res'judicatay so as to bar the question being raised among 
themselves in a subfiequent t^oit, nn]e£>e they have been distinctly 
at issae on the point in the suit, and acting as opposite 
parties and the order made is cne affecting the rights of the 
defendants among themselves. 

Nihal Singh v. Chandm Singh (•), in which it was held 
that, where there is a conflict of interest between defendants 



(M /. L. B., XXV Oal., 671 . (•) 23 P. R. 1905. 

(•) I. L, B., 28 Coi., 78. (•) 121 P. B.. 1880, F. B. 

(') I. L. B, 18 Bow., 26. (•) 140 P. B. 1800, 



^8' CIYIL JODOMENTS-No 67. C Racbmh 

inter as, an adjudication of rights may be res-Judieata between 
tbeiP as well as between the plaintiff and tbe defendants. 

Was deo v. Bup Chand (^), ic wbieb it was held that, as a 
decree for partition is a joint declaration of the rights of all the 
co-sharers iiiterested in the property of which partition is songht 
each co-sharer is entitled to obtain possession of the share 
atlot^d to him nnder the decree, whether he may be a plain- 
tiff or a defendant. Sheikh Khoorshed Bdssein v. Nnhbee 
Fatima (*), in which it was said " we are of opioioB that 
<* a decree ftr partition is not like a decree for money or for 
'* the delivery of specific property, which is only in favour 
'' of the plaintiff in the soit. It is a joint declaration of the 
^ rights of persons interested in the property of which par4^- 
''tion is Bonght, and, having been so made it is nnneoemary 
*' for these persons who are defendants in the snit to come 
** forward and iustitate a new snit to have th^ same rights 
*' declared nnder a second order made. It mnai be taken 
" that a decree in snch snits is a decree, when properly drawn 
" np, in favour of each share-holder, or set of share-holden, 
*' having a distinct share." 

Bm8$un Lai Bhookul versas Ohundee Doss (*), in which it 
was held that, where A had bronght a snit against B for 
arears of rent and 6 admitted the som claimed, but contended 
that the rent was dne for a larger' area of land than that 
specified in the plaint, and an issne was framed on snch con- 
tention and decided fi gainst B, a snbscqnent sait by B to 
have it declaied that a sum of mon^y eqnal in amonnt to tbe 
snm paid on admipsion in the foimer soit, comprised the rent 
doe on all the lauds held by him under A, was barred, being 
rei-judicata. 

KaH Krishna Tagore v. Secretary of State for India in 
Council (*), in which it was held that, to apply the law of 
estoppel by judgment under Section 13, Act XIV of 1882, it 
must be seen what has been directly and substantially in 
issue in the suit, and whether that has been heaid and finally 
decided, and that, for this purpose, the judgment must be 
looked at, the decree being usually insufficient for the purpose 
inasmuch as, according to the Code, it only states the relief 
granted if any, or other disposal of the suit, without the ground 
of decision and without affording information as to what 
may have been in issne and decided. 

(^)23 P. B., 1906. (») I. L. B., 4 Oal., 686. 

(•) /. L. B., 3 Col., 661. (♦) 1. L. B., i6 Cal, 173, P. 0. 



Mat 1907. 1 CTVIL JUDGMKNTfl.-No. 6{r 269 

Phundo V. Jangi Noih (*), aud oth( r anihoiltieg for 
the establtsbed rule tbat where a Jadioial decision, pleaded 
as cOLBi\iui\jsg fes-ivdicafa m nil icpptcte fulfil*, the itqulro- 
ments of Section 13 of ibc Code of Civil Prc( ednn», aid it has 
become final, it is immaterial whether it ie cr is not 8oui;d 
law. 

In my view of the law and tie facts it is unnecepparj 
to consider the anthorities above cited on the qne^tion whether 
the right of appeal or the conrse of appeal affects the qnebtion of 
res-judicata* 

The case for the plaintiff in the previons suit was that 
the award bound all or some of the defendants. 

The property in snit was in fOEseshion of the male defend- 
ants. The female defendants were impleaded becanse they 
were alleged to be bcnnd by tie award, and becanse tbey wonld 
be necessary parties on the ifsnes which woold arise in the 
event of the award not binding the male defendants. If the 
award bonnd the latter the iFfne as to cnstcm or Muhanna* 
dan law did cot arise; ina^nrc eh as the male parties to the 
soit conid not re-open issues which had been concluded by the 
award, and the awaid had adjudicated on Iheir respective rights 
in the estate. 

All that the Court below had the reff re to do in the previous 
suit was to pass a decree against the male defendants in the 
terms of the award, on the finding that it bound them, and 
the decision en the question of status with reference to Muham- 
madanlawor custom was ultra nVe^, inasmuch as that issue 
did not arise: Mussammat Indra Boi y. Qadu Dhar ('), and 
Mula V. Oandu (^). Of the authorities cited above for the 
defendant-respondents, the case of Krishna Boy v. Bunuari 
Lall Boy (^) does not help them, inasmuch as the rule laid 
down therein applies only to cases in which the issue tried 
was material and arcfeon the pUi dirge. The suHfancr of 
the suit was to establish the award and obtain a decree 
in the terms thereof against iho^e botindlyit, and the otLer 
issues would arise only on a findirg that the award did uot 
bind the defendants in possession of the property. 

Oobind Chvnder "Koondco v. Totvck Chvtider Bofe (•), 
is inapplicable because the question substantially in issue 
previously was whether tie mahs in possession were bound 
by the award. 

(M i. L. B., 15 All, 327. (>) 92 P. R., im.2, F. B, 

(») 29 P, «., 1896. {*) I. L. J?., 1 Cal., 144, P, C, 

(•) /. L. B., 3 Cai.,.W5. 



270 CIVIL JUDGMENTS.— No. 68. [ EiCOBD 

Shzh Charan Lai v. Ragu Nath O^jb inapplicable because 
♦he parties to the award conid not go behind its terms, if 
binding on them. 

Wasdeo v. Rup Chand ('), is inapplicable because the 
qoestion of t)>e rights of the females did not arise on the 
finding that tl e award bound the malep, and the same may be 
Bflid of Ohisa V. Banjit ('), NiJial Singh v. Chanda Singh (*), 
Sheikh Khoorshed Hossein v. Nahbee Fatima (^), and Kali 
Krishna Tajone v. The Secretary of State for India in Council (•). 
For these reasons 1 concur with my brother Chattcrji in hold- 
ing that the snbseqnent snits weie not bnr red by Section 13 
of the Code of Civil Procednre, and in decrpeing tfe appeals 
and setting aside the decrees below, and in rr ma ndirg the 
snits nnder Section 662 of the Code of Civil Piocednre for 
decision in accordance with law. 

Conrt fees on the memoranda of appeal will be lefnndcd 
and costs will be costs in the cause. No question as to property 
not dealt with by the award was argned before me. 

Appeal alioved. 



BiTiBioN Smi. 



No. 58. 

Before Mr. Justice Rattigan. 

GHULAM MUHAMMAD,— (Plaintiff),-PETITIONBR, 

Versus 

JANGBAZ AND THE MUNICIPAL COMMITTEE of 

JULLUN])UR,—(Defbot)aws),— RESPONDENTS. 

Civil Revision No. 1340. 

Municipal CommitUe^Diseretion of, to taJce action uvder Section 120 ^— 
Suit ly person aggnered for injunction -^JurisdicHofi of Civil Court io 
restrain action of liunicipaUiy^ Punjab Municipal Act, 1891, Section 
120 E, 

AUhongh under the powers given by the Legislatore a local body 
may act perfectly hon4 fide and intta vires in ijignin^ a certain 
order, still if that order injuriously affectA the rights of any person 
the latter can undoubtedly appeal to the Civil Courts for protection 
and to that protection he will be entitled if he can prove that the 
order m question was made wantonly or without any reasonable 
justification. Therefore, where a Municipal Cmnmittee, at the instance of 
a discontented neighbour, issued a notice under Section 120 E of Act XX of 
[1891, direct incr the plaintif to close his old drain and to make a new one 



(») /. L. B., 17 All., 174. (•) 140 P. B., V ^0. 

(•) 23 P. B.. 1905. (•) I. L. R., 3 C f., f 51. 

C) 121 P. B., 1880. (•) /. L. H., 16 C./., 178. P. 



Mat 190?. ] OtVIL JUDGMENTS— l^o. 6S. 271 



in its plaoe along a difEerent alignment, yrithont any proper enqniry 
as to whether the existing drain was a menace to the health of the 
people sarroanding it or the general public. 

Held, that the Oiril Conrt should under each oircumstances interfere by 
injunction to restrain the Committee from carrying out its order 
which was inequitable and pretended to proceed on an alleged danger 
to health which was in no way proved. 

OUivani V, Rahimiulla Hur Mohamedi,^), Diimodar Diav. Municipal 
Oommiitee D$lhi (•), Badri Das v. Municipal Oommittee, Delhi (3), and 
Duke J» Bameswar Maiia (i), referred to. 

Petition far revision of the order of Captain B., 0. Boe, 
Divisional Judge, JvMundur Division^ dated iOth January 
1W6. 

Shab Nawaz, for petitioner. 
Sheo Narain, for respondents. 
The judgment of the learned Jadge was as follows :— « 

Rattiqan, J.— The Municipal Committee of Jnllandnr by I8th Pehy* 1907. 
notice issued under Section 120 B of Act, XX of 1891, (as 
amended by Punjab Act, III of 1900) directed plaintiff 
to oloee an old drain and to make arrangements for a new 
drain along a different alignment. Plaintiff appealed from 
this order to the Commissioner of the Dividion ; but his appeal 
was rejected, and he now suos for an injunction to restrain 
defendents — (who are the said Committee and two other 
persons) from giving affect to the directions contained in the 
notice. 

The District Judge, while holding that the Committee 
acted without mcda fides , granted plaintiff the relief prayed 
for on the ground that the order was not equitable and that 
'Mt pretends to proceed on alleged danger to health which 
** is by no means proved." The District Judge further found 
that the old drain had existed for over 25 years, that plaintiff 
had acquired an easement in respect of it, and that defend- 
ant No. 2 (who is married into plaintiff's family and resides 
next door) ** wants to extinguish that easement, and finding 
'* he cannot do so at law, shelters himself behind an order 
" of the Committee." 

From the order of the District Judge, defendant No. 2, 
appealed to the Divisional Judge, who accepted the appeal 
and dismissed plaintiff 'b suit on the ground that as the 
Committee in issuing the order under Section 120 E, had 

C) I. L. B., XII Bom., 47^ (») 90 P. B., 1898. 

(•> 27 JP. A, 1901. (*) /. L. B., XZVI Cal., 811 . 



272 CIVIL JUDGMENTS.-No. 68. t Bkcoed 



not been proved to have acted ultra vires or mala fide 
or witboat anthority the Civil ConriB had do jarisdiction to 
entertain the present sait. 

Plaintiff applies to this Conit to revise this latter order 
and on his behalf his learned cotinsel oontends that Civil 
Courts have uadoDbted jarisdiction to interfere in snch 
oases when the order of the local anthority is unreasonable, 
malicious, wanton or oppressive. It is contended that in the 
present instance the order impugned is obnoxious on all those 
grounds, and that there was no possible justification for the 
Committee in issuing it. Mr. Shah Nawaz also oontends that 
the Divisional Judge has erred in dismissing the suit without 
coosideiing whether the order was or was not reasonable. 
In support of his contentions the learned oounael relies 
upon Ollivant v. UahvUtulla Nur Mohamed (i), at pages 474 and 
494 ; Vamoiar Das v. Municipal Committee^ Delhi (^), at page 90, 
and Badri Pas v. Municipal Oommittee^ Delhi, (•). In reply Mr. 
Sheo Naraiu urges that this being a petition for revision 
this Court is bonnd by the finding of the Lower Courts 
on the facta ; that there is no proof whatsoever that the 
Committee acted mala fide or maliciously : that on the contrary 
there is evidence to show that the order was issued in 
consequence of the committee having reason to believe that 
the existence of the drain was '* a menace to health " i that 
in his plaint the plaintiff made no allegation that the order 
was oppressive, wanton, capricious or unreasonable and that 
the Civil Courti should be chary of interfering with orders 
passed by local authorities in exercise of the powers conferred 
upon them by the legislature. The learned pleader cited 
Badri Das v. Municipal Oommittee Delhi (^), and Duke v. Bameswar 
Alalia (*), as authorities in favour of his arguments. I 
quite agree that the Civil Courts should not interfere, save 
on good and substantial grounds, with the orders 6i Local 
Bodies passed in the bond fide exercise of the discre- 
tionary powers conferred upon them by the legislature. I 
also qaite agree that in cases such as the present the findings 
of the Lower Courts should (except, again, for substantial 
reuBous) be accepted by this Court when adjudicating as a 
Court of revision. But while admitting this, 1 think that 
H Cooit is bound in all tht^se cat-es to see whether the dis- 
cittionary powers vebtcd in local authorities have been, in 



P) I, L B., Xll Bern., 474. (•) 90 P. R,, 1898. 

v«) 27 P. B., 1901. (*) /. L. B., XXri, Cal., 811. 



liAY 1907. ] CIVIL ;rUl>GMllNT6.— Ko. tt. 278 



any partioalar case, exercised bond Ade and reasonably* I 
do not mean io say that the Court is to o^er-mle the 
orders of the looal .aathority simply because it may itself 
consider that the order impugned was unneoeFsary or open 
to objection. That is not the true test. Befoie a Courtis 
justified in interferiug it must find that the order in queeticm 
was given mala fide, or that it was ul^9ia t;tm or oppressiTO, 
wanton or altogethei' unreat-onable. Very wide powers are 
given by the Legislature to local authoritiee and with the 
ttxeicibe of (Lese powfers, if exercised reasonably, the Courts 
rightly refase to interfere. But if in any case the penN)B 
aggrieved tbeieby can satisfy the Goort that the ord^ was 
one for which there is on the record no justifioation whatever, 
I consider that it is alike the right and the duty of the 
Civil Court to interpose its authority to prevent the looal 
body from abusing the powers conferred upon it (see Damodofr 
DasY. Mumcipal Oommittee, Delhi, (0, at page 90). In the prsseot 
case the Dintrict Jodge after himself inspecting the spot 
carao to the conolasion that the order issued t^ the petitionee was 
inequitable and that it pretended to proceed on an alleged danger 
to health which was in no way proved. As the District Judge 
foriher points out in his judgment there can be no doubt that it 
was owing to the machinations of defendant No. 2, who 
is inimieally disposed towards plaintiff^ that the order came 
to be passed. And that this is so, and that the Municipal 
Committee are not themselves really interested in this case 
is, I thipk, apparent from the fact that the only person who 
appealed from the order of the District Judge, granting plain- 
tift's prayer for an injunction, was the said defendant No. 2. 
The Municipal Committee, who were co-defendants in the 
suit, accepted the District Judge's finding and order. There 
is moreover absolutely no trustworthy evidence to show 
that plaintiff's drain which has been in existence for over 
25 yea^rs has endangered the health of the public or of his 
neighbours, and no reason is given by the Municipal Com- 
mittee for ordering its closure. Under these circumstances 
i think the District Judge was right in giving plaiutiff the 
relief for which he asked. The Divisional Judge has not 
attempted to discuss this aspect of the question and 
has reversed the order of the District Judge simply on 
the groand that the Committee had not been shown to have 
acted Mala fide or ultra vires. This is an entirely erroneous 
view of the law. A looal body may aot perfectly bond 



(>) 27 P. B., 1901, 



J^iS4 ^^^i^ Jnj)QMBNTS.-No. 69. [ Biooftb 

•fde and intra vires in issniDg a certain order, bot if thai 

, order iDJnriously affects the rights of aoy person, the latter 

pan andonbtedly appeal to the Civil ^ Courts for protection 

and to that protection he will be entitled if he can prove 

.that |;h9 or^er challenged was made wantooly or withoat 

any reasonable jostifioation. In the present case 1 can upon 

.the materials before me come to no other conclusion than 

that ^the Municipal Committee issued the order at the instance 

(4 defendant No. 2 and solely for his benefifc and without 

any proper inquiry as to whether the drain was a menace 

to health. Had the Committee really been of the opinion 

that the existence of the drain endangered the health of the 

peti^oner's neighbours or the public, I have no doubt that 

they would have themselves appealed against the order of the 

• District Judge. 

This being the view which I take of this case I have 
no hesitstton in setting aside the order of the Divisional 
Judge, who dismissed the suit upon the erroneous ground 
' that in such cases the Civil Courts have no jurisdiction to 
question the orders of the local authorities. ,The respondent 
Jangbaz Kban must pay the costs of the proceedings in this 
Court and in the Lower Courts. 

Application allowed. 



Full Bench 

No. 59. 

Before Mr. Justice Beid, Mr, Justice Uoberison and Mr. 
Justice Lai Chand. 

GOKAL CHAND AND ANOTHBtt,— (Plaintifi's)— 
APPELLANTS, 
ApniLLAn 8mi. ^ Versus 

RAHMAN AND OTHERS.— (Dbpendants),— RESPONDENTS. 

Civil Appeal No. 616 of 1906. 

Mortgage ^Non-payment of eonsiieraiion according to agreement'-' 
Jncow^plete transaction ^ Lien— 

''Hetd by the Foil Bench that in the abeeooe of a ipecifio oontraot 
postponing payment, failare to pay full oonsideratioa as Agreed apou 
whether to the mortgagor or to a prior incambraaoer after scofa payment 
hall bSea dencanded by the mortgagor avoids the mortgage and destroys 
the mortg4gee*a liea aad right to poisoasioa, eveu on subi^qtiiut .jaiar 



i 



23rd July 1906. 



May 190r. ] OIVILfJUDGMttNTS.-No. 60. 2^5' 

of the no paid ooneideratiOD, it being immaterial whether the non-payment 
has or has not cansed inconvenienoe or loss to the mortgagor. 

Ah Bakhah v. 8hama (»), Chandan Lai v. Nihal (•), dangal Singh v. 
Jumdan (*), Qopal 8ahai v. MvsBammat Hvsaain Bibi (♦), Saudagar Bingh r. 
8(mU Ram {•), refexred to. 

Qom«88 ^. Mela Bam («), dissented from. 
Further appeal from the decree of Major 0. 0. Beadon^ 
Divisional Judge, Eoehiarpur Division^ dated 23rd March 1906. 

Harris for appellaots. 

Bodhraj Sawhnej for Respondents. 

This was a reference to a Full Bench made by Ghatterji, J., 
to determine whether a moitgage with possession where for 
some reason or other a portion of the consideration money 
specified in the deed remains unpaid is capable of enforcement 
and carries lien with it. 

The Order of reference by the learned Judge was as 
follows :— 

Chattbbji, J.— In this case the consideration for the mort* 
gage, dated 9tb April 1900, was mostly money to be pikid to 
previous mortgagees and creditor. One of these items was a 
snm of Bs. 93 payable to Ghanan Shah. All the mortgage 
money was paid, bat Ghanan Shah's debt, which was secnred 
by two deeds, conld not be paid in full. One deed for Hs. 
68 was paid off and the remaining amount in the mortgagees' 
hands, Rs. 25, was insufiScient to redeem the other mortgage. 
The money remained with the mortgagees and now they sue 
after the lapse of about five years for possession of the land '- '.'^'^ ^^ ^ 

under the terms of the deed, offering, if necessary, to pay the 25 
rupees to the mortgagees. 

The suit has been thrown out by the Divisional Judge q& 
the ground that there was to complete moitgage as the plain- 
tiffs did not pay the full amount of the mortgage money but 
kept back Ks. 25 which they ought to have paid to the mort- 
gagor, if it was insufficient to redeem the other mortgage to 
Ghanan Shah. He has followed Qopal Scihai v. MusMamvia^ 
Bussain Bibi and others (^). . .^ 

The rulings on the questirn as to the right of tii&mort-, 
gagee under the mortgage where for come rfpson or other a 
portion of the mortgage money specified in the deed, rmnaiiifl 
unpaid, are conflicting. See AUa BaJesh and another'v. Bkaikka 

(») 163 P. B., 1882. (•) 100 P. B., 1889. 

C*) 163 P. B., 1882, Note. C«) 108 P. «„ 1906. 
(»)17 P.B.,188« (•) I«P.B.,1884. 



276 C<^^ JUDOICBNTB.-No. 59. L Si'COAt 



and OMCther (^)t Gopal 8ahat v. Mustammai Huaain Bibi (^), 
and Saudagar Singh v. Bant Bam (*), on the one hand and on 
the other Oomess and another v. ^ela Bam (^) and the judgment 
of Mr. Jostice Chitty in Civil ReTision No. 355 of 1906 
whieh I nodertt^^nd is supported by a Division Bench 
raliDg of which I have not been able to obtain the psrtionlars. 
The weight of authority is in favour of the view propounded 
in the first set of rulings, which is, that the mortgage is in that 
case wholly avoided and carries no lien with it. I am myself 
not free from doubt as to the correctness of this opinion 
and the point is an important one, which freqocvntly comes up 
for decision. I regard the law on this point as in an unsatis- 
factory state as far as this province is concerned, and think that 
it ought to be clearly propounded by a Full Bench. 

I accordingly refer the question to a Full Bench. It is 
suflSoiently eet ont in the foregoing judgment. 

I leave on record that after hearing counsel I over-rnle 
the grounds of appeal relating to the capacity of Rahman, 
respondent, to affect a valid mortgage of his minor broth^s 
share, and hold that he has no such power and that the minor 
has not in any case received full benefit from the mortgage. 

The Full Bench reference arises only in the cape between 
Bahman and the mortgagees. 

The following opinions were recorded by the learned 
Judges constituting the Full Bench :— 

Mk #a6t». 1907* Bitn, J. — The question referred is the effect, on a mortgap;e 

with possession, of failure by the mortg^agee to pay off the 
prior incumbrances, payment of which constituted part of the 
mortgage consideration : Oome$ v. Mela Bam (^), and Civil 
Revision 385 of 1906 have been relied on for the appellant as 
authority for the proposition that in fpite of failure to pny 
the whole cotisideration promptly the mortgagee was entitled, 
in the absence of a special contract to the oontraiy, to posses- 
sion, the remedy of the mortgagor being a suit for damages 
for breach of the contract to pay the consideration. £lsmie, J., 
who was a party to the Judgments in Ala BaJchsh v. Shama (>), 
and Oovwif v. Mela Bam (*), distinguished the latter ease 
from the former on the. ground that in the latter there was 
no contract as to the time for payment, and tender of the unpaid 
balanoe was made within l a ^^prima facte reasonable time.'' 

(») \bl P. R, 18S2. (») 108 r, B., 1906. 

(•) 100 P. Jl., 18S9. ^♦) 16 P. i?., 1881. 



May li07. ] 6IVIL JUDGMKNTS-No. 5*. ^7^ 

Plowdea, S. J., drew ai aa !h dlsfciintioQ, anl hel 1 th \t f *ilare . 
topj^y p^o^lp^ly afford 3d n^ defence to a saife by a mortgagee for 
posseesion, ooapled with tender of the oonsideration doe. In 
Ciyil BeyisioQ 335 of 1906 Chitty, J., distingaisbed the faots from 
those in Ocpal Sahat v. Muisammat Hussain BiH (})%^^ that the 
mortgagee in the 1906 case undertook to pay off certain prior in- 
onmbrancee and the amounts so payable were not to pass 
through the mortgagor's hands, and no time was fixed for these 
payments. The learned Judge held that the mortgagors oonld 
not plead that the mortgage was incomplete merely because 
the prior incumbrances had not been paid off, and they had 
themselves paid some of them. I regret that I am tinable t9 
concur in these expositions of the law. Prior incumbrancers 
are not bound by the contract between the mortgagor and a 
puima inoumbraaoeri and th3 fularj of the LiUjr t j pay off 
prior iQoumbran3e3 expose 4 the morbg^igor to the risk of suits 
by prior inoumbraaoora. In my opiaion the rule applicable 
is the same whether payment to the mortgagor or to a prior 
incumbrancer is contracted for. In either case the mortgagor 
is entitled to prompt payment, and failure to pay promptly 
avoids the mortgage. The rule contended for by counsel for 
the appellant would deprive the mortgagor of the benefit to be * 

derived by him from the mortgage, tn's., the realisation of money 
or the freedom from the claims of prior incumbrancers ; and in 
my opinion, the mortgagee cannot put the mortgagor to the 
risk of inconvenience by delay in payment without losing 
the benefit of his contract and his right to possession. The 
mere undertaking to pay a third party does not constitute 
paymeut,ilk Bakhsh v. Skama (*), and Ohalan LaU v. Nihal (•), 
Mangal Singh v. Jindan (*), Qopod Sahat v. Mussammat Hutsain 
Bibi (*), Saudag ir Singh y, Sant Bam (•), are authoritj for 
the conclusion that delay in paymiot, either to the m)rtg<ftgor 
or to a prior iacumbranoer, after such payment has been 
demanded by the mortgagor, avoil^ the mortg^ga and destroys 
the mortgagee's liea and rig lit t) pjs33sstoa even on subsequent 
tender of the unpaid considdration, in the absence of a speci* 
fie contract postponing paymeot, it being immaterial whether 
the delay has or has not caused iacoavenienoe or loss to the 
mortgagor. This is my answer to the reference, and the result 
admittedly is that the appeal fails and is dismissed with oostSi 
no other point having been left undecided by my brother 
Ohatterji, who made the reference. 



J 



>) 100 p. R^ 1889. (>) 158 P. B., 1888, Not$. 
;•) 163 P. a., 1882. (•) »7 P. B., 1888. 
(•) 108 P. B., 1908. 



5^*^ OlVIL'JUDaMBNTS^No.60. C 

Hih Feby. \WI. Bobibtsoh, J.^I agree io the reply to the reference. 

There may be oases in whioh the oonsideration for a mort- 
gage is^ in whole or in part, an undertaking on the part o£ 
the mortgagee to take the discharge of prior incnmbranoes 
on his shonlden. In snch a case the result might be diffemit. 
But where the oonsideration is cash and a certain pcurtion of 
the money is left with the mortgagee for prompt payment 
to a third person, failure to pay such sum within a reasonable 
or specified time in my opinion voids the mortgage* With 
theee remarks! conenr in the reply of -my brother Beid to 
the Fsferenoeb 

ISA teby. 1907. Lal Obahd, J.— I agree that failure to pay the consideration 

money as agreed upon whether to the mortgagor or to a 
prior incumbrancer avoids the mortgage. I further consider 
that in the abseuoe of any express and direct stipu- 
lation in the deed of mortgage postponing payment for a 
specified time it will be presumed that payment is intended 
to be made immediately or within a reasonable time accoi ding <^ 
« to the facts and circumstances of each particular case- With 

these remarks I concur in the answer given to the reference by 
my learned colleagues and in dismissing the appeal with 



Fall Bench. 
No-eo- 

Before Mr. Justice Chatter ji, O.LW , Mr, Justice Robertson 
and Mr. Justiee Battigcm. 
JALLA AND OTHERS,— (Dipbhdahtb),— APPELLANTS, 
AiffULAn Sira. { Verstu 

QEHNA AND OTHERS,— (PLAnrrnrrs),— RESPONDENTS. 
Civil Appeal No. 53 of 1906 . 

VaUtaUon of suii^Suit to dtelare an dUenation qf land to b« not binding 
aflsr ali9nor*B diath-^Value for pwr^poie qf further appedl^Punjah Courts Act , 
1884, Hfction 40(b). 

BMt by the Fall Bench that for the purposes of Section 40 (b) of the 
Pniijab Ooarti Act, 1884, the valae of a soit for a declaration that a sale 
by a male proprietor of ancestral agricultural land would not be binding 
after tue alienor's death, is the value of the land calculated at thirty 
tbnee the ie?eime^ and not the amount of the ooniideration of the sale in 
diipate. 



Mat 1907. ] dflL JUDQMMrM-^Na eo. ^(f^^ 



Further appeal from the decree of A. B. Mariineau, Bsqtdref 
Dimsumal Judge^ Lahore Division^ dated 19th October 1904. 

Doni Ohand, for appellant. 

Tirath Bam, for respondents. 

This was a reference to a Fnll Bench madd b^ "ficSbertson 
and Battigan, J J., to determine the value for ptirposes of 
Section 40 (b) of the Punjab Oonrts Act, 1884, of a suit 
fot a declaration that a sale of ancestral agrionltoral land 
by a male proprietor would be void after the alienor^B 
death. 

The facts of this case are as follows ^-^ 

Plaintiff sned for a declaration to the effect that a sale 
of land effected by their father in favor of defendants 2 
and 4 by a deed of sale, dated 8th November 1900, for an 
alleged consideration of Bapees 400 8l\0Qld not affect their 
reversionary rights. 

The first Conrt dismissed the snit with costs, but the 
Divisional Jadge on appeal reversed this finding and deoreed 
the claim as prayed. Defendants preferred a fnrther appeal 
to the Chief Goort ; but as the subject matter of the suit 
was agricultaral land assessed to land revenue, which 
amounted to Be. 1-12*0 only, the plaintiff contended that 
no further appeal lies. Thereopon the question whether nnder 
the circumstances of the case a farther appeal lay to the 
Chief Coart under Section 40 (1) (b) (t) of the Punjab 
Courts Act, 1884 as amended, was referred by the learned 
Jndges of the Diveicr Benct to a Full Bench. 

The judgment of ibe Fall Bench, so far as is material for 
the purposes oi tim report, was delivered by— 



BattioaVi J.— Our answer to the reference is that the Ifith June 1906. 
rule as laid down in BaJchu v. Jhanda (}) is correct 
and that in accordance therewith it mu^t be held that no further 
appeal lies in this case, the value of the land for jurisdietional 
purposes being, under the rules made nnder Section 8 of the Suits 
Valuation Act, less than Bs. 250. 



0)14SP.fi.,lWi. 



i$0 <^^^^ JUDOMBNTS-No. ei. [ Bicobd 

Fnll Bench. 

No. 61. 

Before Sir WilUam Clark, Kt, Chief Judge, Mr. Justice Reid, 

Jfr, Justice ChcUterji, CJ.B., Mr. Justice Robertson, 

Mr. Justice Kensington, Mr. Justice Johnstone, Mr. 

Justice Rattigan, Mr. Justice Chitty and Mr. Justice 

Lai Chand. 

QAKGA BAM,— (Plaihtiff),— APPELLANT, 

Versus 
DEVI DAS,- (Defendant),- RESPONDENT. 

Civil Appeal No. 1021 of 1906. 

Legai praetitionera^Bach fee — Payment to he made contingent on 
iuecesi — lUegal cmd tmproper contract — Puhiic policy — Contract Act, 1872, 
8§eUon 28. 

Held by a majority (Chatter ji and Lai Chand, J J., dissenting) that 
agreementi between legal practitioners and their clients making the 
remnneration of the legal practitioner dependent to any extent whaterer on 
the result of the case in which he is retained are illegal as being contrary 
to pnblio policy, and legal practitioners entering into sach agreements are 
therefore gnilty of professional misconduct and render themselves liable to 
the disciplinary action of the Ooort. 

Per Lai Chand and Chatterji, JJ.y contra that the practice of receiving 
back fee is neither opposed to public policy nor improper as regards a legal 
practitioner, other than members of the English bar, enrolled under the 
Legal Praotitioners Act, 1879. 

Further appeal from the decree of the Divisional Judge of 
MuUan Division, dated 4th June 1904. 

This was a refereoce to a FdII Bench made by Chatterji and 
EeDBUDgtoP, J J., to determine whether it is legal and proper 
for a legal practitioner to make his remnneration in a case 
contingent on the snccesa of the case. 

The incidents which cansed the consideration bj the Ooort 
of the qaestion of the propriety of the back fee system in the 
Punjab were as follows : 

On an application having been made to restore the above 
appeal dismissed in default, it appeared that the counsel retained 
by the appellant did not appear at the hearing on account 
of his baok fee not having been deposited. Thereupon the 
question of the legality and propriety of the back fee system as 
prevailing among the legal practitioners in the province was 
reierred to a Full Bench. 



Jom 190r. ] CIVIL JUDOMtNTS-Mo. 61. 281 

The order of the DiviBion Bench (O^afcterji and Kensington, 
JJ.) referring the question of law to a Fall Bench was as 
follows >- 

Chattsbji, J.—Tn onr opinion if the nrderptanding heiween 14^^ Siay 1906. 
Mr. Morrison and his client that the former was to have his hack 
fee deposited with him before he would argne the appeal, is not 
opposed to pchlic policy aid to ihe iiadilions of the bar to 
which Mr. Morrison belongs, the client was clearly in fault in 
not making the deposit^ and there is no suflPcient gionnd for 
readmitting the appeal. A Full Bench jadgment of this Court, 
Beechy v. Fatz Mahomed (^) suppoits Mr. Moirifon's view that 
the understanding is not improper or illegal on which he acted in 
declining to appear at the previous hearing. But if, as some 
recent authorities held — vide In the matter of a Pleader of the Chief 
Oowrt of the Punjab (*)— the opinion of the Full Bench is wrong, 
Mr. Morrison was not justified in declining to appear, though 
he may be excuBcd if he was misled by that opinion, and bis 
client would have a fair ground for restoration uf his case. 

A reference was lately made on this point to a Full Bench 
which failed, becauf^e it tranppired subpequently that there was 
no question of back fee inyolved in that case. It clearly is 
iuTolyed in the present instance, and we accordingly refer it to a 
Full Bench. 

Upon the reference to the Full Bench the following judg- 
ments were delivered :— 

Glabk, C. J.— I take it that the question referred to the Full 2Qth Nov. 1906. 
Bench is the general one. 

Whether it is legal and proper for a legal practitioner to 
make his remuneration in a case contingent on the success of the 
case. 

The case has been argued oo this general question and it is 
desirable that an answer should be given to this general 
question. Mr. Grey and Mr. Sheo Narain have assisted the Court 
as amid curiae and argued the case. Mr. Grey supporting his 
own conviction on the subject arguing that such conduct was 
illegal and improper. 

Mr. Sheo Narain for the sake rather of assisting the Court, 
than as supporting his own personal opinion, has argued that 
SDch conduct is neither illegal nor improper. 

0)6P.B.,187«, r.B. (•) 69P.il., 1904. 



figs OIYIL JUDGM BNTg--No, 61. £ . fiK0|O 



The ihanks of the Oonrt are due to the able manner in 
which these gentlemen have argued the case. 

I nnderetand that in Lahore it is usual for the back fee (t . e. 
the fee, payment of which is contingent on success) to be paid 
to the legal practitioner before the deoipion rf the case, and 
that he refunds it to the client if the case has not been successful 
that cuteide Lpbrie the bpck fee frequently remains with the 
client or is deposited with a thiid paity. The point, however 
is not material to the decision of the question before us. 

The question divides itself at once into two branches, its 
relation to barristers and other legal practitioners, respectively. 

As regards barristers the Pull Bench ruling in Orey v. 
Lachman Las (^) decided that barristers practising in the country 
continued to be bound by the usages and rules of etiquette which 
members of the Bar of England have to observe. 

It follows as A corroUary of that decision that as it is 
improper for a barrister in England to be paid fees contingent 
on success, it is also improper in this country. 

As regards other legal practitioners the question may be 
considered in two aspects : 

(1) Whether an agreement to take fees, of this kind is 
illegal as being opposed to public policy. 

(2) Whether though the agreement is not illegal, yet 
it is so undersirable that it should be taken notice of and treated 
as improper. 

It is to be observed that as regards the former aspect, it does 
not follow that becaose an agreement cannot be enforced, it must 
therefore be considered improper. 

For instance, though an agreement by a barrister with his 
olient for payment of fees cannot be enforced there is notiiing 
improper in his making such agreement (the terms of the 
agreement being unobjectionable). 

It would be necessary, therefore, for an adequate determina- 
tion of this reference to decide something more than simply that 
the agreement was illegal, it would be necepsary to determine 
whether it was so improper that it should be noticed and put a 
stop to. 

This brings me to ihe second aspect and shows that in either 
ease it will be necessary to determine the question of the 
pitipriety of the agreement in addition to its legality. 



(«)61P.B.,1896. 



Jim 1807. ] OIVIL JUDGMENTS-^ffo. 61. f^ 

An agreement legal in itself may be so improper tb«t the 
oontrolling authorities may take notice of the oondact of the 
parties to the agreement. For instance, an officer of Government 
pleading limitation to a jnst money claim might obtain the 
dismissal of the suit against him and yet be punished by 
Qovemment for having availed himself of a perfectly legal plea. 
Similarly, there would be nothing anomalous in a legal practitioner 
succeeding in a suit on an agreement to pay a back fee and yet 
being held to have been gailty of grossly improper oondnct in 
the discharge of his professional daty. 

Having made these preliminary remarks I will now proceed 
to consider whether an agreement of the kind under consideration 
is illegal. The point is very fully disoassed by Sir M. Plowden 
in Beechey v. Faiz Muhammad {}) it turns upon the question 
whether it is opposed to pablic policy that a legal practi- 
tioner should have a pecuniary iaterest in the success of the 
case he condocts. The question is discussed on page 43 and 
subsequent pages in an elaborate and exhaustive manner, which 
must command careful consideration from even those who differ 
from his coaclusion, and the conclusion arrived at by him is as 
follows :— 

** The rule then that I am prepared to assent to is mei^y 
" a negative rale, namely that an agreement between pleader 
'^ and client regarding the remnneration of the former for his 
" professional services is not void as opposed to pablic policy, 
^ merely because it contains a stipulation that the pleader is to 
'' be paid an additional sum by the client on condition of his 
'' conducting the case to a snccessf ul issue. 

*' Such an agreement I would hold to be primd facie lawful, 
'* but subject to the qaalification, that the bargain is a fair on% 
*' and not such as it wonld be inequitable to enforce, that is, 
" (to borrow the words of the Privy Council) not ' extortionate 
*' ' and unconscionable : ' that it is not of a gambling and 
" speculative character : that it is not open to any each objection 
'* as would invalidate the agreement if made by a private 
" person aapplying funds to maintain the litigation, that is, 
'' tending to promote unrighteous litigation : and lastly, that the 
*' particular issue or event on which the right to the future 
'* payment is contingent, is not of such a nature that it would 
'* be improper to permit the pleader to have a pecuniary interest 
'' in bringing that event about." 

0) 5,P.&, 1878, F.fl. 



384 OIVIL JUDGMKNTS— Ho. 61. I BroouT 



Sir M. Plowden then on page 51 proceeds to oonsider the 
authorities on the sabjecfc and finds that the authorities support 
his view as stated above. 

I will now consider the authorities bearing on the subject 
that have been bronght to my notice, and first Bt regards our 
own Court. 

In re Alt Muhammad Mukhtar (^). This was a case in 
which a mukhtar had engaged to undertake all the expenses up 
to final appeal connected with a Civil case in consideration of 
receivino^ half the net proceeds of the litigation. I consider this 
quite a different class of agreement from the one under 
consideration. I will discass the subject under the next authority 
quoted. 

In the matter of a Pleader of the Chief Court of the Punjab (*). 
This was the case of a pleader entering into agreement with a 
client to conduct ceri>ain cases for him on condition of receiving 
a share in the result of the litigation. The litigation being, as I 
understand, for possession of land. 

The pleader admitted that his conduct was improper, his 
apology was accepted and his conduct ruled to have been higly 
improper, and the judgments relied upon were Moung Htoon 
Oung {^), Inthe matter of an advocate of the Calcutta High 
Court (♦), and In re Bhandara (•) which will be considered 
later. 

I am dispo&ed to think that a condition to receive a share 
in the result of the litigation is different^from a condition to be 
paid a fee contingent on success. 

A share in the result of the litigation, means, in the ordinary 
meaning of the terms, a share in what is being sued for, if the 
soit is for land, it would be a share of the land ; if for moveable 
property a share of the moveable property ; if for money , as 
money ca^nnot be ear-marked, it would no doubt be only for a 
share of the sum decreed, but that is owing to this peculiar 
characteristic of money. 

A fee is something different from and independent of the 
subject of litigation. 

To illustrate the point, a back fee may be made contingent 
on a suit being dismissed, or on an accused being acquitted, 

(>) 111 P. B., 1891 («) 21 W. B., 297. 

(•) 69 P. U., 1904. (*) 4 Oal., W. y., Oiv. 

(•) 8 Bom., L. a, loa. 



JuMi 1907. ] OIVIL JUDGMENTS— No. 61. 285 



it ooald in these oases hardly be a share in the result of 
litigation. 

If there were no difference, then the ruling in the matter of a 
Pleader of the Ohief Gourt of the Punjab (») goes directly contrary 
to the Full Bench ruling in Beechey v. Faiz Muhamad (*). 

The former agreement is much mor* akin to " ohamoerty " 
than the latter. 

The latter is for the wages for service to be done, and 
it is none the less wages because the fee is made in part, or in 
whole, contingent on snccess. 

In other undertakings also wages are often made partially 
or wholly contingent on success, e. g., where they take the form 
of a share of the profits of the undertaking. 

The former is (to put the matter in a somewhat exag- 
gerated way to better illustrate my meaning) an arrangement 
by which the legal practitioner is to share in the spoils of a 
venture in which he is made a co-sharer. 

I am quite willing to admit that the reasons which forbid 
the one transaction apply also to the other transaction, but 
generally in a minor degree, the nrain difEerence being that 
the share of the result of litigation agreed upon is generally 
larger than a back fee, and is necessarily proportionate to 
the value of subject of litigation, whereas the back fee may 
be and often is independent of the value of the subject 
of litigation— (e. ^., where it is contingent on obtaining an 
acquittal). 

The above are the authorities of our Conrt, the authorities 
of other Courts are, first, as regards the Calcutta High 
Court : — 

Moung Etocm Oung (•). In this case the advocate had 
agreed for a share of the result of the litigation. t.?ouch, 
C. J., said : ** But the qupstion to be considered now is not 
" whether the agreement, which, it is admitted, was made, 
" is contrary to public policy and therefor© void, but whether, 
" looking at all the circumstances of the case, it can be 
" said that entering into such an agreement by the Advocate 
" is a sufficient reason for suspending his license "—he then 
hold that there was no doubt such an agreement was improper, 
and though there might be rare cases in which such an 

(») 69 P. B., I90i. (•) 5 P. R., 1878, P. B. 

(•) 21 W. R., »97. 



286 ^^^^^ JUDGMENTS -No. 61. 



agreement woald not be improper, they were so rare that 
Gonrts shoald not allow snch agreements. The gist of the 
raling I take to be that sach an agreement, thoagh 
not illegal perhaps, was yet improper and shoald be pro* 
hibited. 

In the matter of an advocate of the Calcutta High Court (l). 
This was the* case of a Barrister-at-law making an 
agreement to Hhare in the resalt of litigation. The barrister- 
at-law admitted that his oondact had been improper and 
the only qaestion was one of pnnishment. There was no 
qaestion of the legality of snch an agreement. 

The Judges held that it was improper for an advocate 
or pleader to stipalate with his client to share in the result 
of a litigation. 

The Bombay decisions are — 

Shtvram Hart v. Arjan (•). This was a suit by a pleader 
on an agreement contingent on saocess. The Jadges directed 
the suit to be tried, remarking, apparently for the benefit 
of the Court that was to try the suit, that they oousidered 
the claim high and felt no diRpoaition to enooarage agree- 
ments which gave pleaders a personal interest in the litigation 
of their clients. 

ParshramVamanv, Iliramin Fatu (•). The decision was 
similar to above, it was held that suits on such agreements 
lay, and that the suits shiald ba decided according to their 
peculiar circumstances. 

In re Bhandara (*). The advocate in this case had mis- 
conducted himself in other matters, and in punishing him 
for those matters the learned Chief Justice recorded his 
opinion as follows :— 

"I consider that for an advocate of this Court to 
" stipulate for or receive a remuneration proportioned to the 
" results of litigation, or a claim, or otherwise, is highly 
" reprehensible, and I think it should be clearly understood, 
" that whether his practice be here or in the mofussil^ he 
«• will by so acting offend the rales of hig profession and 
" so render himself liable to the disciplinary jurisdiction of this 
" Court." 



i' 



») 4 Col., W. N. Civ. (») /. L. B.. nil Bom., 418. 

•) I.;^. R-, VBom., 258. (♦) 8 Bom., L. IL, 102 F. B. 



JPKB 1907. ] CIVIL JUDGMBNTS— No. 6l. ^87 



The onlj Madras decision qaoted is — 

Achavi Param Nath v. Ganty (^) ; this quotes a circular of 
tbe Sadar Adalat of 1853 prohibiting pleaders from making 
oontraots for professional remuneration contingent on the 
success of the suit and held that a pleader could not enforce such 
contract. 

As regards the Allahabad High Court- 
Sir M. Plowden on p. 51 of Beechey v. Faiz Muhamad (•), 
refers to two Allahabad, authorities as showing that they 
did not hold that such agreements were illegal. ' 

Before us copies of certificates required to be filed bj 
legal practitioners in that Court have been produced. These 
show that the legal practitioners must certify that th»y 
have not taken and will not take any fee contingent on the 
success of the ca^e. 

There is therefore no authority that such agreements arc 
illegal. 

The mearing of " opposed to public policy ** in Section 
23 of the Contract Act is discussed at p. 110 of Pollock*8 
" Indian Contract Act " and the authorities there quoted show 
that the tendency is against the extension of the doctrine of 
•* against public policy." 

Though authority is wanting, I am disposed to think 
that the agreements now under discussion are opposed to 
public policy and therefore void, but it is not necessary to 
come to a finding on the subject with reference to my 
finding on the second of my propositions stated above, 
namely : 

" Whether, though the agreement is not illegal, yet it 
" ie so undesirable that it should be taken notice of and 
** treated as improper." 

Wo start with the fact that the Punjab is, probably, 
the only place in India where such agreements are declared by 
authority to be permissible and where the execution of such 
agreements is common. 

They are not permitted in England and we have seen 
that they are prohibited in Madras and Allahabad, and 
disapproved of in Calcutta and Bombay. 1 have found that 

(*) /. L. R., ni Mad,, 188. (•) 6 P. R., 1S78, #. B. 



2gd OIYIL JUDQMBMTS-No. 61. [ Biooft» 

tbey are forbidden to barristera and wbat is forbidden to 
barriaterfi should a fortiori be forbidden to other legal 
practitioners. 

Whether as a matter of fact sach agreements have 
indaced legal practitioners to misoondact themsolyes or not, 
it cannot be denied that their tendency is to indace them 
to resort to improper means in order to win their casesi and 
snob inflaenoes are especially strong with the worst class of 
legal practitioners. It seems to me desirable to exalt the 
standard of the higbly honoarable body of legal practitioners, 
and place them above both saspicion and temptation. 

The Punjab is progressing rapidly, and the time when 
special laws and procedures were necessary owing to its 
backward state has or is departing, and it seems to me that 
in this matter the time has come when the same view of 
such agreements should be taken in the Punjab as is taken 
in other parts of the British dominion. I would, therefore, 
hold that agreements between legal practitioners and their 
clients, whereby the payment of the former is contingent 
on the success oi the litigation, are improper, and that 
legal practitioners entering into such agreements should from 
henceforth be considered to be gailty of grossly improper conduct 
in the discharge of their professional duty. 

2nd Jany 1907. Rkid, J. — The question referred to the Full Bench is 

whether an understanding or agreement between counsel and 
client that the " back fee " was to be deposited with counsel 
before appeavance in Court by him in support of an appeal is or 
is not opposed to public policy and to the traditions of the Bar to 
which counsel, who was enrolled as an advocate of this Court as 
a member of the English Bar, belongs. 

The ** back fee " is a fee to be paid to counsel in the event 
of succesp, and usually deposited with him on condition that 
he shall return it to the client in the event of failure in the 
suit, appeal or proceeding. 

The ** back fee " practice prevails in this Province, and a 
Full Bench of this Court held, in Beechey v. Fait Muhammad (*), 
that an agreement between a pleader of the Court and hia 
client, regarding the pleader's remuneration for professional 
services in conducting a legul proceeding for the client in Court, 
which stipulated for payment to the pleader, in addition to a 



(*) 5 JP. ft., 1878, jr. 1. 



Ju«Bl907. ] CIVIL JUDGMENTS- Na 6i. ^p 



sam to be paid in .advance, of a farther sum conditional upon 
sncoesB, was not void as being opposed to pablic policy merely 
by reason of containing socb a stipulation. Tbe legality and 
propriety of the practice was further recognised in Muhammad 
Bakhsh v. Morton and another (*), in which it was held that 
connsel, with whom a ** back fee " had been deposited, conld be 
sned as a stake-holder for return of the ** back fee " on failure 
of the suit in which counsel had been retained. 

The referenoe to the Full Benoh deals only with the cafe 
of counsel but at the hearing the legnlity and propriety of the 
•* back fee" practice in the case of pleaders was argued with 
permission and an attempt was made to distinguish between the 
two cases. 

The practice prevails in contentious proceedings only, and 
it is unnecessary to consider cases in which an ad valorem fee is 
to be paid for professional services in non-contentious proceed- 
ings. 

The authorities cited at the Bar and in point are — 
(1) Beechty v. Faiz Muhammad, cited above, in which the' 
practice was supported as being in harmony with the ideas of suitors 
as a body as to what is the most suitable and advantageous knad 
of agreement to enter into with their pleaders. The following 
passttge from the judgment of their Lordships of the Privy 
Council in Bam Ooomar Ooondoo v. Chunder Canto Mooleerjee (*), 
at page 267 of the report was cited r—*" Their Lordships think 
" it may properly be inferred from the decisions above referred 
'' to, and especially those of this tribunal, that a fair agreement 
^' to supply funds to carryonasuit in consideration of having a- 
" share of the property, if recovered, ought not to be regarded as 
per se opposed to public policy.*' In the case before their Lord- 
ships one Moo.kerjee had been appointed attorney agent and 
mukhtar by certain McQueens to institute and prosecute the 
necessary proceedings for the recovery of their property, on 
condition of repaying himself all advances with interest ont of 
the property recovered and retaining for himself, in consideration 
of bis trouble and risk, one-third of the clear net profits of 
the litigaHon. The successful defendants sued Mocker ji for 
costs incurred by them, and the decree dismissing their suit 
was maintained by their Lordships on the ground that, in the 
absence of circumstances to convert the prosecution of the- 
McQueen's suit into a wrong, the suit again t Mookerji could 
not be maintained. The judgment did not deal with the question 

(>) 194 P. R , 1888. (•) /. L. B., U Cal, 188. 



2§0 ciriL JUi>GMBNT&-Ka 61. [ Rboobd 



of Mookerjee being, and it does not appear from tbe report 
that he wae, a legal practitioner. The antbority iR therefore 
not directly in point and was apparently cited as indicating 
the " cantioQR manner " in which " qnestiocs of the validity or 
'invalidity of agreements connected with litigation in their 
" relation to the requirements of public policy " should be treat- 
ed. There is obviously a very marked distinction between 
permitting maintenance by a layman and peimitiing main- 
tenance by an advocate or pleader who appears in the 
proceeding. The only authority of a chartered High Coart 
cited in the judgment which in. any way supported the conclu- 
Bion arrived at is Ranee Utmat Kootoar v. W. Toyler (*), which 
did not deal with the validity of the contract between pleader 
and client for conditional remuneration. 

(2). MuTuLthinad Bakhsh v. Morton (•), above cited, in which 
it was held that a suit by an unsuccessful client to recover 
from his counsel a ** back fee " deposited with the latter would 
lie, counsel being a stake-holder and no question of the pri- 
vilege of counsel arising, 

(3). Orey v. Ptwan Lachtnan Das (•), in which a majority 
of 3 to 2 Judges held that connnel, a member of the Knglish 
Bar and an advocate of the Court, could not sue for fees. 

No qnestion of " back fee " arose. 

(4). Shircore v. Queen-Empress (*), in which a raajority 
held that there was no difference between an ordinary fee and 
a back fee in respect of immunity from stamping a receipt 
for fees, Huhammad Bakhsh v. Morton (*), was expressly 
dissented from by Frizelle, J., and myself. 

(5). Sohha Singh v. Lorinda Mai (•), and Jai Naradn v. 
Sultan Muhammad Khan (^), which followed the rule that when 
parties competent to contract have entered into a contract, 
neither should be allowed to avoid it except on a clear finding 
that the te rms thereof contravened a positive rule of law. 

(6). In the matter of a pleader of the Chief Oaurt of the 
Purdah Ot in which it was held that the conduct of a pleader 
of the Court who contracted to conduct certain cases for a client 
on the condition of receiving a share of the proceeds of the 
litigation, was grossly improper within the meaning of Section 
13 of the Legal Practitioners Act. 

0)2W. fi.. 807. (*) 16 P. R., Cr^ 18»7, F. B. 

(•) 194 P. R., 1S83. (•) 99 P. R.. 1901. 

(•) 51 P. R., 1«M, P. B. (•) 96 P. B., 190^. 

(♦)69P.Jt.,1904. 



JUHB 1906. 3 OITIL JUDGMBNTS— No. 61. 291 



(7). ThaJcar Dasi v. Beechey (*),in which Muhammad Bakhsh 
y. Morton (^) cited above was over-rnled, the Fall Bench holding 
that the " back fee " mnBt be treated as part of the fee paid 
to ooansel and not recoverable bj snit. 

(8). Eanee TJsmatKaur v. Taylor (*) above cited and fonnd 
to be not directly in point. 

(9). In the Tnatter of Monng Htoon Oung (*), in which Oonch , 
0. J., and LoQiB Jackson, J., said of the practice of an advocate 
of the Rangoon Recorders Court being paid, according to the 
result of the litigation, oni^ of the proceeds thereof, " of the im - 
" propriety of sach a practice there can bo n) doabt. If allow • 
"ed it may produce various mischiefs, and though there may 
'* possibly be cases in which an advocate, from the circumstances 
'*of the plaintiff, might be allowed to make some arrangement 
"of this kind, they are so few and so *»asily confounded with 
" cases in which he ought not to do anything of the kind, that 
" it is not St or proper for the Courts to allow a transaction 
*'to be entered into by advocates practising in them. This 
"authority was not cited in Beechey y. Fats Muhammad (*), 
pos<%ib1y bee iuse it was thought that advocates and pleaders 
were not governed by the same rules in the matter. 

(10). In the matter of an Advocate of the Calcutta High 
Court (^), in which a Full Bench held that it was improper 
for an advocate or pleader to stipulate with his client to share 
in the result of litigation. Hill, J., held that the principle in 
regard to questions of this character by which the conduct of 
counsel onght to be guided was that any arrangement between 
barristers or advocates and their clients whereby a conflict is 
created between a barrister's duty and his intetest is unpro- 
fessional P 

(11). Bojendra Nath MuUink v. Luehhimont Dassee ('), 
in which was cited and foil > wed the rule laid down in Liwless 
V. Mamfie^d (»), that where the relation of attorney and client 
subsists, in questions of accounts between the parties, the 
common rule does not prevail, and that a solicitor who holds 
securities from his client is bound, irrespective of those securities 
to prove the debt for which they wer%»given. This authority 
was cited in support of the prop ^sitiou that dealings between 
parties, one of whom is the legal adviser of the other, are 
governed by special rules. 



(») 48 P. R., 1906. F. B. (•) 6 P. R., 1878, P. B. 

(•) 194 P. a., 1883. (•) 4 Oai, W. N. Oiv. 

V») 2 W. R., 807. (♦> /. L. B.. XI/X Oal., 695. 

(•) il W B., 897. (•) 1 Dr. 4 War^ W. 



,^g2 ^^^^^ JODGMBMTS-^No. .61. [ ftsoofto 

(12). AcJuMnp^rambnth Oheria Kunhammu y. Oanty (^), in 
wbioh a Fall Bench held that, if Ganij was to be regarded as 
A barrister he was ander a disability to contract for his fee? ; 
that if he was to be regarded as a pleader he was prohibited 
by a Oiroalar Order of the Sadar Adalat from enforoing a 
oontrnct for payment of an additional fee in the event of sno- 
oess ; that the decision in Kennedy v. Broun (*), governed all 
agreements made by members of the English Bar in that 
character. 

(13). SMvram Hart v. Arfon (*),»in which it was held that 
an agreement to pay a pleader Bs. 50 in the event of success 
as the sole remaneration for bis professional services was not 
illegal under Section 7, Act I of 1846, bat the Court expressed 
its disinclination to encourage agreements which gave to 
pleaders a personal intere8t io the litigation of tiieir clients. 

(14). Pa/rshram Vaman v. Eiraman Fatu (*), in which the 
last cited aathority was followed. Section 7, Act I of 1846, 
provides that parties employing pleaders shall be at liberty to 
settle with them by private agreement the rcmnneration to 
be paid for their professional services. In these two Bombay 
oases Section 28 of the Contract Act was not rpf erred to and 
the Judges in the first case were opposed to conditional remu- 
neration. 

(15). t^ayqd Abdul Bah v. Qvlam JUani ('), in which it 
was held that the rules governing dealings between solicitors 
^ and their clients in England should not be applied to dealings 

between vakils and their clients in the Icdian mofassil, the vakil 
being generally engaged for a particular case only and not 
having that influence over a client which the solicitor might be 
supposed to have. 

(16). In re N. F. Bhanda/ra (•), in which it was held that 
it was highly reprehensible for an advocate of the High Court 
to stipulate for, or receive, a remuneration proportioned to the 
results of litigation or a claim, whether in the form of a share 
in tl3e subject matter, a percentage or otherw ine and that an 
advocate, whether practising in the Presidency town or the 
mofaasal would, by so acting, offend the rules of his profession 
and so render hifhself liable to the disciplinary jurisdiction of 
the High Court. 

(0 '. L. B., m Mad., 138. (♦ ) /. L, R., VllI Bom,, 418 . 

(•) 18 0. fl. (y. «.), 677. (•) /. L. R„ XX Bom., 677. 

(•) I. L. «., F Bom., 268. (•) 8 Bom. L. B., 102, F. B. 



Iwm 1007. ] OIVlL JUDQMBNTS— Ko. 61. 298 

(17). Alston V. Pitamhar Dai (i), in which it was held that 
an Boglish or Irish barrister, who, in yirtae of his call to the 
Bar, was enrolled as an advocate of the Allahabad Hi {h Gonrt 
and was thereby aathorised to practise as an advooare in the 
said Gonrt and in the Gonrts subordinate thereto, was, in 
respect of fees paid to him by a client for professional services, 
in exactly the same position as if he were practising in England 
or Ireland, and that, ibe fees received by him being mere 
Aonorana, he coald neither sne for the recovery, nor be sued 
for the retnrn of such fees. 

(18). Jaruon v. Drufont-iin Oonsolidated Mines (*), at pages 
500 and 507, in which it was said that public policy is always an 
unsafe and treacherous ground for legal decision. Lord Davey 
added that in the case under ^^nsideratioa it could not be easy 
to say on which side the balance of convenience would incline. 

(19). Gordery'a Law Relating to Solicitors, Edition 3, page 
273, in which abundant authority is cited for the rule that 
in contentious business, an agreement to remunerate a solicitor 
by a share of, or ccimmission on, or sum proportioned to the 
amount of the property to be recovered is bad. 

(20). The following dicta at pages 551 and 554 of the report 
of Iforrttf against Ht*n^ (^):— **But it is said that counsel can 
**^ maintain no action for cheir fees : why ? because it is under- 
*' stood that their emolumonts nre n ^t to depend upon the event 
"of the cause but that their oomptinsation is to be equally the 
'* same whether the event be succassfnl or unsuccessful. They 
" are to b« paid beforehand, beoanse they are not to be left 
"to the ohanocN whether they shall ultim^itely get their 
''fees or not, and it is for the purpose of promoting the honour 
" and integrity of the bar, that it is expected all their fees 
** should be paid at the time when their briefs are delivered. 
" That is the reason why they are not permitted to maintain 
"an action. Nothing c\n b.^ more reisonable than that 
" counsel should ba rendered independent of the event of the case 
" in order that no tempcatioa may induce them to endeavour 
" to get a verdict which in their oonscience^ they think they 
" are not entitled to have conaae) i^hould be renderei as in- 
" dependent as the Judge or tho jury wh3 try the cauf^o when 
** called upon to do their rnty.*' 

Section 23 of the Gotif^ract Act provides that the consider- 
atio3 or objjob of an nyt'eemait is lawful unless the 



(0 I. L, B., XIV All., 609. (•) L, B. H. L. (1902), 500. 

^•) 1 OUi 5K 



294 CIVIL JUDGMENTS— No. 61. [ RiooaD, 



Coort rej^ards it as immoral or opposed to public policy, and 
Section 10 provides that all agreementa are oontraota if they 

are made for a lawful consideration and with a lawful 

object . 

The dicta above cited from the CEise of Moung Etoon Oung (^), 
are, in my opinion, conclusive answers to the ar^ments, record- 
ed in Beechey v. Faiz Muhammad (^ ), for allowing conditional 
agreements for remaneration to be made, and there is, in my 
opinion, a very marked distinction between the fttimnlus afforded 
to an advocate or pleader by an honest desire to do his duty 
to his client and to gain reputation at the Bar and the stimulas 
afforded by pecuniary gain from the result of the case in which 
he is retained. I would maintain the tone and status of the 
Bar and am stroaf^ly opposed to lowering that tone and status 
to suit the prejudices and costoms of an ignorant section of 
the people of this Province. 

In my opinion, based on more than thirty years' experience 
at the Bar and on the Bo[»ch in India, the " bick fee" practice is 
most pernicious and must affect ra >st prejadiciiHy the integrity 
and moral tone of the Bar. 

Pleaders in this Province exercise all thfl functions of ad- 
vocate, the main distinctions between the two oUssea bding that 
pleaders can sue for recovery and can be sued for refund of fees 
and cannot appear without powers of attorney. 

The rules which govern advocates in respect of conditional 
remuneration are therefore, in my opinion, eqaally applicable to 
pleaders and the temptations held out by conditional remauera-- 
tioii affect both classes eqaally. 

The rules to be dtdnced from the authorities cited are in 
my opinion : 

(1). That advocates enrolled by virtue of being mimbers 
of the English or Irish Bar are governed by the rules governing 
members of those Bars. 

(2). That the Standard of professional conduct demanded 
from pleaders and advocates, not members of the English 
or Irish Bar, is as high as thdt demanded from mem ben of 
those Bars. 

(3). That an agreement between an advocate or pleader and 
his client for remuneration conditional on the rasalt of the suit, 
appeal or proceeding is unlawful, by reason of being immoral and 



(>) 21 W. B..297. (•) 6 P.R., 1878, F. B. 



JUNI 190>. ] CIVIL JUDGMBNTS-No. 61. {^Q^ 

opposed to public policy, which demands the mainterance of a 
high standard in the legnl profession. 

(4). That an advocate or plead* r who enttis into such an 
agreement is gnilty of nnpiofeFsioiisl rordDct. 

For these reasons my answer to iFe lefennco is that the 
" back fee " practice 18 niilB^fol and arprofef^sio; al ii> the case 
of both advocates and pleaders. 

I have bad the advantage < f lendiip the jodgmfntR of the 
learned Chief Joc^geand cf my butticr Chit ty, and havi recorded 
a .separate jndgment in consequence of the importance to the legal 
profession and the public of the qnefitions raised, of the fact 
that the pirc^'ce mr'fr c^ rfidciptirr has prevailed in this 
Province for more than 80 years, and of tho great weight to be 
attached to the opinion of the learned Judge who recorded the 
leading judgment in Beech§y v. Faiz Muhammad. 

Cmatteejj, J.— I have had the advantage of reading the 6% March 1907. 
judgments of all my learned brothers who, besides myself, 
were members of the Full Bench, and I do not think I can 
add anything to the very exhaustive discussion by them of 
the subject before the Full Bench. All the Judges, with the 
exception of Mr. Justice Lai Chand, have held that the 
agreement for payment of any portion of a legal practitioner's 
fee on the successful result of the case taken up by him 
is opposed to public policy and impiojer, i^^htthei he happens 
to be a barrister or a pleader. They further hold that a 
legal practitioner who enters into such an agreement is guilty 
of unprofessional conduct. My brother Lai Chand has written 
a very able and lengthy jndgment combatiug these views. 

It is of little importance which way my opinion is given, 
for already there is an overwhelming majority against 
the agreement for back fees. And inasmuch as I cannot 
reasonably hope to throw any further light on the question 
after all that has heen written by my learned colleagues, I shall 
content myself with brieOy stating my views. 

The question before the Full Brnoh is couched in general 
terms or rather baa been treated and argued as such. The 
points involved appear to be (1) whether such an agreement 
is opposed to public policy ; (2) whether the entering into 
any such agreement by a legal praotitioxier amounts to 
professional misconduct ; and (3) whether the same rule 
applies to barristers and pleaders, using the latter word 
to include mukhtars and lower ranks of legal practitioners 



296 CIVIL JUOaif EKT8— No. 61. RBOOftD, 



constituted ondtr Act XYIII of 1879 in order to a?oid circam- 
locotioD. 

Althongh the order in ^bich I liave enmxierated the 
qacstioDt is more logica], it is convenient to take ap the 
seoond part of the last qoestion first. We have in this 
Proyince two main classes of practitioners (1) adyocatts and 
(2) pleaders using the word in the comprehensive sense 
above stated. We have no vakils and attorneys at law 
properly so called. Persons belonging to these classes if 
they wish to practise regularly in our Coorts have to take 
up the status of pleaders nnder ihe Act. Advocates hitherto 
enrolled hfive been, with one exception, ezclnpively members of 
the English Bar thongh members of the Irish and Scotch 
Bars are also eligible. For all practical purposes the 
advocates of onr Coart may be haid to consist of English 
barristers. 

According to the tradition n of their Bar English barristers 
are incompetent to contract f < r their fecF, and thcngh the 
functions discharged by them as advocates of this Court 
do not in all respects conespoid with their fnnctionR in the 
English Courts it has been held that they are neverthelesa 
bound by all the rales that regulato their profession in Eng- 
land. In Qrey v. Biuan Lachman Das this was laid down 
for this Province by a Full Bench and forma the main ground 
for its decision that an English barrister though enrolled 
as an advocate of this Court is incapable of making a contract 
of suing as an advocate. It appears to be well settled that 
in England a member of the Bar would not be allowed to 
enter into any understanding with his client making hia 
fee dependent in any way on result of the case with which 
he is entrusted : Morris v. Hunt and other oases cited by my 
learned colleagues. The rule followed in England has been 
accepted in India and from the ratio decidendi adopted in Orey 
y. Diwan Lachman Bus, the conclusion is unavoidable that a 
barrister who is an advocate of this Court would be guilty 
of improper and unprofessional conduct if he stipulates for 
" back fees." 

It is true that at present the practice is largely followed 
by them also in this Province but that is due to the fact 
that payments of '* back fees " are customary here and has been 
declared lawful by a Full Bench of this Court in Biechey 
y. Faiz Muhammad* But if the matter is considered in the light 
of the professional etiquette of the English bar as recognised by 



ivn 1907. ] dVIL JUDUlfEKTS— Ho. 61. 29? 

> 

the Bnglith GonrtR which is bindiog in this ooimtrj as well the 
praotioe must be declared to be improper. 

The question remains whether legal practitioners, who 
are not barristers, can lawfully stipolate for back fees. For 
them there is no traditional rule or etiquette on the sabjeot. 
Thef are creations of the Indian statute law and are competent 
to contract for their fees. My remarks as I hare already 
said do not refer to yakils and attornejs-at-law for no 
snoh status is recognised in this Province. The matter must 
he decided on first principles and the balance of judicial 
authority. 

I must confess that here I am much impressed by the argu- 
ments of my learned brother Lai Ohand in his able judgment 
of dissent. I am able from my own experience of nearly 
quarter of a century at the Bar to bear out his statements aa 
to the effect of the praotioe of " back fee " upon the legal 
profession in general. There has been nu such evil worked by it 
upon the morale of legal practitioners and litigants in general • 
as by itself necessitates the reconsideration of the question 
settled by the Full Bench case of 1878. The practice had 
its origin not wholly in the distrust of lawyers by litigants 
in this Province but partly alB9 in the poverty and habits 
of thrift of the people. It is a great convenience to the 
poor suitors but gives an undue advantage to the well-to-do 
ones. On the whole it is a help to the new or straggling 
practitioner but is to some extent a source of loss to the leading 
men of the profession. 

yi am not at all sure that the prospect of a back fee 
is a living incentive to improper practices on the part of legal 
practitioners. It may be so in som^ cases, but in the past 
there has been no practical exemplification of this tendency. 
It must not be forgotten that the desire to win a case 
in order to get other work from the same client or to establish 
a reputation al the Bar is always a powerful incentive and 
may also lead and probably has occasionally led to improper 
conduct. Thus the identity of interest between pleader and 
client cannot be wholly eliminated but must ex necessitate 
subsist in some respects. On the other hand participation 
in the subject matter of a suit and merely having a portion 
of the fee dependent on success in it ai*e distinguishable on 
tangible and substantial grounds. Mr. Justice Lai Ghand 
therefore very rightly says that the real factor in shaping 



29^ CIVIL JUDGMENTS— No. 6i. [Bbooed, 

the conduct of a legal practitioner in the discharge of the dniiee 
of hii profesfiion in his personal character. 

Mr. Justice Lai Chand is also I think light in his yleYi 
that in framing Act XVIII of 1879 Tvhich introduced many 
changes from the previous Legal Practitioners Act, XX of 1865, 
the legislature look note of and acted upon the argumentfi 
of Sir Meredjth Plowden in Betchey v. Fatz Muhammad. 1 
hesitate, however, toBubeuibe to hip intcrprefaticn of Section 28 
of the Act that by implication it petmits the practice of back 
fees. The section inTalidates agreements for fees between 
legal practitioners and their clients unless they are in writing 
and have been duly filed in the Court where the work is 
undertaken, but does it seem to follow from this that an 
agreement for " back fee " if such an agreement duly filed 
would necessarily be valid in every case. The section appears 
to me not to deal with the sabstAnce or subject matter of 
the agreements but merely with the form. It prescribes certain 
formalities without going through which they cannot be 
enforced. 

I am of opinion that if the taking of back fee is im- 
proper it may be a ground for taking disciplinary 
action under Section 13 of the Act on the part of the High 
Court. 

I think therefore the question whether taking ** back 
fees " is improper and opposed to public policy is not settled 
bj the Act but must be decided on general principles. This 
deoision is anquestionably a matter of difficulty in my opinion, 
and I cannot but endorse much that has been said in favour 
of not eztingrniBhing the practice by my brother Lai Chand. 
I am also not free from doubt whether the proposed abroga- 
tion of it by my other learnai colleagues does not savour some- 
what of a counsel of perfection. 

1 have already said that the overwhelming preponderance 
of opinion against the practice makes my own of little importance. 
The following considerations appear to me to tell in favour of 
the view taken by the other learned Judges : — 

(1). The fixing of a high ethical standard which will not 
permit a legal practitioner to have any conoern with the 
result ef the case in his hands even to the extent of having 
any part of his fee dependent on it is an advantage in 
improving the tone of the Bar. 

(2). It is obviously inexpedient to have one rule of 
professional conduct for the highest class of legal 



Jviri 1007. ] CIVIL JUDGHBNTB-No. 61. 299 

practitioners, viz.^ the barrister adyocates and another for the others. 

(3). It appears that the other High Courts have generally 
condemned the practice. This adds to the weight of the opinion 
of those J edges who are for abrogating it in this Province. 
It is obvioasly aa -^dvr^ntiga tha^ *>h9 ^ana3 rules of ondaot 
should govern the Bar of alPIodia. 

These reasons are doabtless of great force hot they hardly 
suffice for oar positively deciding that agreements by pleaders 
for " back fees ", safeguarded as they are by the law and the 
considerations sefc forth in Beechey v. Faiz Muhammad are wholly 
insufficient for the protection of litigants and the interests of 
the public and are therefore absolutely opposed to public 
policy. I need not quote the authorities on the question of 
public policy. Some of them are given in the judgment of Mr. 
Jastice Reid and a few in Jii Naran v. Sultan Muhammad 
Khan (^). It is the general opinion of eminent Judges and 
jurists that transactions and dispositions of property ought 
not in general to be held void at the present time, because 
in the judgment of the Court it is against the pablic good that 
they should be enforced, thongh the grounds of that judgment 
may be novel. " The general tendency of modern ideas," says 
Pollock ^ is no donbt against the continuance of such a jurisdiction. 
Principles of Contract, 6th eiiHon, page 298. I am not satisfied 
that the balance of convenience is entirely on the side of declar- 
ing them unlawful and improper. Take a case which might be 
fairly common, suppose a poor suitor has a good claim and Is un- 
justly kept out of his rights by his opponent. He may now go to 
a pleader of repute and say " take up my case if it is a good one. 
** I cannot pay your fee now as I have not got the money, but I 
^ promise to pay it when the case is won ". The pleader would 
be quite safe according to the Full Bench ruling if he got an 
agreement written out and filed. But if we hold such an 
-agreement to be opposed to public policy the poor litigant must 
go unrepresented altogether unless the pleader takes it up for 
nothing and trusts to the gratefulness of his client to pay him 
something at his pleasure if the oase is won. This will seldom 
happen. A practice which has been in vogoe for at least thirty 
years and which has not been shown to have worked any tangible 
evil should not I think be condemned as opposed to public policy 
on purely theoretical reasoning. 

It most not h3 supposed, however, that I am in favour of the 
practice. I should on the whole prefer its abolition in spite of 

(') 96 P. B., 1902, 



' BOO CIVIL JUDGMBNTS-No. 61. [ Uwom, 

I 

the advantageR' it sometimes offers to poor litigants and new and 
straggling praotitioners, but I doubt very much wheth er we oan 
bring about that abolition by holding it to be opposed to 
public policy. 

I therefore, though not without some hesitation, agree with 
my brother Lai Chand that, with respect to pleaders and legal 
practitioners enrolled under the Legal Practitioners, Aot, 1879, 
other than members of the English Bar, the agreement is not 
opposed to public policy and would reply accordingly to the 
question before the Full Bench. 

As regards adyocates who are barristers I would reply that 
such an agreement is improper with reference to the rulep, 
traditions and etiquette of their Bar and is tbereforo prohibited 
to them. 

iOth Nov, 1906. ElOBlETSON, J. — The point which we have to consider is, in 

brief, the *' back fee " system now in vogue among legal 
practitioners and t)^eir clients in the Punjab, one which it is 
possible to countenance. As far as J can judge this reference 
in the light of the authorities, as they now stand, would have 
been unnecessary had it not been for the judgment of this 
Court pronounced by a Full Bench of three Judges in the case of 
Beeehey v. Fatz Muhammad (> ). 

The " back fee " system, as it now exists, is a practice in 
pursuance of which clients when engaging legal praotitioners 
of all classes are accustomed to stipulate that only part of the 
fee payable for the services of the practitioners shall be pay- 
able in any event, another portion being made dependent ou 
the success of the litigation. The usual custom is that the whole 
of the fees, both ordinary and '' back fee " are deposited with the 
practitioner, who returns " the back fee " often direct to the 
money-lender (for in a very large number of cases the money 
necessary for litigation has to be borrowed), in case he does 
not win his case. Sometimes the *' back fee " is only eqaal 
in amount to the ordinary fee, but in a very large number 
of cases it is very largely in excess ; sometimes it is said that 
the " back fee " amounts to as much as from five to ten times 
the amount of the ordmary fee. This is the '*baok fee*' 
system as it stands now. In the case reported as Ihahat Dag 
V. Beechsy (^), the ordinary fee appears to have been Bs. 50 and 
the "back fee ''Bb. 260. 



(') S P. A» 1878^ 9^. (*) 48 P. a, 1806. 



Jura 1907. ] CiyiL JUDGMINTS-N*. 61. 3OI 

It has been decided in Grey v. Ditoan Laelman 2)a#0), 
that an advooate cannot aae for his fee and in Thakar Das y. 
Beecheyf it has been laid down that a " back fee " is part and 
parcel of the ordinary fee, and that a client cannot sae to 
recover a " back fee " from an advocate with whom he has 
deposited it. 

It therefore appears that as regards barristers-At-law, the 
position is the same as in England, tride Boss Alston v. Pitan^ 
bar Das (^), and the priticiples laid down in Morris v. Eunt (•) 
make it perfectly clear that in their case it is certainly not 
permissible to stipalate beforehand for a fee which is in any 
way dependent on the Dsnlt^i of the litigation. As Mr. Grey, 
the President of the Bar Association, who was kind enough to 
assist the Bench by argring the qaestion pointed oat as regards 
barristers there can ba no qaestion at all that the practice 
must be entirely cDndemned. This view is also sap ported by 
ample authority. 

As regards pleaders the case is possibly somewhat differ - 
ent, and it becomes neceasary before considering the qnestion 
in reference to the authoritio? as they stan^ at the present day 
to examine the decision passed in Beechsy v. Fait Muhammad (*) 
and to consider the orrootne^s or otherwise of its reasoning. 
In that case one Baechey, a oleader, had made an agreement 
with a client ander which he wa<i to reoeive Els. 150 down, and 
Rs. 200 in case of the recovery of certain stolen property which 
was the subject of litigation. 

It was laid down in that ruling that the oflSce of pleader 
was one created by the legislature and that his rights and 
duties are to be regulated by the enactment governing pleaders. 
It was then pointed oat that, a" pleader had full freedom of 
contract in regard to hi^ ag^e3mirits with his clients sabject 
only to the provisions of the general law, and that such an agree- 
ment could only be held to he void under Section 23 of the 
Oontract Act, if the consideratiin or object was one of those 
declared in that section not to be lawful. The question is thus 
stated on page 42. '' Thaq the qaestion is reduced to whether 
"such an agreement is void because its consideration or 
"object ought in the Court's opinion to be regarded as 
"opposed to public pohoy. [n other words it is opposed to 
"public policy that % client shiald agcea with his pleader that 
"the former shall p^y to the Utter an additional fee in the 



(>) 61 P. B., 189V : (•) 1 OhU^ 144. 

(•)/. 6. «., Xrr 4W, 509. i (•)5P.«.,1878,#.B. 



992 CIVIL JUDGMENTS— No. 61. BloOBD, 

" eiyent of ^tbe pleader condnctiDg the clieDt's case by lawful 
** mesas to a saooessfal issae lawful in itaelf. 

" If this is opposed to public policy it must be for reasons 
** connected either with the time for payment, or the fact of 
^ success or the character of the event which is deemed to oon* 
" stitute success." 

Now everything which has been written by so learned a 
Judge as Sir Meredyth Plowden must command our respect, 
but I find it necessary to point out that in my humble judg- 
ment the reason why we must hold that soch a contract as 
that under discussion is ille^l and void as contrary to poblio 
policy lies a little deeper. To this I will retorn presently t 
The jadgment thero goes on to say that as regards the client 
iMe practice can only produce good effects and the origin of 
the custom is said to have been the distrast of the Punjab 
litigants of the legal practitioners. Are we to hold that the 
legal profession have done nothing in the 28 years since 1878 
to mitigate this distrust P But there can be no doubt that if 
this was one reason another was that it made it possible for 
counsel to get higher fees. A money-lender is always chary of 
lending money to a person about to litigate without good security, 
but he is always prepared to deposit a much larger sum than 
he would otherwise lend with the legal practitioner upon his 
assurance that it will be rotarned if the litigation is not 
brought to a successfQl issue. After admitting that the question 
was one in regard to which there was much doubt the conclu- 
sion finally come to was " the rule then that I am prepared to 
** assent to is merely a negative rale, namely that an agreement 
•* between pleader and client regarding the remaneration of the 
" former for his professional aervioei is not void as opposed 
*' to public policy, merely because it contains a stipalation that 
'* the pleader is to b^ p'iid an additional sum by the client 
^' on condition of his cr>nda(^tiag che c^^se to a successful issue. 

<'Such an agreement I would hold to be primd fade 
*' lawful, subject to the qualification that the bargain is a 
'* fair one, and not such as it would be ineqaitable to enforce, 
**that is (to borrow the words of the Privy Council) not, 
** extortionate and unconscionable " ; that it is not of a '* gambling 
" or speculative character ; that it is not open to any such 
" objection as would invalidate the agreement if made by a 
*' private ptsrson supplying funds to maintain the litigation, 
" that is tending to promote unrighteous litigation ; and, lastly, 
" that the pirtioalar issue or event on which the right to the 
** future payment is contingent, is not of such a nature that it 



V 



Jum 1007. ] OITIL JUDGM1DNT8— No. 61. ^Q^ 

" wonld be improper to permit the pleader to have a peoaniary 
*' interest in bringing that event abont. 

^' I think it wonld be fonnd after experience of the general 
"mle, snbjeot to these qaaliGcations, that they are snflScient to 
*' gnard against the abase of a practice which it seems to me 
'* inexpedient to attempt to wholly suppress. If experience 
" shows they are not, further qnaliBcations can be added snch 
" as occasion may demand." 

In the first place it wonld appear impossible to say that 
snch contracts are not o! "a gambling and speculative nature." 
Surely a contiaet to receive one-sixth down and five-sixths only 
on Buooees is a contract of a gambling and speculative nature, and 
all such contracts are of their very nature " speculative," and 
would appear to come within the purview of Section 30 of 
the Contract Act. It appears to me that a good deal of the 
reasoning of this judgment is fallacious and unsound, and that 
the conclusions have not been borne out by subsequent experi- 
ence. 

The main reason why in my judgment a contract between 
a client and a pleader under which the latter's remuneration is 
made in any way dependent on success must be held to be con- 
trary to poblic policy, is that, snch a contract places a direct 
temptation before and an incentive to the pleader to act improper- 
ly in the condact of the case. It is notorious that the molality of 
many saitors in this Province at least permits them to bolster 
up a true claim with false evidence. Are we to suppose that 
snch clients are usually particularly anxious that the pleader 
shall bring his case " by lawful means to a successful issue 
lawful in itself." Surely it is quite obvious that the prospects 
of securing a remuneration far in excess as the " back fee " 
often is of the ordinary fee most be a temptation to all legal 
practitioners, and it is a temptation to which they ought not to 
be snbjeot. There may be few of whom it can be directly 
predicated that they will knowingly resort to fraadulent prac- 
tices to secure the *' back fee, " but there are many upon whom 
it must have a subtle infiuence in the direction of disingennons- 
nessy the suggestio falsi and the suppressio veri, and there are 
few upon whom the temptation will not be a burden though 
many may be able to resist it. For it must be remembered 
that the '* back fee " is a gamble upon the resolt pure and 
simple. Under such a contract the exertions of the counsel 
count for nothing. He may make most strennoos and able efforts 
for a snccessful issue, but all this will avail him nothing to 



g(^ OiyiL JUDGMBNTS-No. 61. t Bbcx>e1>, 

inorease his ordinary fee imleBS his efPorts are crowned witii 
snocess, and there are many cases in which a pleader entering 
into snch a contract mnst be perfectly aware that he has do right 
to saccess. It is not necessary in order to declare a class of 
contracts contrary to public policy to be able to aver that in all 
oases snch contracts must have mischiovons resnlts, it is quite 
snflBcient to be obliged to conclude that the contract In question 
is one which is to all ordinary human beings a direct temptation 
and incentiTe to practices which are clearly injurious tx> the 
public and detrimental to the administration of justice. And 
it must never be lost sight of that this is not a question concern- 
ing only a small and peculiar claBS, for it is stated that one 
in every 30 of the inhabitants of the Punjab is cmnudliy affected 
by litigation. 

It is dearly, therefore, a matter of pressing public interest 
to the whole Province. 

And I would remark that it appears to me that there ie no 
analogy between the case decided by their Lordships of the 
Privy Council in regard to champerty and maintenance on which 
stress is laid in Beechey v. Faiz Muhcmmad (^) and the matter 
now before us. I will now proceed to conoider the authorities 
on the question particularly those of date subsequent to 1878. 

Beechey v. FcUm Muhammad (') itself over-ruled a judgment 
of this Oourt in Beechey v. OKolam Ohoue (*), in which the view 
had been taken that snch contracts were contrary to public 
policy. 

In the case quoted in Beechey v. Faiz Muhammad (^), 
Mamee Vsmut Koowa/r v. Mr. TT. Tayler (®), the defence was never 
setup that the contract in qneetion was contrary to public 
policy and the matter was never discussed. It is difficult to see 
how that case can have any bearing on the matter. The same 
appears to be ihe cafe in regard to the judgment in the case of 
Bhiv Bam Hart v. Arjun and others (^), and in the case of Parsh- 
ram Vaman v. Hiraman Fatu and others ('), a different point 
only was decided, a remand made and all other points, including 
presumably the legality of the contract, were referred back to a 
lower Oourt. These appear to be the only cases in which any 
mentioD occurs of such a contract without strong oondemnatioo 
of it. 



C) 6 P. B., 1878. () 2W. B., 807. 

(•) 26 P. B., 1874. (•) /. L. R., F Bom., 268. 

(•) X. L. B., nn Bom., 418. 



iv»m 1907. ] OITIL JUDGltBNf S— No. 61. g()^ 

As regards the English rule for barristers it is clearly laid 
down in Morris v. Hunt (*), noticed above, and as regards solicitors 
in regard to contentions business an agreement to remnnerate 
a solicitor bj a share of or commisBioD in or a snm proportioned 
te the amount of the property is bad. See Cordery's '^ Law of 
Solicitiors," p. 273, 3rd editior. Thtse rnles are embodied in 
Section 11 of the Solicitois' Remuneration Act of 1870. 

In Achamparambath Oheria Kunhammu v. WtlUam Sydenham 
OafUM ('), it was laid down by the Madras High Court that 
even as regards pleader's contracts for professional remuneration 
contingent as to the amount on the success or otherwise of the 
suit could not be enforced, under the circular orders of the Sadar 
Adalat. 

In the case of In the matter of an advocate of the Calcutta 
High Court (*), it was laid down by a Full Bench of five Judges 
that it was " improper for an advocate or pleader to stipulate 
" with his client to share in the result of a litigation, and that 
" in this case a warning and censure would be sufficient, but 
'' it should be distinctly understood that should a case of a 
** similar nature be brought to the attention of the Court in 
*' future it will be most severely dealt with. 

It is hardly necessary to point out that any pleader who ' 

takes an additional sum after bringing litigation to a successful 
issue clearly shares In the result of soch litigation where the 
claim is one to realizable property, and that precisely the same 
principles apply where the object aimed at is something 
different. 

A Bench of two Judges of the High Court of Calcutta " In 
the matter of Moung Htoon Dung (^), an advocate of the Ueoorders 
Court at Rangoon '' expressed similar views. In that case 
decided in 1883 or 1884 it appears that the advocate had 
contracted with his client to share in the money recovered by 
litigation, and the Judges remark, inter aZta, ** of the 
*' impropriety of such a practice there can be no doobt. If 
" allowed it may produce various mischiefs and thongh there 
** may possibly be cases in which an advocate from the 
*' circumstances of the plaintiffs might be allowed to make some 
** arrangement of that kind, they are so few and so easily 
^ confounded with cases in which he ought not to do any thing of 
" the kind, that it is not fit or proper for the Courts to allow a 
" transaction of such a nature to be entered into by advocates 



(») 1 Ohit. 644. (») 4 Cale. W. N,, Civ., F, B. 

(•) I. L. R., W Mad., US. F. B. (*) SI W. «., 297, 



g(^ OmL JUDGMBNTB-No. 61. [ Bkokd 



** praotisiDg in them." These principles in which I cordially 
agree apply with equal force to the case of pleaders, nnd appear 
to have been lost sight of in the judgment in Beechey v. FatM 
Muhammad (^), the concladiDg paragraph of that jodgment 
expressly extends the views expressed to any practitioner 
which clearly covers the case of pleaders. Moreover in that 
judgment there is a dear indication that their Lordships of the 
Prfvy OoQDoil had exproMed a Bimilar view, for it is said, " the 
" Judicial Committee of the Privy Council have shown by the 
*' notice which they have recently issued the view which the 
" highest Court for India takes of such transactions." 

The next case for consideration is that dealt with by a Full 
Bench of the Bombay High Court consisting of the Chief Justice 
Sir Lawrence Jenkins and two puisne Judges. The last 
paragraph of that ruling puts the case very clearly and emphati- 
cally, aad I think it cannot be improved upon. The matter dealt 
with was the conduct of an advocate, In re N. F. Bhandara, 
and the paragraph with which we are concerned runs as follows : — 

" The conditions and ezegencicb of a mofusail bofiiness may 
" justify procedure on the part of an advocate which would 
'* receive no countenance in the presidency towns but (to allude 
" to one matter the papers disclose) I consider that for an 
" advocate of this Court to stipulate for, or receive a remuneration 
*^ proportioned to the resulta of litigation, or a claim whether 
" in the form of a share in the subject matter, a percentage, or 
« otherwise, w highly reprehensible and I think it should be 
" clearly understood that whatever the practice be here or in 
^ the m/)fus8{l he will by so acting offend the rules of his profes- 
*' sion and so render himself liable to the disciplinary jurisdiction 
«« of this Court." 

The same view was taken by a Division Bench of this Court 
in the matter of a jileader of the Chief Court (*). 

The decision in that case fully endorses the view taken by 
the Bombay High Court in re Bhandara who was an advocate 
of the Court. 

It will thus be seen that the practice we are now considering 
has met with direct condemnation in published rulings of the 
Calcutta, Madras and Bombay High Courts, and Mr. Grey 
informed us a statement which agrees with our own information 
that the practice ifl unknown in the United Provinces. Some o f 
these rulings are specifically stated to apply to pleaders. 



(») i P. B., 1W«, J^. B. (•) 69 P. B., lOOA. 



Jmn 1907. ] OlTIL JaDGMBKTS— No. 61. )07 

It appears to me however clear that the same princvples 
most be laid down to govern the oonduct of pleaders in this 
matter as of advocates. It is clear that a solicitor in England is 
not permitted to enter into snch a contract. It is clear that when 
this Ooart passed its decision iu Beechey v. Faiz Mnhofnmad (^) 
(1878) the state of the authorities on the point was very different 
from what it is now. Ooe or two of the jadgments qnoted which 
deal specifically with the matter in qaeAtion are of prior date to 
1878, bat none of them appear to have been pnblished at that 
time. The dates of those mlings are approximately as follows 
Moung Htoon Oung ('), the date of the mling is 1874, bat it 
appears to have been pahli^hed in 1884. The date of Adham- 
farambnath Oherta Kunhammu v. WilUan Sydenham Qantz (*) is 
1881. The o*se of an advocate of the Oalcutta High Court (*) 
appears to have been dec'ded in February 1900 only. In re Bhan^ 
dara (') was pnblished in 1901. The present Legal Praetitionen' 
Act was passed in 1879. 

It wiU thus be seen that it might have been possible to take 
a view in 1878, sach as was more or less tentatively pat iorw^ad 
then, which it is quite impossible to take in face of subsequent 
experience and the array of authorities on the other side with 
which we are now confrontod. With the views taken in these 
authorities I fully concur. Without for a moment making 
any specific acousations I feel bound to say that my experi- 
ence of eight years in this Court has led me to deplore the 
existence of the custom of taking ^* back fees ." The some- 
what sanguine expectations expressed by Sir Meredyth 
Plowden have not been fulfilled, and in view of the very 
nature inheient in such contracts and of heavy weight of 
authority against them, I have no hesitation in coming to the 
onolusiou thit the system is one which must be declared unlaw- 
ful as contrary to public p)Hoy. I wjuld therefore answer the 
question put before as in the negative. 

KiHsmOTON, J.— I do not desire to add anything to the 3rd Jany. 1907. 
judgments alrt^ady recorded and therefore merely say that 
I am entirely in aoiordauoa with the views expressed by 
those of my learned colleagues who, have held back fee 
contracts «o ha illeir^il as well as improper for all branches 
of the legal profession. I agree that the answer to the reference 
should be in the negative. 



(») 6 P. B., 1878. F. B. (•) J. L. U., /// Mad^ 188, F. B. 

O) 21 W. R., 297. (*) 4 OoZc., W. 2f., Ow. 

(•) 8 Bom. L. B., 102, F. B, 



308 CIVIL JUDGMENTS— No. 61. [ Bmoed, 

It 18 nnderaiood fchat the Divisioa Bench by which the 
reference was made will determine the qaestion whether the 
oiroamstanoes jastify restdraiioa of the appeal in respect 
to which the general principle involved has been discussed. 

Mh Jamf. 1907. Johitstonb, J. — I have enjoyed the advantage of reading 

ih6 judgments of several of my learned ooUeagnes on this 
Bench, and it is unnecessary for me to deal elaborately with 
the question before us, as I find myself in full accord with Reid, 
Robertson, Kensington, and Ghitty, Judges, whose judgments 
I have seen. I understand that the learned Chief Judge, 
whose jodgment also I have read, while he is of opinion 
that the agreements under consideration are opposed to public 
policy, and therefore void, holds the view that it is unneces- 
sary to decide this definitely, and that it is snttoient to rnle 
that such agreements are improper and the legal praotitionerB 
entering into them are gailty of grossly improper conduct from 
a professional point of view. With all deference I am in- 
clined to think for myself that both fiiodings are called for 
in this case and that the latter finding virtually involves the 
former, 

I wish spedally to adopt the reasoning of my brother 
Robertson. For much the same reasons as those set forth 
by him I would hold that a contract based on the ''back 
fee " system is opposed to public policy and so is unlawful 
and void. In my opinion when a counsel, be he barrister 
or advocate of the Oourt or pleader or mukhtar, gets up 
to address a Court, he should have no inducements to 
sealous performance of his task other than his desire that 
justice be done, his solicitude for a client who is trusting 
him, his desire to preserve his own self-respect and the 
natural instinct of every good man to do his duty to the best 
of his ability. 

I wish also to say that I agree with my brother Robertson 
that a " back fee " contract or arrangement is a speculative 
or gambling transaction ; and to my mind this yiew much 
strenfi^thens the conclusion that the transaction is an 
unlawful one. The " back fee " is not special remuneration for 
peculiar exertions or unusual efforts on behalf of the client : 
it is special remuneration in the event of snooe9s-«a very dif- 
ferent thing. An advocate may prosecute a case with exceptional 
zeal and diligence and yet lose both case and '' back fee.** 
Equally he may de^l with the case in a perfunctory manner and 
yet gain the extra remuneration. 



Jura l9oi. j oiylL itJDQHfiiffTft— Ko. ei. 30^ 

I have alw^ays deplored the prevalenoe of the ^ back fee *' 
system, and I am fj^lad this Ojart ha^ a^w aa opportaaity to 
denoonoe it. 

RAxnoAV, J.^I have had the advantage of reading the 7th Jany. 1907. 
opinions of the learned Chief Jadge and my brother Bobertsoni 
and I find myself so entirely in aooord with the views of 
the latter that I might oontent myself with simply expressing 
my ooncnrrenoe with him. The question involved, however, 
is one of importanoe, and we are differing from a previons 
Fall Benoh ruling ; ander the cironmstanoes, and in view of 
the fact that I, as a Judge, am impelled to oondemn a system 
which as a member of the Bar I in common with my professional 
brothers, daily practised, I feel it incumbent upon me to 
explain the grounds upon which I agree with my brother in 
his conclusions. This explanation is, I think, ail the more 
necessary as Mr. Sheo Narain, in his able address as amiens 
curue, made it one of his arguments in support of the propriety 
of the *' back fee " system that it had been practised, without 
demur, by members, past and present, of the Punjab Bar. 
The learned pleader very naturally and properly laid stress 
upon this argument and contended that a practice which had 
been adopted by such learned counsel as Sir Meredyth 
Plowden, the late Sir W. H. Battigan, the late Mr. Spitta 
and the late Mr. Justice Rivaz as well as by other past 
and present members of the Bar could not well be stigmatised 
as either jper se improper or contrary to the traditions of 
the profession. This argament has unquestionable force, and 
I, for on^, agree with the learnod pleader that it is impossible 
to characterise as inherently improper or disgraceful a practice 
which has been followed by all members of the Bar for many 
years. I refuse to believe that the practice would have been 
tolerated at all by the profession to which I have the 
honour to belong, had it been regarded by the members of 
that profession as inherently disgraceful. But I think I am 
right in saying that the practice, though tolerated and adopt- 
ed, has never met with the approval of the Bar as a 
whole. On the contrary, I have good reason for saying that 
the more prominent members of the Bar, at all events, have 
throughout strongly disapproved the system and have practised 
it against their own inclinations solely because it had been 
judicially declared by the Full Bench of this Court to be 
legitimate. In face of this declaration, and the system being 
one which cannot reasonably be said to be either " morally 
*• disgraoeful or open to any obvious moral censure,'' it would 



dl6 CtVIL JUDQMlNtS— No. 61. C Kboobd, 

have been alike imperfcinent and im practicable for individaal 

members of the Bar to condemn it, impertinent, becaase an in- 

dividnal who attemptai to condemn it woald have clearly 

been wanting in respect to this Omrt which had after fnll 

consideration recog s d th) pract'-^e «\s valii and legitimate ; 

impracticable, becanse ander saoh circamstanoes even leadinfaf 

members of the Bar wonld have fonnd it exceedingly diffionlt 

to maintain their professional position bad they refused to 

adopt a system which (for reasons to be presently given) 

finds favour with a large class of the litigant public in this 

Province and which the rest of the legal profession were 

at perfect liberty, and without incurring any censure, to 

practise. I do not think, therefore, that this argument, 

plausible as it may seem at first sight, has any real force, 

or that we must assume that members of the Bar who 

have hitherto adopted the practice, necessarily approve or 

have approved the same. The real question is whether the 

system of '* back fee " is or is not one open to objection on 

the ground of public policy, aiid upon this question we must 

obviously give our decision quite irrespectively of the fact 

that the system has been actually in vogue for years past. 

It may well be that many legal practitio tiers who personally 

bad strong objections to the system, practised it nevertheless, 

and as there is nothing per se disgraceful in it, they were, 

I holdf perfectly justified in adopting it. But it does not 

follow that because persons of unimpeachable character have 

entered into agreement for contingent remuneration, these 

agreements are not objectionable as opposed to the policy of 

the law. 

The learned Ohief Judge holds that agreements between 
legal practitioners and their clients whereby the remuneration 
of the former is made contingent upon success are uot 
illegal, and that it would be difficult to assert that they 
are contrary to public policy. As, however, the tendency of 
such agreements is to induce practitioners to resort to improper 
means in order to win their cases, the learned Ohinf Judge 
considers these agreements to be *' improper," and proposes that 
legal practitioners entering into them hereafter should be 
considered to be guilty of grossly improper conduct in the 
discharge of their duties. I have no hesitation in agreeing 
that contracts of this kind are not illegal, but while agreeing 
with the Chief Judge in the result I regret that I am 
unable, with every deference, to arrive at that result upon 
the same grounds. On the contrary, I would myself hold 



JuNi 1907. ] OITIL JUDGMBNTS— No. SL 811 

that tbe system of back fees is to be reprobated, not beoaose 
the agreements are in any way '* improper ** in the 
ordinary sense of that expression, bnt becanse they are dis- 
tinctly opposed to pubb'o policy. 

I am fnlly copecions of the truth of the dtcivm that 
" public policy is an nnruly horse, " and I udmit that tbe 
Goorts have '* this paramount poblio policy to consider, that 
'' they shonld not lightly interfere with the freedom of oon- 
" tract." Nor wonld I venture save for weighty reasons, to 
extend the doctrine of public policy beyond the classes of 
eases already covered by it (Pollock^s " Contract Act,^ p. 1 10). 
But the words of Section 23 of the Indian Oontraoi 
Act are perfectly clear and they must be given effect to 
by the Oourt which, if it finds that an agreement upon which 
it has to adjudicate is one of which the object or consideratiOD 
should be regarded as opposed to public policy, must hold 
such consideration or object to be unlawful, whether or not 
the particular case with which it is dealing comes within the 
category of cases which have already been held to be 
covered by the doctrine. As the same learned author re* 
marks, 'Hhere is no department of the law in which the 
"Courts have exercised larger powers of reetrainiDg indivi* 
" dual freedom on groond of general utility, and it is 
" impossible to provide in terms for this discretion without 
" lajring down that all objects are unlawful which the Court 
*' regards as immoral or opposed to public policy. The 
" epithet *' immoral ' points, in legal usage, to conduct or 
" purposes which the State, though disapproving them, is 
" unable, or not advised, to visit with direct punishment. Public 
*' policy points to political, ecooomical or social grounds of 
" objection outside the common topics of morality, either 
" to an act being done or to a promise to do it being 
*' enforced. Agreements or other acts may be contrary to 
" the policy of the law without being morally disgraceful 
" or exposed to any obvious moral censure." The question 
before us for determination is not, however, from the point 
of view of public policy, a novel ore. On the contrary, it 
has been the subject of cumercus decisions of the Conits, and 
in England especially theie is ample authority for holding that 
an agreement by a barrister or a solicitor for remuneration 
contingent upon success is opposed to the policy of the law. 
My brother Robertson has referred to several of thei^edeci- 
- stons, and I shall pierently cite scnie other but before frcoeeding 
to that part of the caf^e I think it edvif f>ble to difirss the 



81ft OiyiL JUDGIfJONTS-Ko. 6L [ 



qBettJon in the abttimot and to explaiD the leaaoae 
why I yentiir« to hold that agrAements of this kiud 
are abnozions to the dootrine of pablic policy. 

As already remarkedy there are namerons deoisiona to 
the effect that these agreemente are opposed to pablic policy. 
Theie are, on the other hand, deoisiona of eminent Jadges 
to the contrary. Bat I think I am joatified in saying 
that in almost every instance where the system of oontiogeni 
fees for professional services has not been condemned, the 
Ooort has been at pains to point oat that the system ia 
saoh that it might easily lead to grave abases, and that 
every sach agreement between client and pleader reqairea 
the special and carefal scratiny of the Ooart. If this be tiie 
case, and if, as the learned Chief Jndge remarks, the 
tendency of sach agreements is to indnce legal praotittoBers 
to resort to improper meann in order to win cases, and I 
fear that It wonld be impossible to deny that among a 
certain class of sach practitioners these agreements do have 
this deplorable tendency,— there can, I think, be no qaeation 
that it is most impolitic to coantenance those agreemania. 
In thia Province there ia, in this particalar respect, no 
essential difference between the case of an advocate, a pleader 
or a mnkhtar, for quoad the condnot of the case entraated 
to him, each of these members of the legal profeaaioa stands 
practically npon the same footing, and if the agreement for 
contingent fees when made by an advocate is contrary to 
pablic policy, it is, in my opinion, eqnally so when made 
by a pleader or a mukhktr. I have no hesitation in oonceding 
that the system of " back fees '' has not been very largely 
abased In the past. The legal profession fortanately consists in 
the mhht of hononrable gentlemen who wonld disclaim to 
take advantage of a system which enables them, if they so 
desire, to abase their rights and privileges. Bat while 
admitting thia, I cannot ahnt my eyea to the fact that the 
aystem doea lend itaelf to abaaea, and that inatancea of 
anch abaaes have actaally occarred, and it ia for thia reason 
that I am of opinion that the system shonld be dfa- 
coaraged. 

In this connection I wonld like to qaoteafew p«nages 
from the jadgment in the celebrated case of Kmmed^ v. 
Bfoum (0 ^*'^e are aware," say the learned Jndgea, Oat 

(»)18 0,B.(y,fi.),6?7. 



Jnyi 1907. ] CIVIL JUDGHVVIB^-No. 61. glf 

'* in the olasa of adyooates, as ia every other numerous class, 

** there will be bad men taking the wages of evil, and 

** therewith also for the most part the early blight that 

" awaits upon the servants of evil. We are aware also that 

** there will be many men of ordinary powers performing 

" ordinary duties without praise or blame ; but the advocate 

*' entitled to permanent socoess moEt unite high powers of 

^' intellect with high principles of duty. His faculties and 

*^ acquirements are tested by a oeaseless competition proportionate 

** to the prise to be gained, that is, wealth and power 

^ without, and active exercise for the best gifts of mind 

" within. He is trusted with interest and privileges and 

^ powers, almost to an unlimited degree. His client must 

'* trnst him at times with fortune and character and life. The 

*' law entrusts him with privilege in respect of liberty of 

*< speech which ia in practice bounded only by his own sense 

** of duty, and he may have to speak upon subjects concerning 

** the deepest interests of social life and the innermost feelings 

** of the human soul. The law also trusts him with a power « 

*^ of insisting on answers to the most painful questionings, and 

** this power again is in practice only controlled by his own 

^' view of the interests of truth. It is of the last importance 

** that the sense of duty should be in active energy, proportioned 

^ to the magnitude of these interest.8." It was in consideration 

of these grounds that the learned Judges held that an 

advocate should be held to be incapable of contracting for 

hire, and they added that ^' if the law were to allow the 

" advocate to make a contract of hiring and service, it might 

'* be that his mind would be lowered and that his performance 

^' would be guided by the words of his contract rather than 

*' by principles of duty ; that words sold and delivered ac- 

" cording to contract for the purpose of earning hire, would 

'* fail of creating sympathy and persuasion in proportion as 

" they were suggestive of effrontry and selflshness ; and that 

'* the standard of duty throughout the whole class of advocates 

*' might be degraded. It may slso well be that if contracts 

*' for him could be made by advocates, an interest in 

" litigation might be created contrary to the policy of the 

** law against maintenance ; and the rights of attorneys might 
** be materially sacrificed, and their duties be imperfectly 
*' performed by unscrupulous advocates, and these evils, and 
" others that may be suggested, would be unredeemed by a 
** single benefit that we can peroeive" As a member of 
the Bar, I rejoice to think that this high standard of the 

rights and duties of banisterB wfao^iM adT<Matop of tiua 



jjl^^ - ^^^^ JUDGMBNTS-Na Bt [ Ekweo. 

/ Court has been recognised by^^the Pnll Bench in Orey v. 

Diwan Lachman Das (^). And if a barrister is for sach reasons 
incapacitated from contracting for the ordinary remnneration 
for his services, he is, I yentnie to think, a /or^tort, debarred 
from contracting for fees coDtingent npon his sncreFffnl 
oondnct of the case entrusted to him. A pleader can, donbt^ 
less, under the law of this country, contract for remuneration 
for professional services. But even in his case, and having 
regard to the nature of his dutien which in this Province so 
clearly resemble the duties of the advocates are we justified 
io going beyond the strict letter of the law and giving oar 
sanction to a system which must necessarily give him an 
extraneous interest in the litigation in which the part which 
he takes should be merely that of the expert lawyer, whoee 
sole aim and object is to do everything in his power, as an 
advocate or pleader, * to see tbat his client's cafe is put with all 
legitimate force before the Coutt which hns io adjudicate upon 
the claim of the parties P 

These are general observations, but they are, in my 
opinion, worthy of oouHideration when dealing with the qnestioii 
specifically before us, and they should, I think, turn the 
scale if there be any doubt as to the expediency of recognising 
agreements for ccntingent fees. And that there is such doubt is 
beyond question. 

In the leading case of Beechey v. Fatz Muhammad (■), 
Plowden, J., remarked : "I am quite willing to admit, after 
'* all has been said, that the advantages and disadvantages 
** of snch a rule are somewhat evenly bahnced, and that it is 
" a question of nicety whether such agreements should or 
" should not be declared to be opposed, in the Court's 
" judgment, to public policy.** The learned Judge was, however, 
"of opinion that the system (of back fees) was calculated 
•* to secure to him " (the client) " from his pleader a degree 
^^ of zeal and diligence, of attention and promptitude in conduct- 
" ing his case in excess of that which would otherwise be devoted 

« tio it A native client," the learned 

Judge added, "rarely thoroughly satisfied with any terms 
" arranged between himself and his pleader unless by those 
" terms the pleader has a solid interest in success." In 
other words, the system is to be maintained despite its 
dubious character because the client cannot, or thinks he 
cannot, expect of his pleader such zeal and promptitude as 



(») a F. B., 1806, F. B. (•) 6 P. I^ 1878, #. B. 



iuvM W07. 1 OlViL JUDGMfiNTS-Na 61. gl^ 

the pleader would devote to the case if he had ** a solid interest 
"insa^oeis." Aai y3t, in a later pwm^eofthe samejaig- 
ai3at, it u ad airtai that it i? ** aaUairable t> recognise afl 
"valid an agreem'^tnt of thi^ kind when it gives the pleader 
*• a peonniary interest in saooess." With all due deference, 
I confess I am anablo to distingaish between " a solid interest 
" in sacj^f^ss" which app\rantl7 is unobj'=Kjtionable, and a 
" peaaniary interest in saccess" which it is undesirable to 
recognise. So far as thrj " back fee " system is concerned, 
the solid interest which the pbader (or advocate) has in 
the snocess of the case mast, et hypothin, be a pecuniary 
intereflt, and it is bsoaase 1 strongly hold to the view 
that agciomonts which giva a lo^al practitioner a " solid " 
or " pecaniary" interest in litigation are fraught with possi- 
bilities of abuse, that I am impelled to regard them as 
opposed to public policy. As the learned Chief Judge well 
remarks, '*they tend to induce legal practitioners to resort 
** to improper means in order to win their oases ; they are, 
" indeed, the result (po it is said) of a profound and well 
" founded belief of the client that his case will be more 
" zealously pioseouted if there is an inducement in 
•* prospect to an extraordinary degree of assiduity in 
" conducting it." Further, there can be little doubt, I think, 
that to the practice of accepting remuneration contingent upon 
success is due a great deal of the purely spoculativo litigation 
with which the Courts of this Province are as well acquainted 
as are the Courts elsewhere in Britishlndia. " Gambling in 
" litigation and what are called in England maintenance and 
" champerty," remarked Edge, C. J. in Ohumn Kaur v. Bup 
Singh (*), " are unfortunately only t-oo common in this conn- 
" try." In the Punjab at the present day the abases to which 
Pbear, J., referred in Orose v. Amtrtamayi Dan (*), at p. 
12, 13» very largely prevail. ** In every Court of Civil 
" Justice," the learned Judge observed, " throughout Bengal 
'* speculative tra£Bc in law proceedings has aFsumed the 
** dimensions and respaotability of a regular trade. A large 
"class in the coram uijity fattens and grows rich on the spoils 
" of needy suitors. Litigation is promoted and maintained 
** without reference to the wishes or interests of the nominal 
** parties. As often as not in oases where proprietary interests 
*• are in contest, the names on the records represent puppets 
" which move at the bidding of persons who are in no way 
•* before the Court. The proceedings are carried on not to 



(») l.L. B., XT All, .^2. (») 4 Bing. L. B^ O. J. 12. 



3X5 ^'^^ /uDQHilffTa-Nd. 61. [ ttaoou 

'' adjust the rights of Raitors seeking equity and jostioe, 
" bat in order that coo ti agencies may be determined according 
" to which the saocessf al player in a great game of speonlation 
'^ will draw the stakes. I feel it impossible to exaggerate the 
" magnitnde of the eyil .... I am afraid that there 
" are vakeeU of these Coarts who make ase of the opportnnities 
'' afforded to them by their position of buying up and maintaining 
*' pending suits, and I am sure that there are attorneys whose 
^* regard for the interests of their clients in deadened by 
" familiarity with dealings of a champertons character.'* 

It is of course settled law in this country (see Bam 
Ooamar Ooondoo v. Ohundar Oanio Mookerjee (^), at page 267) that 
agreements of a champertons character are not necessarily voidy 
but, as their Lordships of the Privy Council point out in the 
case cited, such agreements have to be carefully watched 
and when they are made for improper objects, as for the 
purpose of gambling in litigation or of injuring and opposing 
others by abetting and encouraging unrighteous suits, effect 
ought not to be given to them. Now it seems to me thai 
agreements between pleader and clients for lemnneratioa 
contingent upon success partake very largely of champerty. 
They are not necessarily champertons in all csFes, hot in 
a large number, perhaps io the majority, of cases they are 
so, and whenever they have been judicially recognised as 
valid, the Ooarts have ymost invariably added the eantion 
that they should be closely scrutinized as they tend to 
many abnses and are open to many objections. To these 
cases I shall presently refer but, before doing so, I would 
add that experience shows that in this Provirce litigation 
of entirely unnecessary and harassing nature is not seldom 
fomented by a class of legal practitioners who are content 
io accept remuneration for their labours only in the event of 
their client's success. 

Now let me turn to observations from time to time 
made by learned Judges both in this country and elsewhere 
with respect to this class of sgreements. 1 think it is no 
exaggeration to say that in almost every instance where 
effect has been given to such agreements, it has been con- 
ceded that the system of contingent remunerstion, though 
not illegal, is open to abuse, and needs the diligent supervision 
of the Courts. In the Full Bench case of this Court, Beechey 
▼. Fai§ Muhammad ('), it is obvious that the learned Judges 



Juin 1907. ] OITIL JUDQMIHTS-No. O. ^^^f 

arrived at their ooDolnsioiui with hesitation. Plowden J.*a 
observations have already been referred to by me in this 
connection, and I wonid only add that the rule which the 
learned jndge was prepared to assent to Tvas ^' n^etely a 
** negative mle, namely that an agreement between pleader 
** and client regarding the remnneiation of the former for 
" his profesBioral servicefi is not void as opposed to pnblio 
" policy, merely beoanse it contains a stipnlafcion that the 
** pleader is to be paid an additional snm by the client on 
^ condition of his conducting the case to a snccesefnl issoe.** 
Snch an agreement the learned judge holds to be prima fade 
lawful, but he at once points out that it is so subject to 
the qualifications that it is a fair and equitable one, not 
eztortionBte or unconscionable ; not of a gambling or speculative 
character ; not open to snch objections as would invalidate 
the agreement if made by a private person advancing funds 
to maintain litigation ; not made for the purpose of pro** 
moting unrighteous litigation ; and, finally, " that the particular 
'* issue or event on which the right to the future payment 
" is contingent is not of such a nature that it would be 
« improper to permit the pleader to have a pecuniary interest 
" in bringing that event about." With all deference I confess 
that a rule which has to be hedged in with such qualifications 
and restrictions appears to me to be one which the Oourts, 
with their necessarily limited powers of supervision over the 
relationship that exists between pjeader and client, should not 
be called upon to adopt. Smyth, J., in the same oase while 
accepting this '* negative rule *' as so qualified, added, " I 
*' can readily conceive that when the agreement is of ifliat 
** class '* (vtf., an agreement for remuneration contingent on 
success) " there may be superadded circumstances which 
^ would often in particular cases make it void as being 
*' opposed to public policy." '* It does not seem to me/* 
*^ continued the learned Judge, *' possible to lay down any 
^ useful general rule as to the class of circumstances which 
" would have this effect. The question must be decided in each 
'* case on its own peculiar drcnmstances. But subject to the 
'^ qualifications and safeguards which Mr. Justice Plowden has 
<' been careful to specify, I am prepared to cor cur with him in 
'Hhe general rule, as far as it goes, which he proposes to 
'* lay down in regard to agreements between pleaders and their 
^ clients for the remuneration of the former for their profes- 
''sional services. Such agreements should be scrutinised by 
^ the Courts with peculiar care and disallowed without 



m 



CITIL TODOMOTTS-No. 61. I Bxoobd 



••hes^fttion whenever ibey appear to be nnooBeoionaWe or 
*• inequitable or oppoeed to public policy." 

In Nathoo Lai v. Badrt Parshad (0, tbe Higb CJourt referring 
to agreements of tbe kind now under consideration, remarked : 
"By snob a bargain the pleader acquires a direct interest 
« to carry on tte litigation to tbe uttermost extent, by eveiy 

"means and inOuence in bis power, and tbis rendeisit tbe 
'•more incumbent on tbe Court to watcb closely tbe tarms of 

" sucb arrangements." 

In 8hw Ram Bart v. Arjan (•), Waetropp, 0. J., and 
Birdwood, J., bold tbat the agreement then in suit (called an 
inafnchithi) between a pleader and bis client was not illegal, but 
they added: " Although we cannot designnte the remuneration 

"as extortionate, yet we regard it as high. ...and we feel 

" no dipposition to encourage agreements which give to pleaders 
" a personal interest in tbe litigation of their clients." 

Tbe back fee system as practised in tbis Province is prac- 
tically unknown in other parts of this country, but a very 
similar pystem prevails in the United States of America, and 
it is interesting and instructive to see in what light such agree- 
ments between clients and attorneys are regarded by the 
Courts and profession of those States. The Colorado Bar Asso- 
ciation adopted a **Oode of Legal Ethics " for the guidance of 
its members, and among the rules laid down in this Code. I find 
tbf^t Jlnle 50 provides tbat " Contingent fees may be contracted 
" for ; hut they lead to many abuses and certain compensation is 
•• to be preferred," (OWca^o Legal NewSy November lOth, 1906, 
page 110), 

An exactly similar rule has ;been adopted by tbe Alabama 
State Bar Aspociation, (Eohbivs' ''American Advocacy'' 
Appendix, page 2^'^), Presumably the various other Bar Asso- 
ciations in tbe United States have adopted the same rule. But 
be this as it may, there can be no doubt tbat in tbe United 
States such agreements between client and attorney, though 
legalised, 9xe subjected to close scrutiny. The learned author 
above-mentioned deals at some length with tbis subject, and in 
para. 187 of bis work makes tbe following observations i—'' At 
" a time when the honour of the profession of the law was more 
" prominent than its business aspect, tbe practice of taking con- 
•* jtingent fees was frowned upoji, and placed the offender in 

^l)l,Jf.F.P.,l. (2) I. L.B^6BcMii., Wr 



''a loifer and more diahoaoarable strata of praotitiooers, 
''Gradaaliy, hovre^ar, the justice aad oeoesaity of saoh oontraots 
" in oertaiQ instances have been generally recognised, althongb 
" Ooarte and laymen seem to still view them with suspicion. 
•• The contingent fee is pnroly a wild growth ; it knows 
neither rales nor limitations. There is neither definiteness 
** nor certainty aboat it. ' If yon lose, I g^t nothing ; 
** * if yon win, yon get nothing ', was the well-known definition of 
"a certain lawyer who was asked by a client to explain 
*' the meaning of the word. While there is some exaggeration 
*' about this definition, it snffioiently expresses the idea that 
*' the attorney's compensation in this class of cases is not based 
^* on any consideration of the real valne of the services of the 
** attorney to his client, bnt is rather a joint speonlation where 
** one pnts in his claim and the other his services, with an 
*• agreement to share in the resalt at a certain ratio.? We have 
** no intention at this time to enter into the qnestion of the 
*' validity of agreements for contingent compensation, nor to 
'* discnss the circumstances under which they may be said to 
** become champertous. It is suffinieot to say that the rule 
" sustained by the great weight of American authority is to 
** the effect that a contract between the attorney and his client 
*• for a oontingf^nt fee is not necesnarily invalid. All the law 
** will do in such ca^e.s is to scrutinize the transaction And see 
** that it is fair, and that no unfair advantage has been taken 
** either of the necessities or the ignorance of the client." 

In Lynde v. Lynde {Sew Jersey Oouri of Errors and Appeals^ 
Lawyers' Annotated Reports, Vol. 58, page 476) Pitney, /., 
observed : 

" The late Ohief Justice Brashy, in an opinion holding 
** that because of the non-adoptiou in this State of the law 
**of Ohamperty and Afaiutenaooe, h contract between attor- 
" ney and client proportionate to the amount of the recovery was 
"not necessarily void, at the same time said: * Such contracts 
" * will be inspected with jealous vigilance by the Courts on 
*** account of the delicacy of the relationship of the parties to 
"' them, and the most transparent candor and good faith is 
•* * required on the part of the attorney in these dealings with 
« • his client. ' " 

To a similar effect is the judgment of the Arkansas Supreme 
Court in Daf>is v. Webber {Lawyer's Annotated Beports, Vol. 
4i5^ at page 198), where the Court remarked, " Such oontrao^a' 
i* however/ shoald be characterised by the utmost good faith on 



ftiO. CIVIL JUDGBiBMTS-No. 61. t^KJoao 

"the part of the attoraey towards his olient, because of the 
" oonfidenoe reposdd ia him. The Ooarts will soratiniae such 
" oontraota closely to see that the abervima fides has been 
•* preaeryed/' 

Iq Eimon v. Johnson {Liivyars* Annotated BeportSf Vd, 
21, at page 369), Afagrader, J., Rpeakiag with reference to agree- 
ments between attorney and client for contingent fees, said : 
" No single circa ma t&noe has done more to debase the practice 
"of law in the p^paUr estimation, and even to lower the lofty 
"standard of professional ethics and self-respect among mem- 
" bars of the legal profession itself in large portions of oar 
"coaatry th&n th3 nitare of the transactions, often in the 
" highest degree champertons, bat ween attorney and client which 
^' are permitted and have received jndioial saactiin. It some-" 
" times wonld seem th^t the fidnoiary relation and the oppor- 
**taoity for nndne infla3nce, instead of being the gronnds 
" for invalidating each agreements, are practically regarded 
** rather as their ezcnse and justification.*' 

In Johnson v. Van Wayeh (District of Oalumhia Oourt 
cf Appeals, Lawers* Annotated Bejiorts, Vol, 41, page 526), the 
Oourt held that "the recognized relations of attorney and 
" client have resiilted in the complete recognition of the legality 
" of contingent fees." They added, however, that " unneoeesary 
"and speculative litigation, the promotion of inexcusable 
" strife, the vexation of landholders and the laying of embar- 
^ goes upon the free alienation of their holders are as pernicious 
" now as they ever were and as needful of redress. Oontracts 
" which tend to promote these evils are as much opposed to the 
"said pnblio policy as they ever were, and therefore ought 
" not to beenforoed/' 

The Supreme Court of the United States in Taylor v. 
Bemiss (United States Supreme Oourt Reports, Liwysrs Edition, 
Vol. 23 a^ pages 64, 65) held that a contract by an attorney 
for prosecuting a claim against the United States is not void, 
because the amount of the compensation to be given to the 
attorney is made contingent upon saccess. The learned Judges 
added: " This does not, however, remove the suspicion which 
" naturally attaches to such oontracts." 

With reference to these extracts I think I am justified in 
saying that even in those cases where contingent fees have been 
reoognised as valid, the Courts have been at trouble to pomt 
out that the practice is one which requires careful scrutiny. 
No doubt in many of the oases cited the reason given for 



JUMI 1907. ] Onrili JUDGHEIKTS— No. 6l. ggl 

I ■ I ■ -^— — — — — — — 

saoh sapernsioa bas baea that agreeineQt3 of the kind, being 
b)t\va9a plieab aai attoraay, every oare is to be taken to see that 
they are not of aa extortioaate aad aaooaaoiouible character. 
This is aadoabtedly one reasoa, and a very strong one, why 
saoh agreeaai3ati shDtili b) ol)iely soratinizei aai dis oca raged. 
Bat it is not, I think, th9 only reason, and I eadorse the views 
of Magrader, J., (above qaoted) that the system of contingent 
fees tends to *' debase the praobice of law in papalar estimation." 
4nd I wonld go farther and say that it hjis also an obvioos 
tendency to promote spacalative and anrighteoas litigation and 
to indace certain members of the legal profession to resort 
to illegitimate or impropar means in order to wia their cases 
and so obtain for themselves remaaeratioa when, if the case 
vr.iS i. li/ w ' 1* I -• jjj /) ail)' a) ra.ni Di'itija at all or 
(ia s^ji; oiiei) bib i 7u*y i lu^^ lidjji it fee. It is admitted 
that the system of '* back fees " is not one advantageoas to the 
legal profession generally, and that that profession wonld prefer 
to receive certaio remuneration. Why then I woald ask, 
shoaid we give oar sanction to a practice which admittedly 
is open to grave abase and can be jastified only on the assump- 
tion, highly derogatory to the honour of a most honoarable 
profession, that the pleader will not conduct his client's case 
with due assiduity ualess he has a '* solid " or '* pecnniary " 
interest in the suocesi of his client's cause ? Surely it is no 
sufficient justiGcation for a judicial recogaition of the practice 
that the ignorant litigant erroneously supposes that his pleader 
will not conduct his case proparly ualess he has himself a 
personal interest in the result? Farther, is it ia accard with 
the] interests of the public thai judicial sanction should be 
accorded to agreements which, for one reason or another, are 
of such a peculiar nature that the Courts mast be ever 
vigilant to closely scrutiaize them? Is it not a sufficieat 
condemnation of such agreemeuts that such scrutiay on the 
part of the Courts is iavariably insisted upon ? 

It is said that these agreements do not necessarily partake of 
the nature of champerty. I quite admit this. Bat it w ould at the 
same time be idle to dei^y that in very many instances, I might 
say in the majority of instances, they are in the highest degree 
ohampertons. Can it, for example, be seriously contended 
that if a pleader agrees in view of his client's present inability 
to pay a larger fee, to conduct a case for the recovery of money 
or other property for a fee of (say) Bs. 50 to be paid in advance, 
bat stipulates for a further fee of (say) Bs. 500 in the event of 
his olienc's suoo jss, the pleader has not a direct and very solid 



inteveat in th« issne . of the prooeeding^ ? There are, of oourae, 
case^ in whioh no saoh consideration can arise. For example, 
a pleader may stipnlate for a fee oontingenfc npon the aoqaictal 
of his olidnt in respect of a criminal charge. Bat in almost 
every cane uf this kind there is an illegitimate indnoementi 
to the pleader to resort to every means, fair or unfair, to 
seoare a nnocessfnl verdict and I am at one with th^ learned 
Chief Jndge in holding that it is not right that any snch 
indnoement should he permitted. 

Upon principle, then, and quite apart from authority, I 
would hold tbat an agreement between pleader and client 
whereby the former is to be remunerated, either in part or in 
whole, contingently upon the success of his client in the 
case, is opposed to pnblio policy. Such agreements are not 
to the advantage of the Bar ; on the contrary, the majority 
of legal practitioners disapprove them. They are, on the other 
hand, open to many grave objections and must at all times 
be carefully scrutinized by the Goorts. And, apparently, the 
sole ground upon whioh any plausible justidsatioo for their 
non-condemnation can be based is the plea th«it the ignorant 
litigant believes that his case will not ba cond acted with such 
zeal and such vigour as it would if hit* pleader had some pecu- 
niary inducement dependent on tho rei^ult. Personally I regard 
any such plea^^ in tha highrtst degree derog'itory t) the mem- 
becB of the Bar, and I feel sure that the latter, as a body, 
shave mj opinion. 

I turn now to the authorities in snpport of the view 
which upon principle commends itself to my judgment. And 
here I would repeat that, quoad this question, there does not 
appear to me to be any essential distinction between the case of 
a barrister, a pleader or a muhhtar, and that the only point 
involved is whether an agreemjut oF the kind under consider- 
ation is lawful or otherwise, it being a matter of no moment 
whether one of the parties to the particular agreement was 
an ad,yocate, a pleader or a muhhtar. 

In Morris v. EwU (^), it was laid down that " the emoln- 
<* ments of counsel are not to depend upon the event of the 
'' cause but to be equally the same whether the event be suo- 
*^ ceesf ul or unsuccessful : they are to be paid before hand, 
** because they are not to be left to the chance whether they 
" shall ultimately get their fees or not : it is for the purpose of 



(^) 1 OhU., 644. 



Jimi*1907.] OinL JtJDtiMHOTS-No; 61. |S8 



** promoting the bononr and integrity of the Bar Yh^titia 
'^ expected that their fees should be paid at the time w»hen 
" their briefs are delivered." 

In England a very similar role prevails with regard to 
BolicdtoTs' fees, Section 11 of the Attorneys and Solicitors* A^t, 
1870 (33 and 34 Vict., C. 28) provider that << Nothing in this 
*' Act contained shftll be construed to give validity to any pnr- 
'' chase by a solicitor of the interest, or any part of the interest, 
"of his client in any 8nit, action or ot.liOr contentions pro* 
"ceeding to be brought or maintained, or to give validity to 
^ any agreement by which a aolioitor retaird or employed to 
" prosecate any anit or action stipnlates for payment only in 
"the event of snoceas in aoch anit, action or proceeding." 

This section came before the Master of the itolls (Jesset, 
M. R.) for conaidf ration in Be Attorneys and Bolicttora Act^ 
1870 (^). In thatca^^e there waa an agreement between clients 
and aolioitors whereby it was agreed that iu the event of the 
solicitors succeeding in recovering certain property for their 
clients they should receive 10 per cent, on the value of the 
property. The Maat^er of the Rolla held that the agreement 
was ** pure champen j " as it gave to the Solicitors, in the 
event of success, what was eqoivaleot to a tenth part of the 
property to be recovered : (see alBO|>er Hawkins, J., at p 900.— 
Alabaster v. Harness (*). 

Tabram v. Home (•), ia a carious case, but to acme extent 
in point. It was there held that " it ia a good defence to an 
" action on an attorney's bill that he undertook to perform the 
" businebS on the principle of * No case, no pay.' " The learned 
reporter adds the following note: ** This cape is given because 
'* it appears by inference at least to negative the presumption 
" which had long (»btained iu the profesbioL thait an action by 
" an attorney for the an^onnt of his bill cod Id not be anawered 
" by proof that Le had undertaken his client's ca^e upon the 
" contract * No caae. no pay ' ; although it was always understood 
'Hhat he was in anch a caae liable to the animadversion and 
^' punishment of the Court." 

In Eafle v. Eopwood (*), it was held that ^'a contract 
^ between attorney and client that the attorney shall advance 
*' money for carrying on a 1 1 w suit to recover possession 
*' of an estate, and that the client shall, if the 
" suit be sncoeasfnl, pay the attorney, over and above his 

(») L. B., 1 CK P., 673. (•; 6 L, X, K. b. (O. flf.) 24. 

(•) I. B^ 1 Q. B., (M96), 819. (*) 80 £. /^ 0. B. {N. 8.) 217. 



324 ^^^^^ JUDGMENTS -No. 61. [ 

<Megal costs and charges, a snm according to the benefit 
'^to the client from possession of the estate, is void on the 
" ground of maintenance.'* 

In delivering the Judgment of the Court, Earle, G. J., re- 
marked : *^ If the contract bad been that the plaintiff was 
" as attorney in the snit to advance m^nej for the prosecution 
" of the suit and the defendant was to give him a portion of 
" the property to he recovered, it would have been a contract 
*' directly in violation of the Ikw of maintenance; the contract 
'* as stated in this declaration is that the defendant was to 
'' pay the plaintifiF, over and above all legal charges incurred, a 
"snm of money according to the interest and benefit to the 
« defendant from the possession of the property in the event 
*' of the suit being successful and the defendant obtaining 
*' possession ; that contract seems to me to fall precisely within 
*' the same principle and to be void upon the same ground. The 
'* only distinction between the two cases is that '\he plaintiff 
< "here has the personal security of the defendant, but if 
" the latter is a solvent man and the plaintiff were allowed to 
** recover in this action, he would in effect obtain a share of 
** the property by following his judgment to execution,*' (cf. 
also Prince Y, Beathi ('). 

My brother Robertson has dealt in detail with the authori- 
ties in Achamparambath Oheria Kunhafwrau v. WxlUam 
Sydenhan Gaw^y (*), Moung Htoon Oung {^)f In the matter of 
an Advocate of the Calcutta High Court (♦), In re : Bhandara (*), 
and Beechey v. Ohulam Ohaus (*), and I need not therefore 
say more regarding them than that they strongly support the 
view that agreements between clients and pleaders for remu- 
neration contingent upon success are opposed to the policy 
of the law. Practically these latter cases and the English cases 
above-mentioned are, with the exception of the Fall Bench 
rnlirg in Beechey v. Fatz 2duhammd ('), and the An^erican de- 
cisions above-mentioned, the [only direct authoriiies npon this 
question. With the American authorities and the Full Bench 
ruling I have already dealt and I can only repeat that though 
the actual decisions were to a contrary effect, the dtcta 
of the learned judges who decided these cases seem to me 
to justify the conclusions at which, both upon principle and the 
weight of authority, I have arrived. 



(») 82 I. J„ gh. {N. 8.) 784. (*) 4 Ool., W. N., Civ. 
(•) I. L. «., Ill, Mad., 188. (•) 8iBom., L. i?., 102. 

(•) 21 W. K., 297. (•) 26 P. B., 1874. 

{•) 5 P. A.. 1878, tS. 



JDNa^l907. ] CIVIL' jaDGMBNTS— No. 61. 826 

In coDclnsion I woold repeat that these agreemeDts are to 
be condemned lot hecaase thty aie nalDrallj ohjecticuable 
bnt hecaoBe they are Buch that the piobahilitieB of evils and 
aboEes resolting from their encoui agement are veij strong. 
There is, I consider, nothing morally disgraceful in such agree- 
ments. On the contrary I can conceive of cases in which a 
pleader might well feel justified in accepticg remuneration on 
those terms, fie would, for example, surely merit no censure 
if in order to secure jastice he agreed to give his professional 
services to a needy client with a just claim upon condition 
that if the claim were established and the client thereby come 
into funds, adequate remnneratiou was to be awarded to him. 
But while conceding all this, J am still of opinion that the 
probabilities of abuses and evils are so great that it is in the 
interests of the community at large that these agreements 
should be prohibited absolutely and without reference to 
oircumstanoes. 

I would therefore answer this reference in the negative. 

Chittt, J.— The question before the Fall Bench is, I under- j^ j)^^^ i9Qg^ 
stand, whether it is legal or proper for a legal practitioner 
to make his remuneration in any case contingent on the 
successful result of that case : in other words, can the " back 
fee system'* as prevailing in this Province be regarded as 
legal or proper by the Courts. The Full Bench ruling of 
this Court {Beechey v. Faiz Muhammad (*) is now after 28 
years under review. It was then laid down that an agreement 
between a pleader and client regaiding the remuneration of 
the former which stipulates for payment to him of a sum 
down and a further sum conditional upon success is not by 
reason merely of such stipulation void as beiog opposed to 
public policy. That rule was enunciated by Sir M. Plowden 
subject to certain qualifications which it is not necessary 
to refer to bere. 

I have had the advantage of reading the judgments of 
tbe Chief Judge and Mr. Justice Kobertson in this case. 
Both agree in deprecating the ^'baok fee*' system and 
characterising it as impioper. Robertsou, J., has gone further 
and regards it as unlawful as being opposed to public 
polity. In this latter opinion I entirely concur, and 1 do 
not propose to add much to the exhaustive judgment which 
he has pronounced. I will, however, shortly state my view 

(») B P. «., 1878, F.B. 



Md' OIVlL JUTOIfCirrd— No. 6l. t itmxM 



of the qaestioii. It has been pointed ontr that it musb be 
considered (a) with regard to barristerB-at-law and (h) witfa 
regard to plcadete. I n^Dst coLfe^s that in piinciple' I C8n 
see no i^ason for distingaishing in this pai*tien]ar mattei* 
those two blanches of the prefeseion. It is only in the capacity 
of advocate for a client that the qnestion of remuneration contin- 
gent on EuccesF ai it es, and in this lespcct both banister aid 
pleader (-tand 00 the same footing. What is right or wrong for 
the one mnst be right or wrong for the other. There isj howeyeri 
a technical distinction which might be drawn. The case of the 
barristei cancot, Ftrictlj speaking, be determined by reference to 
the law of contract, inasmnch as he is regarded as incapable 
of oontracting in the matter of bis fees^Orey th Lachman Dm (^ )^ 
The' pleader on the other hand is competent to oontraot 
for his remnneration, and to his agreement the provisions 
of the Contract Act certainly apply. So far as the barrister 
is ooncerned there cannot in my opinion be any doubt* For 
him the practice in vogue is wholly indefensible. It is 
opposed to the well established ** traditions of the Bar, and 
directly*' contravenes the cardinal principles which regulate 
his relation^ with his client. This is mobt clearly demonstrated 
by the remarks of Bayley and Best, JJ., in the oaee of 
MoTTU V. BwU (^), which was cited by Mr. Grey, and it is 
nnneoessary to do more than refer to them. Can then a 
practice which is not permissible in the case of a banister 
be legal and 90 presumably permissible in the case of a 
pleader P In other woids, can the Court regard it as not opposed 
" to publio policy ? " " Public policy " in this connectioa 
must be taken to be that polii-y which legalates the relation 
of the legal profession on the one hand and the litigating 
public- on the other. Section 23 of the Contract Act provides* 
that the consideration " or object of an agreement is lawful 

unlesa" not, tt is but, ^Hhe Oowrt regards it as 

opposed to public policy." It is therefore left to the Court 
to determine in each case whether the object of the agreement 
is opposed to public policy. Ko doubt the Courts have of 
late years been averse to stigmatising as opposed to public 
policy, and so avoMing agreements which aie in themselves 
in other respects unobjectionable. The term " public policy'* 
must not be used in too comprehensive a manner. But here, 
it appears to me, we are enunciating no new principle. 
The Courts on this question have never wavered. 80 far 
as counsel in England are concerned, there can (as I have 

' (») 51 P. B., 1896» O) 1 Chit. 544. 



Jax a 1907. ] CIVIL JDl>«]CaNT8-No. Bi. jj^ 

BUted) be do doabt whatever. The Ooarts, whenever the 
matter has oome before them, have conBistentlj set their 
face against aoy such arrangementj' between a oonnsel and 
his client. It is worthy of notice that the Legislature in 
England, while granting to Solicitors the greatest freedom 
in contracting with clients for their remnneration has expressly 
prohibited agreements of the natare now ander consideration. 
Section 11 of £he Solicitors Remaneration A.ot, 1870, proYides : 
*' Nothing in this Act contained shall be constrned to give 
^ validity to any agreement by which a solicitor retained 
" or employed to prosecnte any suit or action stipulates 
^' for payment only in the event of success in such suit, 
** action or proceeding." Coming to this country we find that 
the High Courts have uniformly adopted the same view. The 
oa^es have been cited at length by Mr. Justice Robertson 
and I need not again refer to them in detail. No doubt 
most of them are oases in which the conduct of advocates 
was concerned, but the expressions of opinion are not confined 
to that branch of the profession. Pleaders are more than 
once included. The only authority that supports the 
oountrary view is the Full Bench Ruling of this Court in 
Beechey v. Faiz }Suhammad (^). The conclusion at which 
Sir M. Plowden arrived in that case was not reached without 
some doubt. He admitted that the question was one on 
whidi there might* well be two opinions. So far as the 
.elient was conoemed he saw nothing contrary to public 
pdiay in an agreement making the pleader's remuneration 
contingent, in whole or in part, upon success. He did howeyer 
reoognise the dangers which would arise if such an agreement 
wei« permissible to the pleader. He thought that these dangers 
might be averted first by the fact that no man can beoome 
a pleader who has not produced a certificate of good charaotar, 
and secondly by the fact that it will not pay a man in 
the long run to act improperly or be dishonest. I must 
confess with all respect for the learned Judge that this 
reasoning does not commend itself to me, nor has the 
experience of late years altogether justified his expeotations 
if the effect of fiuoli' ttgi'Miiients is to put temptations in 
the way of legal practitioners, that itself goes to show thi^t 
it is contrary to public policy to recognise snch agreements. 
The section of the Solioitors' Remnneration Act to which I 
have referred was not before the Full Bench in 1878, and 
the ▼arions authorities cited to ns are also of; subsequent 



0)»P.«^X878,JP.B, 



g2g CIVIL JUDQMBNT8— No. 61. L BwJom© 



dates. Poflsibly if the learned Jodgos tad the qaestiou before 
them with the 8?ime raateriaU for decUioa aa now available, 
tbeir views might have been difFerent. However that maj 
be, in my opinion that jodgroent cannot now be snpported. 

In oonclaaion I would taj that I am unable to draw 
a distinction between agreements of thi<} nature baing imp-oper 
and their being unlawful. If they are improper, if legal 
practitioners making them are to be regarded as guilty ef 
professional misconduct, then I think that it follows aa a 
matter of course that the Court must regard auoH a^reaa^its 
as opposed to public p >licy, and so by virtue of Section 23 
of the Contract Act unlawful. I would, therefore, answer 
the question before us in the negative. 

ISih Feb, 1907. Lal Chand, J. — I am pirticularly fortunate in having the 

advantage of the opinions recorded by my learned oolieagues 
but unfortunately labour under a heavy disadvantage of being 
unable to express my entire ^and implicit concarrenoe with 
their views. 

With the exception of the ^ Hon 'ble Mr. Justice Chatterji, 
who has not yet written his not«, my learned colleagues have 
concurred in condemning the practice of back fee on one ground 
or another. 

It is therefore of no real practical use to re«v>rd a dissentient 
note particularly when pressed, as I am, by the weight and 
importance of the concurrent opinions of so many of my learned 
colleagues. But the question under consideration is of a peculiar 
and general importance, and possibly it is not undesirable 
that I shonld express my views on a matter of which I 
have had a considerable experience as a member of the 
Bar, and which I have practiaod myself for over twenty 
years. I have therefore decided, though with considerable 
hesitation and difBiou^e under the ci roams tan ces, to expres 
at some length my views on the question under refer- 
ence. 

booking at the question in the abstract, the back fee no 
doubt is a fee payable contingent on success, but I am not 
aware, at least so far as appalUM practice is conoemed, that 
the bick f'ie is )f'i3a roturaed diracfc to the money lender. 
So far a^ I ka)W, a-id m/ eip3ri9Q33 is mostly limited to 
appellate practice, the mouey lender is very rarely if at all 
a party to the payment of the back fee. As regards the 
amount it may occasionally be disproportionate to the advance 



Juwi 1907. ] OITIL JUDGMBNTS-No. 61, SSO 



or total amount of fee as was foand to be the case in Thdkar 
D«« V. Beechey (^). Bat saoh disproportions are very rare and 
tbe nsnal proportion in a very considerable majority of oases 
consists of payment in eqnal half shares. It may further be 
mentioned that although part payment in advance and part 
on saOoes^ forms the ordinary mode of paym3nt of fees in 
this Province, it is not the exolunive method, and instances 
occur off and on where the whole fee is paid in advance as 
what is termed a hilmukta fee. Such then is the back fee 
practice, which we are asked to condemn as immoral, unlaw- 
ful and illegal. With all due respect for the opinions of 
my learned colleagues I feel unable to agree that the mode 
of part payment as back fee has had or has a demoralising 
influence on the legal practitioners of this Province. I do not 
mean for a moment that back fee may not occasionally in 
a few cases act as an incentive for a more zealous or even over- 
xealous prosecution of the suit or appeal. Rut I entirely endorse 
what was stated in argnment by Pandit Sheo Narain that 
a desire to retain back fee no way influences the proper or 
improper conduct of the case by far the largest majority of 
the legal practitioners in the Province. 

It is a factor ignored almost universally, and, as pointed 
out in argument, no case has hitherto been discovered where 
misconduct could be attributed to a desire to retain tbe 
back fee. The question of professional misconduct depends 
entirely in my opinion upon the personal obaract.er of the 
pmctitioners unaffected by the manner of payment of fees, and 
this remark applies not only to the legal profession but to 
every other profession. Some feel inclined to denounce the 
legal profession itself as being open to a variety of temptations, 
and a sort of support is rendered to this view by the cir- 
cumstance that the profession in its origin was intended to 
be honorary though now it is so only by a misnomer. But I 
find no ground or reason for holding that the morality of the 
legal practitioners as a body has been adversely affected or 
is likely to be so affected by arranging to receive the fee 
partly in advance and partly on success. The back fee 
system is not in vo^ue in other provinces, and yet there is 
no ground for maintaining that a larger number of instances 
of misconduct have occurred in this Province than elsewhere. 
I can safely affirm that to say the least there is absolutely 
no ground for making an unfavourable comparison of the 



xaemh^TH of the legal prof^esion in this Pvovtnoe with others 
in the sister ProyiuoeB, I therefore find ooosiderable diffieoltj 
in ^gpreaing with my learned colleagaes thut the system ci 
i^dk fee with all its subtle influences has affected or has 
.tended to affect adversely the morals of the legal practitioners 
jp this Province. T am fltrongly confirmed in this view by 
.the Qironiastaooe that several ^eminent member of the Boglii^ 
3ar ha^e for a long time practised the system withont 
feeling jof liaising any objections against the |»)aotice. I am 
joat Aware .that prior to a few years the system was ever 
««garded .as objeotionable by any member of the Bar, ^and I 
.eannot persuade myself to believe that if it rwere so 
.regarded at least by the leaders of the Bar they wonld have 
.allowed the Aystem to prevail or wonld have adopted it 
AheoMielves in practice. Tli^se gentlemen moreover by their 
extensive practice were in constant contact with nthers 
including practitioners in the mufasml and if it were so 
ii^rioos in its effects as, now it is depicted to be, it is 
highly improbable that they wonld have tolerated it to exist 
or prevail at least withont entering a strong protest. The 
truth seems to be that the practice was not felt to be either 
derogatory or demoralising, and not being illegal as held in 
Beechey v. Fatg Muhammad (^\ and now held by the Hon'blo 
Ohief Judge, it was encouraged by example and continued 
in practice as a method fonnd to be well suited to the 
comparatively poor circumstances of the Province. By this 
mode of payment the client pays generally less than the 
regular fee if he loses and he is only too glad to make 
up the balance in case he wins his soit or appeal* Is it 
then opposed to public policy P The term public policy is not 
defined by the Oontract Act, and it appears to me for very 
good reasons, as it is incapable by its shifty nature of bearing 
a rigid definition. Public policy would vary in different countries 
according to its own peculiar conditions and circumstances. 
'What might be true pablio policy in England need not 
invariably be so in India. There are no doubt certain high 
ideals ^hioh ought to compose public policy everywhere in 
a limited sense bat every necessary ingredient of public policy 
need not be uniform everywhere. There is ample j notification 
for thi^ view if I am ri^ht in thinking that the cirQumstanoes, 
economic and otherwisa of each coon try, do enter in deter- 
mining what U or oaght to b^ its public policy for the 



(») 6P.Jl„Xi78,jr. B, 



Jfii»1007.] GIVIL JtrDGMffim^BA. 61; Sgt 

parpose of the Contract Law. So far, boweter, as may be 
possible, tbe public policy ought to be fizid, (table and net' 
changeable. The following qnotation from the Principles of 
Oontract bj Pollock, page 294, folly bears oat this view. 
" The view here put forward that there is really nothing in 
'^ the case to warrant the invention of new heads of public policy 
" seems to be borne out by the following lemaiks of the Master 
" of the Rolls:— 

" It must not be forgotten that you are not to extend 
** arbitrarily those rules which say that a given contract 
*' is void as being against public policy because if there is 
** one thing which more than another public policy requires 
'Mt is that men of full age and competent understanding 
** shall have the utmost liberty of contracting, and that these 
'* contracts when entered into freely and voluntarily shall be held 
** sacred and shall be enforced b^ Courts of Justice. Therefore 
'* you have this paramount public policy to consider that 
** you are not legally to interfere with the freedom of con- 
" tract." 

It is thus clear that very strong and cogent reasons onghtf 
to be shown for holding that the back fee system is opposed 
to public policy, when it was not held to be so by a Full 
Bench judgment in 1878, and has since prevailed for the 
last thirty years and before, under circumstanoes already 
alluded to. If it has resulted or tended to result in degrading, 
and disgracing the -profession and its members who have 
practised it, it ought to be condemned unhesitatingly as opposed' 
to public policy in order to safeguard the fntuffa Bat 
it is hardly sound and reasonable to condemn 
the system now for the first time on mere a priori con- 
siderations and hold that it has a tendency to degrade and 
is therefore objectionable. 

Tbe evidence to support the view that the practice has^ 
tended to degrade the professino, is altogether wanting iii> 
my opinion, and it is remarkable that when the question* 
came up for decision a few years before the praatioe was 
supportted by an elaborat>e memorial presented by the Bar 
Assosiation as a body, including both sections of t%e BlM*i 
There is absolutely no reason for condemning the system aa 
Champertous. I am in perfect accord with the Uon'blA Chief 
Judge that stipulation to receive a share in the result of 
the litigation is different from a stipulation to be paid a. 
fee contingent on suocess. Tha authorities therefore where 



dSS OI^L JUDOMIKTS— Na 61« [ 

legal practitionera were beld gaiJiy of miflCondiLot for having 

engaged to receive a share out of the fands of the litigation 

in lien of fees are wholly inapplicable. There is no element 

whatever of wager in the transaction. The system is evidently 

f^nited to the peoaniarycircnmsta noes of a considerable portion 

of the suitors. It helps them even if they have to borrow 

from a money-lender. So far as appellate practice is concerned 

the deposit is not made until about the last date when the 

appeal is finally heard. And unfortunately, or fortunately, the 

period is appreciably long specially in this Court between 

the times when the appeal is filed and it comes on for a 

final hearing. If the deposit remains with the money-lender 

afl is stated to be the case no interest is paid on it by the 

litigant. He pays comparatively a higher fee on suoceds but 

such payment under such circumstances is never regarded 

as a loss or a burden. From the litigant's point of view 

therefore the system is not opposed to public policy in any 

sense of the term. For the legal practitioners it ensures a 

higher emolument in certain circumstances and may possibly 

act as an incentive in certain cases and with certain individuals. 

But there is no reason for holding that as a whole it tends 

to demoralise the legal practitioners, or acts as a t*emptation 

for unnecessarily prolonging argument, or for having reeor^ 

to improper or unprofessional practices in the conduct of 

cases. In my opinion by far tbe more powerful and effective 

motive exists in a desire to win a reputation or to prove 

a point which one sincerely believes forms the true aspect 

of the case. The system therefore does not appear to me 

io be opposed to public policy. 

As regards the legality of the practice otherwise, my 
work is rendered much easier by the pronouncement of the 
Hon'ble Chief Judge that the practice is not illegal for either 
section of the Bar. I w\\\ advert later on to the distinction 
between the members of the English Bar, enrolled as 
advocates in this country, and the pleaders whose legal 
status is the pure creation of the Indian legislature, liking 
np at first the case of the latter, who in fact formed the 
subject matter of the Full Bench decision in Beechey v. 
Faig Muhammad (<), the question to my mind turns in the main 
upon the provisions of the Legal Practitioners Act. Chapter 
III of the Act deals specially with pleaders and mnkhtars. 
By Section 6 power is given to the High Courts to frame 
mles for the qualification and admission of pleaders, and 

~' (») 5 P. JR. 1878, F. B. 



Jdm 1«07. ] CIVIL JUDQMVNTB-No. tlk g^) 



seotioiia 12 and 13 empower the High Courts to fiupeiid 
and digmiss pleaders for oertaio speeified reasons. The question 
of remnneratioQ of pleaders is specially provided for under 
Chapter Yl. Section 27 empowers the High Courts to fix 
and regulate the fees payable by any party io respect of 
the fees of his adversary's advooats, pleader, vakeel or mukhtar. 
But Sections 28 to 30 control exclusively the agreements 
made by pleaders and mnkhtars with their clients respecting 
the amount and manner of payment for the whole or any 
part of any past or future services, fees, Ac^ in respect of 
business done or tj be done. It is provided that such 
agreement shall not be valid unless made in writing and 
filed in Court and that it shall not be enforced in Court 
if it is not found to be fair and reasonable. Section 30 
excludes any claim beyond the terras of the agreement. It 
is thus clear that the whnle Rubject relating to the admission 
and remuneration of pleaders is dealt with exhaustively 
onder the Act There is no other legal provision relating 
to the pleaders, and therefore the whole qoestion of their 
rights, duties and* remuneration is to be determined under 
the Act, which in fact is the source of their legal status. 
The Contr<ict Act is in effect so far modified that it is 
alwolutely essential that the agreement relating to fees shall 
be made in writing subject to a further control under Sections 
29 and 30 as regards the ADuont which may be reduced 
if not fair aud reasonable. It was in fact held in Hcuari Lai 
V. Ttlek Ohand (i), that a pleader cannot recover fees under 
an orsl agreement. But as regards the manner of payment 
for the whole or part of any past or future f< es the parties 
are apparently left at perfect liberty to contract as they 
choose. A provision is enacted for reducing the amount if 
not fair and reasonable bat there is none to control the 
nutnner of payment for the whole or part of any past or 
fatnre fees except that tlie agreement shall be in writing. 
There is no question in the present case that the back fee 
system is not legal because the agreement is not made in writing. 
Therefore as regards the manner of payment by back fee 
the practice is no way opposed to the provisions of the Act. 
On the other hand, while there is express provision to 
oootrol the amount and none to regulate the manner, there 
is obvious reason for inferring that the Legislature did not 
intend to interfere with the manner of payment. This conclusion 
is strongly supported by the significaot fact that the Legal 

(>) ise p. B^ im- 



8g4 ^rvIL JUDOMINTS-No. «L [ 



Practitioners Act was passed soon after the Fall Bench 
decision in 1878 legalifiiDg the hack fee practice. There 
exists every reason to presnme that the judgment in the 
Full Bench case was known to the framers of the Act^ and 
I am fnlly fortified in making this presumption by the 
eqnally signi^cant fact that the safeguards proposed by the 
Fall Bench jadgment against any misuse of the system are 
actually embodied in iSections 28 to 30 of the Act. After 
admitting that the advantages and disadvantages of back 
fee were equally balanced, and that it is a question of niceiy 
whether such agreement should or should not be declared 
to be opposed to public policy, Sir Meredyth Plowden remarked 
as follows : — 

"If the law required in this country, as I think it 
»* advantageously might do, that no agreement between pleader 
" and client for remuneration should be enforceable by action 
" when it had been reduced int^ writine, I should have arrived, 
" with even less hesitation, at the opinion which I now hold. 
** Further, the rule I am prepared tc asn^nt to is merely a 

" negative rule, namely, that the agreement is not void as 

"opposed to public policy merely because it contains a 
« stipulation that the pleader is to be paid an additional 
" sum by the client on condition of his condnctinfif the case 
** to a successful issae. Such an agreement I would hold to 
** be prtmd facte lawful, but subject to the qualification 
" that the bargain is a fair one and not saoh 
" as it would be inequitable to enforce, i. e., not extortionate 
" and unconscionabls, that it is not of a gambling or specalative 
" character, Ac." There were thus two main suggestions 
proposed as safeguards other than those already provided for in 
the Contract Act, viz., that the agreement should be in writing, 
and that it should be fair and reasonable and both these 
suggestions were embodied in the Legal Practitioners Act in 
Sections 28 and -29. Section 28 makes it incumbent that the 
agreement shall be made in writing, and Section 29 reqairas 
that the agreement shall not be enforced unless it is proved to 
be fair and reasonable leavintr the manner of payment otherwise 
uncontrolled. Under the circumstances I am justified I think 
in presuming that the view propounded in the Full Bench 
judgment of 1878 as regards back fees was maintained by 
the Act, otherwise some provision would have been entered to 
neutralise the authority of the decision and to forbid the practice. 
It is trae that the safe guards embodied in Sections 28 to 30 
of the Legal Practitioners Act are apt applicable to vakeels* 



ixnm 1907. ] CIVIL JUDGMENTS— Na 61. 886 

Bnt this is not very material rf the practice ssTictioned by 
the Poll Bench judgment is not found to prevail in Provinces 
nnder the jnrisdiction of the Chartered High Conrts. Moreover*, 
it IB qnite possible to imagine that the Legislature did not think 
it necessary to interfere with the arrangement as to fees made 
by advocates and vakeels. There is no danger however on this 
account so far as oar Province is concerned, for a vakeel when 
enrolled as a pleader of the Chief Court loses his higher status, 
and is held bound according to the authorities of this Court by 
the provisions of the Act as a mere pleader of the Ist grade. 
He is bound to file a 9?ritteu agreement as required by Section 
28 of the Legal Practitioners Act, otherwise he cannot recover 
bis fee bj suit — Madan Oopal v. Sheo Singh hat (^). 

Turning to the case law, it is unneceBsary for me to refer to 
judgments quoted and commented upon in Beechey v. Fait 
Muhammad (*). The cases where a pleader or advocate agreed 
to share in the subject matter of litigation in lieu of fees or 
funds supplied may also be left out for the rersons given by the 
Hon'ble Chief Judge with whom I so far concur. An agreement 
to receive a certain portion of the fixed fee in case of success 
appears to me to be totally different from showing or having 
an interest in the subject matter of the litigation. This is 
specially evident when the fee is fixed for conducting a criminal 
proceeding. Eliminating such cases, very few ar'O left which 
bear directly on the question at issue. 

(1) 8hivram Hari v. Arjun (•) was a case under Act I of 
1846. The agreement called Inam Ohitthi was filed with the 
Vahilat noma. It was held that the Inaan Ohitthi whs evidently 
given as the sole intended remuneration for the professional 
services of the* pleader, but it was not held that it was illegal or 
unenforceable under the provisions of Act I of 1846. The suit in 
which the agreement was filed involved a claim for Bs. 310 and 
the plaintiff had agreed to pay Rs. 50 to his pleader as inam on 
Buccesj. It was held to be high though not an extortionate 
amount and the Judges felt no disposition to eocourago agree- 
ments which gave to pleaders a personal interest in litigation. 

(2) Pa/r shram Vavian v. Biraman Batu (*) is a case in 
point. In that case the suits were based oo oral and written 
agreements to pay certain inwards in addition to the usual fees, 
provided the cases were decided in favour of the parties making 
the agreements. The previous judgments of the Bombay High 

(») 64 P. B., ISai. (■) f. L. 12., F, Bom., 258. 

{•) 6 P. R., 1878, F. B. (*) /. L. R., VIU, Bom., 413. 



8S8 CtTIL JUDO^MBKTS— No. 61. [ PM«n 



Ooart, iDolading Shivram Bart v. Arjun, already alluded to, were 
referred to and it was held that the agreements were not illegal, 
and the SnhordiDate Judge was directed to decide the suits 
according to their particular circnmst-ances. The case was 
decided an(?er Act I of 1846, which enacted bj 
Section 7 that the parties shall be at liberty to settle 
with pleaders by private agreements the remuneration to be 
paid for their professional services, and that it shall not be 
necessary to specify ench agreement in the VaJcaltU noma. It 
is now required by Act XVIIJ of 1879 that the agreement shall 
not be valid unless made in writing. 

(3) Acham^ramhath Oheria Kunhammu v. WiUiam 
Sydenham Oanty (^), was a case of a barrister-at-law who had 
secnred an agreement stipulating for a fee to be paid in addition 
to bis fee as a present in case the suit was decreed for a snm in 
excess of Re. 1,000. It was held that as a barrister the defendant 
was incompetent to make any agreement for his fees. As a 
pleader though empowered by Act I of 1846 to Fettle beyoud the 
rule prescribed by the Regulation XIV of 1876 the claim would 
not be enforceable as inconsistent with a circular order of the 
Sadar Diwani Adalat issued on 3rd August 1 853. 

This case was quoted as au authority by the Subordinate 
Judge in his reference in Parshram Vaman v. Htraman Faiu (^), 
for holding the agreements to be unenforceable. But it was 
evidently not followed or accepted by the Judges who held that 
the agreements were enforceable as noted already. 

(4) The facts are not given in Motmg H^oon Aung (*), but 
it was apparently a case of sharing in the subject matter of 
the litigation. 

(6) In the matter of an Advocate of the Calcutta High Court 
(*) was a case of an advocate and distinctly a case where the 
advocate agreed to receive part of the compensation to be allowed 
under the Land Acquisition Act as remuneration for his profes- 
sional services. In one case the agreement was to receive 
half the compensation allowed above Rs. 10,000, and in the 
other to receive one-half of the amount allowed in excess of 
Bs. 40,000, as an additional fee. The case was decided by a Full 
Bench of five Judges, and it was observed that it was " improper 
'* for an advocate or pleader to stipulate with his client to share 
** in the result of the litigation." The advocate admitted that 

(«) J. L, K., JJJ Mad., 138. (») 21 W, B.,277. 

(•) I. L. B., Vin Bom,, 418. (*) 4 Oal W. If., Ow. 



Juw iwr. 1 oitiL niDQliiifM-Wo. el. 



his ooedaot ^as improper but pleaded ignorance, and Hie oiily 
question for decision was one of punishment. * Having regard to 
the actual facts of the case it appears to me that sharing in the 
result of the litigation meant in this case sharing in the 
suhject matter of the litigation, and not that it was improper 
to reoeiTe a portion of the fee agreed upon contingent on suoceea 
in the case. 

(6). In re Bhandara (^), was a ease of gross professional 
misconduct on the part of an advocate who was charged with 
forcing his client into an agreement to give him a large fee, 
Rs. 10,000, hy holding out to him a threat of appearing on the 
other side. He was also charged with showing (after his engage- 
ment) the other party to the claim a way to escape payment. The 
case was tried by a Fall Bench of three Judges who held that the 
acoosed was guilty of gross professional misconduct, and directed 
his name to be removed from the rolls of the Court. The follow- 
ing^ obserfation occurs at the end of the judgment, and was relied 
npon in argument in the present case. 

" I have not hitherto travelled beyond the limits of the 
*' promulgated charges, but I should not have it thought that 
•* my silence in reference to other matters appearing on the 
" papers before as indicate^ approval. The conditions and 
*' exigencies of a Mufassii business may justify procedure on 
" the part of an advocate which would receive no counte* 
" nance in the Presidency town but (to allude to one matter 
** the papers disclose) I consider that for an advocate of 
** this Oourt to stipulate for or receive a remuneration 
** proportioned to the resalis of the litigation or a claim, 
** whether in the form of a share in the subject matter, a 
** peroentage or otherwi*ie, is highly reprehensible, Ac." It ii 
clear that the observation in the Brat place is particsJarly 
reetrioted to advocates, and moreover the obvious reference 
is to eases where a share in the subject matter of the 
litigation is stipulated for whether by fixing proportion, per- 
centage or otherwise. This decision does not even purport 
to differ from the view held by the same High Court > in 
rarthram v. Vaman Hiraman FcUu (*) where agreement by 
pleaders to receive certain fees contingent on success were 
held to be legal and enforceable. 

(7). There is one A.nababad ease (Nathoo Led v. Badri Par^ 
shad (*) which is quoted by Hon'ble Mr. Justice Rattigan and k 

(>) 3, Bom. I. B., 102. (•) I. L. R.. VIII, Bom., 418. 

(•) 1 N. W. P., L 



Hi Ot^th JUDGlnNTS-Mo. 61. [ 



a]fo referred to is Beechey v. Faiz Muhammad ( ^ ). Acoording to 
tbe agreement a fee of Bp. 350 was agreed upon to be 
paid witfaont any cftdition, Vnt it wsb fnrtber agreed to 
pay Bp. SCO moi e aa shvJcrafia in caae the cla^'m for praaession 
was decreed, a further anm of Br. 500 was to be paid after 
the time for appeal had expired and half the amount of 
meane profits lo be realised. Aa pointed ont by 8ir Meredjth 
Plowden in Beechey v. Fatz Muhammad ('), it wss not held that 
the agreement waa void and illegal, bnt that the oircnni- 
atanoea of the ease might be looked to to see if the claim 
was eqai table. A decree pHsaed for Rs. 980 in pleader's favoor 
by the lower Appellate Court was Actnaliy upheld, i.e., for a sum 
apparently including the contingent fee but excluding probably 
the half aharo in the meane profits. It may be noted in thiR 
connection that the second payment of Re. 500 waa contingent on 
appeal not being preferred, and was reserved for the High Court 
vakils as fees if an appeal were preferred. I have looked into 
the copies of certificates required to be filed by the Allahabad 
High Court which were referred to in argument. These 
certifioates are required for ensuring that the actual amount 
received by an advocate or vakil bo entered in the decree and 
do not appear to me to have any bearing on the question under 
consideration. The certificates were not framed to provide 
against a practice which did not prevail, but in order to secure 
against a party being made to pay fees higher than has actually 
been received by the advocate or vakil of his adversary. Dis- 
regarding then the cases where a share in the subject matter of 
the litigation was agreed upon the only Indian authorities 
bearing on the question of back fee are Parshram Vaman v. 
Hiraman Fa^u (*), Nothoo Ltd v. Budfi Parshad (*) and the 
oiroular of tbe Sadar Diwani Adalat referred to in Acham- 
paramhaih Oheria Kunliammu v, William Sydenham Oanty (*). 
The two former held tbe agreements to be enforoeable 
and not void or illegal, and^ tbe last has apparently no 
legal force and was not accepted as such though referred to 
as an authority by the subordinate Judge in Panhram Vaman 
V. Hiraman FcUu (*). It is, therefore, not permissible to hold 
that the practice is opposed to or has been forbidden by 
the authority of the High Courts in other Provinoes. 

It was urged in argument that there ought to be no 
distinction in this respect between a barrister and a pleader, 
but I am not prepared to assent to this proposition. In the 

(») 6 P. R., 1878, F. B. (») f, N. W, P., 1. 

(•) I. L. Jt, Tin, B<m., 418. (*) /. L. B„ Ul, Mad., 181. 



Jmn 1907. ] OITIL JUDOMBNT8-N0. 61. 339 

first place the le^l status of a pleader is a pnre creation 
of tbe IsdiaQ Legislature, and it wonid be unsoand to apply 
to him bod?1y the mles enacted nnder different oironmstanoes 
and for a different legal statns. There is farther no analogy 
between the position of a barrister and a pleader. Tbe 
former is utterly inoompetent to contract for his fees snd 
receives bis fees as honorarium. Tbe latter is positively 
required to make a written agreement and reeeive bis fee 
as remuneration for bis services. A barrister, therefore, who 
is incompetent to make any agreement for bis fee may be 
held debarred from making an agreement contingent on 
success. But tbe same ar^rument would not apply where tbe 
remuneration is fi^ed by express agreement between tbe 
parties, and the agreement is required by law to be in writing. 
An agreement by a barrister, moreover, is a nonentity in the 
eye of law. Tbe agreement made by a pleader is subject to 
the scrutiny of Courts. A back fee unlawfully retained by 
a barrister cannot be recovered, but » pleader under similar 
cironmRtances can be sued for and made to disgorge what 
be has no right to retain. There is therefore no ana- 
logj whatever between their respective legal position. 

Under the Legal Practitioners' Act there is a considerable 
distinction even between tbe statns of a vakil and a pleader 
of an unchartered High Court such ns the Chief Court is. 
Very few of the provisions of the Act are applicable to the 
former and yet as observed in Sayad Abdul Hak v. OtUam 
JUani (^), the principles applicable to the relation of a 
solicitor with a client are scarcely applicable in the 
ease of a vakil. But moreover even in England apparently 
a solicitor is not debnrred from making an agreement for 
bis fee partly contingent on success. 

Section 11 of tbe Solicitors' Remuneration Act, wbioh is 
quoted in tbe jud(<ment of my learned oolleagae the Hon'ble Mr. 
Justice Cbitty, runs as follows :— 

" Nothing in this Act contained shall be construed 

•* to give validity to any agreement by which a solicitor 
** retained or employed to prosecute any suit or action 
'^ stipulates for payment only in the event of success in such 
•* suit, action or proceeding." 

It is significant that tbe section is merely negative in 
its operation so far as it provides against tbe validity of a 

(» ) J, li. B., XX Aws w, f. ea2. 



ft40 OIVIL JUDOMWTB— No. 61. [ 



stipnUlioQ for paymeDt in the eveot of sucoefis. If the matter 
were so reprobate as it ia irpreaeDted to be the laogaaga 
woold have been maodatorj. But, moreover, the proviaion 
tagiunat the validity of snch agreements is restricted to oases 
ol- stipulation for payment only in the event of suooees. There 
is no provision forbidding an agreement for part-payment 
in tibe event of snocess, and apparently snoh agreeiaeBt 
WDoUlnotbe illegal or invalid nnder the Aet. 

It appears to me that there is a considerable distinction 
between cases where the fee is payable only on scccees and 
the practice which ^e are called npon to condemn. The 
former is of a somewhat specnlative nature and may on that 
accoant be objectiooable. Bat the same considerations do not 
apply to a case where a good portion, nsnally half of the 
fixed amoniit, is received beforehand as remoneration for 
services to be rendered. There is no particular anxiety 
for securing remuneration for labour to be performed 
specially where the other half is also received in deposit 
beforehand. This appears to me to be the main principle 
underlying MorrU v. Hunt on which great stress was 
laid in argument. It was a case relating to taxation of costs, 
and the question raised was that the charge on account of fee 
for counf^el was improper. It was argued that inasmuch as 
counsel cannot sue the client for fee it should not at all be 
allowed in the account. The following quotation will speak for 
itseH^ as to the ground on which this contention was overruled. 
After referring to other objections, Bayley, J., observed : **Bttt 
** then the suggestion is that by law no man is liable to pay 
** for counsel at all, and that therefore the whole of the charge 
** for counsel is improper. This seems to me to arise entirely 
^' from a mistake in point of law. It is never expected, it has 
^ never been the practice, and in many instances it would be 
** wrong, that counsels should be gratuitously giving up their 
** time and talenta without receiving any recompeuse or rewards 
'* It is the recompense and reward which induces men of con- 
^siderable ability, and certainly of great integrity and with 
*' every qualification which is neoeAsary to adorn the bar, to 
''exert their talents. It is the emolument in the firat instance, 
*' to a certain degree, that induces them to bear the difficulties 
*« of their profession and to wear away their health which a 
''long attendance at the bar naturally produces, and it is 
"of advantage to the public that they should receive their 
" emoluments which produce integrity and independence, and 



Jiwi 190^. 1 aViL Jtn>GllSKT8*-l7a. 6t 

** I k2U>w of DOibiDg mare likely to destiny that iiMJependeBoe 

'^and integrity than to depiive them of the hcDoniable re- 

'* ward of their bbonre. Bot it is paid that conDsel ctin naintain 

'' no «otioii lor their £at8. Why because it is Dnderstcod that 

''their emolomeiita are not todepeid open the event of the 

''^eame bnt that their ccmpeDfaticD is to be equally the Fame 

" whether the event be snceesafnl or nnsucoeflefnl. They are to 

"be paid beforehand becaa^e they aie not to be left to tiie 

"chance whether they ehall nltimately get their fees or not, 

"and it IB for the purpose of promotiog the bcMionr and integ- 

" rity of the bar that it is expected that all their fees sbonld 

** be paid at the time when their briefs are delivered. That 

"is the reason why they are not petmitted to maintain an 

" action. It is their dnty to take care if they levy fees that 

** they have them beforehand and therefore the law will not 

** aiYlvw tiieni any remedy if they disregard their duties in that 

" respect The same rule applies to a physician who cannot 

" maintain an aotion for his fees " . . • " These are the reasons 

" why the gentlemen of the two professions can maintain 

" tio 'notion for their fees ; but is it to be supposed that men 

** are to waste their lives to qualify themflelves for their pro* 

*^ fesaions without reeeiying any emolument. That never can 

** be imaghied, and the constant course which has been adopted 

"ahowltbatit never could be so understood." This judgment 

evidently in plain and unmidtakeable language differs from 

the Hie6ry that fee for counsel is a mere gratuity or honorarium 

and not a salary or hire lor seivice. It was quoted as such 

by the Hon'ble Mr. Justice Rivaz in bis judgment in the Full 

Bench case of Grmfv.DiwM Laehman VasO). But patting 

the matter briefly and logicy the view enunciated seems to run 

as follows:- (t is absurd even to coooeive that counsel would 

render professional services without receiving recompense or ' 

reward. In fact the law insists that they should receive the 

remuneration in order to encourage men of talents and ability 

to qualify fcr the profession and conduct it with integrity and 

indepMidence. 

And in order to ensure piiyment and not leave it to the 
" chance whether they shall ultimately get the fees or not, '* the 
law requires they should receive it beforehand under threat 
of a penalty that otherwise it nhall not be received at all, no 
action to sue for it being maintainable. I fail to see how this 
reasoniog is applioable to contingent fees, specially when the 



8ti 



(») 51 P. B., 1895, F, B. 



ft4d CIVIL JT7DOICBNT8-NO. tl. f ftgcoiD 



whole it neoeiTed beforehand hj payment or deposit. Thore 
wag BO qnefifion Ibtn •» ifgaidp lie inprciriiiy cr inxDOialilj 
of a fee ooDtingent on fvaehs. Tie qDe^*ion was tbat a 
connsel cannot ane for hia fee acd the dear and nnmiaf akeaUe 
'^P^J given waa that he cannot ane becanae it ia encinestly 
deaiiable and neceapaiy that be abonld recciTe alee and receiTO 
it beforehand and not be left to the chance o! litigation for 
recoTering it. Neither of tbeFe landable aima ia defeated 
by the practice aonght to be condemned in thia case. The whole 
fee is teceiTed beforehatd and part of it, nanally half, is 
agreed to be retained by the pleader or oonnael under any 
oircamatance independent of tie result of the litigation, ao 
that he be regarded for hia aei vices and may not perform 
them gratnitooaly. There ia an agreement to retnm a poitkm 
of the fee onder certain contingencies bat it ia j^er m unobjeo- 
tionable. Anyhow i tie not oppoaed to the ratio decidendi of 
anthority qnoted and none other ia quoted to ahow that it is 
so. There are similar obFCiTaticna in the judgment (rf Beat, 
J.i in the aame caae, but they all refer directly to the fame point, 
and indiiectly to a case wheie the whole fee ia rendered 
ccntingent on aucceFp. Thua:'*But it has been aaid that in- 
"asmuch aa connael could not reoover their fees from the 
** plaintiff, therefore plaintiff could not recover them ftom the 
** defendant. The defendant miatakea the principle upon 
'* whioh he ia called upon to pay the^e feea. Hia liability is 
•« founded upon the principle stated by my brother Bayley. 
** Nothing ean be more reaaonable than that counael ahould be 
** rendered independent of the event of the oauae in order that 
'* no temptation may induce them to endeavour to get a 
" verdict whioh in their conaoiencea they think they are not 
*^ entitled to have. Oonnael ahould be rendered as independent 
'^ as the judge or the jury who try the cause when oalled upon 
** to do their duty. Was it ever understood by any man that 
'* gentlemen who are put to the moat enormoua expense in 
'* rendering themselves competent to appear in a Oourt of 
** Juatioe aa advocatea are to act fcr nothirg. No man is so 
** ignorant or so stupid aa to auppoae that thia can be the caae. 
"There is nothing whioh has so' great a tendency to secure 
'Vthe doe administration of justice as having the Courts of 
** the country frequented by gentlemen so eminently qualified by 

" their eduoation and principles of honour If under such 

" oiroumatanoea there could poaaibly be a diapoaition to do 
" injuatice to auch men the greateat injury would be done to 
** the public.,, .•••••It never entered into in any man's oontempla- 



ivn 1907. 1 OtVtL JUDQlilUlM-l^o. 6L g^ 

" tion as a soand priBoiple that ooiiDsel are not to be paid 
** in the first instaDoe bat that payment mnBt depend upon the 
''erent." These paraages render it still more clesr if there 
were any room for doabt that the ease referred to here is 
when the whole fee is dependent upon stieeeBS and connsel are 
called npon to act for nofking. Such .practice is if permitted 
held to be injnrions to pnblio interest becanse it will fail 
to attract men of ability to appear as advocates in Courts of 
Jnstice. There was no occasion to consider and decide the 
moral efEeot of part-payment contingent on sncoess. It may 
possibly be suggested as a possible result of the reasoning in 
Morri$ ▼. Hunt that the whole fee be rendered payable before- 
hand in order to secnre full recompense to the legal practi- 
tioneiB for their services in Court. This no doubt would be the 
result if it is ruled that it is unprofessional to contract for 
part-payment of fees on success. The movement would so 
far be in the pecuniary interests of the bar and in the direction 
oontemplated by Morris v. Hunt. For ii is not likely that men of 
talents and ability who join and adorn the bar, will allow their 
pecuniary interests to suffer in the matter of remuneration for 
services iu Court. There will hardly be any difficulty in 
devising and settling means and methods for attaining the 
proper and requisite object and to secure full oomptosation 
if the whole fee is to be paid beforehand. As a matter of 
fact Pandit Sheo Narain asked us in his argument to leave 
out of consideration altogether the supposed pecuniary loss or 
gain to the bar as a result of upholding or abolishing the 
baok-fee system. My only apprehension is that the litigant 
will suffer in the end by the abolition of the practice. As it is 
both parties are content with the present arrangement. It 
avoids the two extremes. If a legal practitioner, whether counsel 
or pleader, performs his duties indifEerently and such casest to 
put it mildly, are not few, the litigant does not get adequate 
return for his payment but he loses only one half. On the other 
hand if a legal practitioner performs his work with seal and 
ability and pains he has the satisfaction (of receiving the ade- 
quate consideration) for if he loses he still retains one half of 
the fees as remuneration for services performed and is not 
dissatisfied. Nor is the litigant dissatisfied if the whole fee 
is retained on sncoess which is not due to the ability of the 
legal prdk5titioner engaged. If the last case weie a reason for 
abolishing the back fee, and such cases are not rare, it would 
equally be a reason for not allowing any fee in such caaea and 
yet if it were done it would directly militate against the 



8*4 



OITIL nD$m9m9^1S&. €1. tltMmD 



prwoiple ao BivoBfrlyt eloqnetitlj ami eJiborah^lj eziii0ciatrd id 
ilprrUi. HmU. 

Tliere is tliDS an absolute dcaiib of aotbciil j- for beld* 
ing tbat a stipnlation for part payiDeot of fee on ancoeca 
ppeoinllj ivbere rncb payment ia received, in depoait beforehand 
18 illegal or unlawf aL 

Aa oboerrud in Beeehey v. Foim Muhammad (^), ** a yery 
** afrong cafeongbt to Fe made for intej faring witb a practice 
••^blcb comnenda itself to the rativea of tbe coantiy i?bicb 
** iff a^tisfactory and advantageona to them and ia not likely 
** to promote tbe tmneceaaary litigation.** Whetber tbe practice 
originated in tbe litigant's inability to pay tbe wbole fee at once 
or in his desire to aecnre proper attention and amount of labooi* 
for remnneration paid it baa been accepted aa a aatiafactory 
arrangement by botb partiea to tbe agreement. Tbere ia neitber 
oanae nor ground for grievance or complaint* If ibe proapeot 
of aecariog or retaining back fee baa a snbtle tendency 
to demoralise a pleader or an advocate by inclining bim to 
improper practicea in tbe conduct of a case tbe aatiafaeiion 
thattbe inrbole foe ia already aecnred baa an equal clemoralia- 
ing influence in inducing bim to give tbe minimum troaUe 
to bia brain, leaving tbe case to its f<ite and to tbe jndgnent 
of tbe Court. If bowever an earnest ambition to win 
reputation and good nsme dees operate aa an inoentive to 
ooonteract tbe lai^t-mentioned influence it would equally 
act aa nucb to counterpoise tbe declining tendency of the fomer. 
Anyhow a litigant under tbe oircumAtaocea would be per- 
fectly justified on basinesa principles to keep back a portion 
in order that tbe desire to aecnre the same may act as an 
incentive for rendering proper services. Sudi attitude on bis 
part may in theory be derogntory to tbe profeaeLMi. But 
inr deciding whether the practice ia oppooed to public policy 
ttie intereata of botb partiea ought to be taken into aooount. 
Where then ia tbere a good reason for interference on tboe- 
retical grounds when the result from tbe litigant's point 
t>f view might be to pay more and get leas work. These 
•onsideritions apply equally to pleaders and advocates. If 
iibe latter aa barristeia are governed by the usagea and 
traditiona of the Bar in England and tbe praci i :e to retain part 
payaeiii on aocoeaa, though deposited beforehand, is opposed 
4o snob traditiona and uaages it would be .nprofeaaional on 



0)SlP.l^U7i, 



JvMi 1907. ] oiviL judgments-No. 6i. ^45 

their part to contiDne the practice. No aathority directly in 
point was however quoted for the very probable reaaoa that the 
practice does not prevail there. The practice is opposed to the 
theory that a barrister is incompetent to contract for his fee* 
But that does not render it illegal to make such agreement as 
pointed ont by the Hon'ble Chief Judge. As refi^ards considera- 
tion of public policy the reasons given already apply equally to 
an advocate while the provisions of the Legal PractitioDers' Act 
are altogether silent as regards advocates and do not debar 
them from arranging for part remaneration on success. It 
is not however clear to my mind that advocates enrolled 
by this Court are governed by the usages and traditions of 
the Bar in England. It was so decided by a majority of 3 
to 2 in Grey V. Lachman Das (*), and I am bouud by that 
decision. But if the question were open I would agree with 
the views expressed by Hon'ble' Mr. Justice Hivaz and Sir 
Charles Boe, and hold that the English rule is not to be 
considered applicable ** in the Puajab where different condi- 
''tions exist between the various grades of the profession 
*' inter se and difEerent relations are recognised betweeo counsel 
** and client." The same view has 1 ouderstand been recently 
held by the Chief Court at Biangoon, and the matter will 
probably ere long be finally settled by a decision of their 
Lordships of the Privy Council. 

It is unnecessary for me to say anythiug further on 
the subject excepting that it would be a matter for surprise 
that BO many eminent members of the English Bar should have 
readily adopted the praoticd of part-payment on success unless 
the truth were that it was recognised that there was nothing 
pernicious per se in the system and that it is weU-suited to 
the circumstances of the {province. It was therefore thought 
unnecessary and undesirable to import and apply bodily all 
the usages and traditions of the profession as understood 
ebewhere. This I believe to be the keynote of the decision in 
Beechey v. Fail Muhammad C), and I adhere to it unreservedly. 

In the end I heartily join in the gracious desire expressed 
by the Hon'ble Chief Judge to exalt the standard of the highly 
honourable body of legal practitioners. If something could bo 
done to raise their status and place them even on the same 
footing as vakeels of the Chartered High Courts the change 
would, I believe, be received as a valuable boon. As it is 



(») 51 P. ii., 1885. (») 5 P. fi., 1878. 



they are nuder great dieabilities under the Legal PraotitiODera ' 
Act as an ill-trasted body in matter of range of praotioe, 
receiving iDstroctions and remanerations, Ao. A vakeel of a 
Chartered High Court even is rednced to the same level and 
sabjected to similar disabilities by enrolling himself as a pleader 
of the Chief Court. I hope and earnestly desire that th« 
abolition of the back-fee sjstem may result in improving their 
standard appreciably. 

So fai' as I can guess the practical result of the 
abolition would be to raise the standard of advance fees or 
to fix fees by hearings, a practice easily liable to abuse. For 
the rest the conduct of the litigation will remain unaffected 
and will depend as befoie on the ability and moral strength 
of the individual actoally employed to conduct the case. 

No. 62. 
. B$for€ Mr. Ju$Hee RoberUon amd Mr. JmUce Lai ChMnd. 

/ THE MUNICIPAL (COMMITTEE OP DKLHI.-CDifiroiiiT),— 

PETITIONER, 

Venui 

DEVI SAHAi,— (PLAUTBrr),— R68PONDENT. 

Civil Revision No. 1669 of 1905. 

Bru^Un of a n$%» huildimg^AppUeation for, ineUtding prtjeeHomg o% « 
$tr§ot~'Ommiuion of Municipal CommiUm to jMWf wrdw$ thcroon wUhin nm 
iMoU-^AppUeoni not ontiUod to pruumo Utcit Manction provided for f» 
OHb^oction S ofioction 9i as to projoetion or onerpaehmont-^ Punjab Muniai" 
fNil Act, 1891, Sottiono 9S, 95. 

Hold, that where tenction for the ereoiion of a projeotioii or itreetare 
OTerhaoging into or eoeroaohing npon any street which requires a written 
permission nnder Section 95 of the Ponjab Manicipal Aet, 1891, ie ap|riied 
for and inolnded in an application for the erection or re-ereotioii of a baild« 
ing provided for in Section 92, and the Jlwnoipal Oommittee fails to pass 
any order within six weeks after the receipt d a valid notice ander tub- 
section 1 of Section 92, the person interested in such application is Aot 
warranted under sub-section i of that section to nrect iMich projection 
and cannot be dtfcmed to have obtained the necessary sanction in reqpeot 
thereto. The tacit senctlon provided by sub-section 5 oovf rs only erections 
ff re-erectioDS of buildings, but does not also cover a projection or struc- 
ture overhanging into or encroaching open any street or read. 

Aya Mam v. Quoon'Bmprooo ( *), ihrahim r. Municipal OommiUoo, 
Lakoro (*), Damodar Das v. Mwnieipal Oommittao, Dolhi (•), King-Smparor r. 
Billu Mai («), and Ali Mardan y. Municipal Committoo, Kohat V') referred to. 



RiVZslON Sn>B. 



(») 9 P. B, 1901, Or. (•) «7F. E. 1901 

(•> 52 P. K., 1900. (•) 27 P. B., 190i. Cr. 

(•) 45 P. Bh 1105. 



July 1907. ] OIYIL JUDGMINTb. No. 62. {47 

F$Uti<m for revinon of the order of W. A. Le Rosiignol^ E$qu%re, 
Additional Divisional Judge, dated 22nd February 1905. 
Sbadi Lai, for petitioaer. 
Chani Lai, for respondent. 

The judgment of the Oonrt was delivered by 

RoBiBTSON, J.— We think that we mnst set nside the order ^^^^ ^^cr- IMS. 
of the learned Divisional Judge on revision for the following 
reasons :— 

It appears that defendant applied for permission to the 
Mnnioipal Committee of Delhi to bnild a honse on a certain 
plan on land which he alleges to be his own. The only reply 
he got was a notice, dated 4th March 1903, to the effect that the 
Committee would consider the application. He accordingly 
proceeded, without waiting further, to build and on 13th May 
1906 the Committee issued a notice to him under Section 95 of 
the Municipal Act calling upon him to remove a " taj " and 
" katwar " and to clear encroachments off from 38 yards of 
roadway " samin rasta " over which his buildings projected. 

The plaintiff thereupon brought a suit for an injunction 
to restrain the Committee from interfering with his house. 

The first Court has found on the facts that the pUintiff 
has enroached upon land of the Committee used as a public 
fmssage. 

The lower Appellate Court, without coming to any finding 
on the facts, has held that inasmuch as sanction to bnild was 
applied for under Section 92, and no notice of the application was 
taken by the Committee under Section 92 to forbid the erection 
of the building, no action can now be taken against the builder 
under Section 95, and the only remedy of the Municipal 
Committee is by way of regular suit. 

Now Section 92 clearly applies primarily to the erection 
of buildings upon the private property of the appellant, and a 
totally different set of considerations apply to sanction in such 
eases from those which apply to sanction to bnild in a manner 
to lead to obstruction to, or to encroach upon, public streets. 
Section 92 has to be complied with in any case, but a sanction, 
or an implied sanction from six weeks of inaction, can only 
a^ect matters within the pnrview of Section 92 ; and implied 
sanction or sanction by silence under Section 92 can be no 
answer in respeofc of buildings of the special kind dealt with 
udner Section 95, and which cannot be constrncted under 



248 ^^^^ JUDGMBNTS— No. 62 [ ItMoAB 

SeotioD 95 without the written peimispioB of ihe Committee. If 
a loan applies for Fasction ocder Section 92 for the conslmcticn 
of a bnilding which inclades a projection, as part of a larger 
building, the bnilding of snch projection requiring permission 
, in writing under Section 95 be cannot, we think, shelter himself 
mnder sanction by silence under Section 92, against action under 
Section 95. CTnder Section 95 certain things can only be done 
witlS^ntten permission, the fact that certain other things may 
be donWunder tacit sanction under Section 92 cannot extend 
snch tacit sanction to cover acts requiring written sanction 
under Section 95 merely because the sanction is applied for to 
do both things at one and the same time. All that tacit 
sanction under Section 92 can do is to sanction acts not requiring 
written sanction under Section 95. Several rulings have been 
quoted, viz., Ibrahim v. Municipal Committee of Lahore (*), Ay a 
Bam V. Queen- Empress (■), Damodar Das v. Municipal Committee^ 
Delhi (*), King-Emperor v. Billu Mai (*), and Alt Mardan v. 
Municipal Gommittee, Kohat ("), which we have examined, 
but the only ruling quoted to us which expresses any view at all 
in conflict with that expressed above is Aya Bam v. Queen' 
Empress ('). The question was not fully gone into in that case, 
and was considered from the point of view of criminal liability 
only. We are, however, unable to accept the view said to be 
therein suggested that because application to do acts requiring 
sanction under Section 95 are included in an application to do 
acts which do not require such a special form of sanction, that 
therefore a tacit sanction which covers the latter, also covers 
the former. Nor can we accept the view that Section 95 does 
not apply to encroachments and obstructions which are attached 
to new buildings, but only to those which are added to old 
ones. We see nothing in the wording of the section to warrant 
this interpretation bf it, and it is obvious that the value of it 
for the protection of public streets wonld be largely diminished 
by any such interpretation. If the building now in question 
does in fact encroach upon a public street, that encroachment 
is not covered by any tacit permission to build under Section 92, 
for written permission is required by Section 95, and that has 
not been given. An encroachment upon Municipal property 
not being a street or drain, sewer or aquedact, would not ome 
within the parview of Section 95 {Ali Mardan v. Municipal 
Committee, Kohat (•), 



(M 62 P. B.. 190(). (») 27 P. H., 1901. 

(») 9 P. B., 1901, Or, (*) 27 P. fi., 1904, Or. 
(•)45P.JK., 1906. 



jni Wfl. ] OITIL JITDGMBNTS-No. 68. 94ft 



If tbe bnildiog is entirely within the bonnds of the pWntiB's 
own land, then we bold that Section 92 would apply, and that 
tacit permission wonld cover the case, bnt not so if portions of the 
building are saeh as to require written sanction under 
Section 95. 

We accordingly accept the appeal, set aside the 
judgment and decree of the learned Divisional Judge, and 
remand the case to him for rehearing and disposal according to 
law, after finding whether as a matter of fact the plaintiff has 
added to, or placed against or in front of, any building, any 
projection op structure overhanging, projecting into, or encroach- 
ing on any street, or into or on any drain, sewei* or nquednct 
therein. 

If be has n.»t, then Section 92 applies and taoit consent 
will cover the case. If he hw, Section 95 would apply and tacit 
consent under Section 92 would not cover the case. The remand 
ia under Section 662. Stamp on appeal to be refunded. Costs to 
be costs in the cause. ^^^^ ^^^^^ 

No. 63 

Before Mr. Justice Johnstone and Mr. Justice Battigan. 

FARM AN SHAH AND OTHERS, -(PunmfFs),- 

APPELLANTS, \ Appimn Sm. 

Versus 

THE SECRETTART OF STATE FOR INDIA IN OOUNCIL,- 
^"' (Dmin>AOT),-RBSPONDBNT. 

Civil Appeal No. 1298 of 1905. 

la.d Actui.iHonAct.WiA, S««<«.. U. 12. 88, 24-J««r<I ofOoU^etor 
«h<ii to b$ final-Siturt of procfdings htfor* ColUctor-Oomprtwwy <4 
„y,n«r to iu*$tion their validUy or cf Civil CouH to dtter,ni«* 0$ e<>rr»etn*$$- 
OofnrmsoHon-Prineiplf on uikieh eompon^tion should b, det,rmin*d- 
tlarktt vatiM. 

EM following S.ra r. Bocretary of fltot. (') that prooewHng. under 
the Land Acquisition Act, 1894, up to the making of an award are purely 
.dminiatmtiTe and in no way jadioial, and that therefore where a .peo.ally 
appointed CoUector prepare, under thie Act a prorieional award and refers 
H under his departmental in.traotioi.8 to the OoUeotor of the District fer 
approral and the latter h»Ting been himself also empowered to m»ke the 
acqui-ition, reduce, the amount, the final award of the Collector within 
the meaning of Section* 11 .nd 12 i. the award so reduced, and neither 
the owner of the property nor the Oiril Court is entitled to question 
this on the ground of irregolarity in the proceedings of the said Collectors. 
^TTl. B.. «X Oak., W J /. £. A, XXXIl OaU^. 



OITIL JUDGMBNTS-No. 08. [ B 



Held alto that in determiDing the amoaot of oompenaation to h% 
awarded for the property aoqxured under thin Act the "market Taloe ** 
in olaase I of Section 23 meana the value at date of notification whieli 
the property would have commanded at that date in the open maxket 
had Qovemment neyer contemplated acqnisition. It is not permissible 
to take into acoonnt sp cnlative increase in prices doe to the expectation 
that government is abont to make aoqnisitions, or even enhanced prices 
which owners may themselves have paid in excess of " market value ** as 
defined ^bove. 

Zulfikar Khan v. ColUetor of Mianwali (>), Prem Oumd Burral ▼. 
Bfcreinry of State (•>, Collector of Poona v, Kashi Nath (*\ followed. 
Parma Nand v. Secretary of State ( ), Bira Kand v. Secretary of State (•), 
Bajindra Nath Banerji (•), Nuje Kheteey (*), referred to. 

First appeal from the J decree of H. SeoU-Smiih^ B$quire, 
Divisional Judge, Baicalpindi Ditfision, dated \2th September 
1906. 

PestoQJi Dadabbai and Danlat Rai, for appellants. 

Tarner, Gh>yenimeiit Advocate, for respondent. 

The judgment of tbe Oonrt was delivered bj 

llth Feb. 19)7. Johhotokb, J.— This case and No. 1297 of 1905 are Land 

Aoqnisition cases, tbe dispute being between Government aiyd 
the owners as to the amount of oompensatioa to be allowed 
to the latter under the Act for their lands tikea away to form 
tbe Oivil Station of Oambellpore, Attock Dint riot. Oase No. 1297 
will be separately dealt with on the meriti*, though from the 
similarity of the circumstances much that I will write in this 
judgment will apply directly also to that, and alao mach 
will apply • mutatis mutandis. The figures i^ven in this judg- 
ment refer only to the present case. Preliminary to the ques* 
tioiLPf assessment o£ claims we have to deal with more than one 
by no means easy point arising out of. the procedure of the 
Revenue OflScerB who have handled the ^ase In order to 
give the raasons for my views on these points I must begin 
by setting forth the hist^nry of the whole affair, in so far as the 
record reveals it. 

In March 1903 it was fi-st tentatively decided by the 
Bxeoutive Authorities (a committee assembled on the spot) 
that the land in suit should be taken up for the new Civil 
Station.-— See Government witness No. 2, Tahsildar of Attock. 
p. 48, line 10, paper-book. ThiA same Tahsildar was directed to 

(») 90 P. B., 1906. (*) 44 P. R„ 1904. 

(■) I. L. B.. 11 Cole., 103. (•) 21 P. B.. 1905. 

(•) I. I. B- I Bom^ 585. (•) I. L. B., XXXII Cole., 843. 

' (•)I.Ji.B,XrB«l*..«r». 



Stm 1907. ) CIVIL. JUDOBUx^TS-Na 43. ^5} 



make an estimate of Talnes and he did ao, reporting on 24rth April 
1904, p. 47, line 24. Apparently there was no preliminary 
notification nnder Section 4 of the Act (I of 1894), bat only noti- 
fioation nnder Section 6, whereof one is printed at page 1 of the 
book, and is dated 22Qd September 1904. In it the Deputy Oonh 
musioner of Attack is appointed nnder Section 7 of the Act to 
take order for the acquisition ; and presumably all the other 
notifications are worded in the same way. It seems that earlier 
notifications, awarded in the same way, bo far as regards the 
Deputy Commissioner, were published and later on superseded 
by amended notifications. But earlier than this Lala Bam 
Kaih, Extra Assistant Gommissiooer, had been appointed 
'* Collector " for the same purpose— see Notification No. 345 of 
7th March 1904,— and he had proceeded to hold an enquiry 
under the Act., which ended, so far as be was ooncersed, in hie 
writing and signing the document printed at pages 2 to 9 of 
the paper-book. That document seems to deal only with tho land 
of the Tillage of Kamalpur Sayadan. This document wfts drawn 
up in the presence of the proprietors and Babu Nihal Singh, 
Sub-Oyek*ieer, Department Public Works, and Mr. Bagley, 
Executiye Engineer; aod in it the Extra Aesistant Commin- 
sioner assessed the compensation at B£. 37,011*0-6 in all, or, 
if part, of Eh was Khan, a proprietor's land was to bo made 
up by a giant of other land, Bs. 36,528-0-6. Some passagee 
in the latter portion of the document are so importiMtit that 
I must transcribe i^m verbatim **- 

^ Although my estimate does not exceed the amount 
'* sanctioned by Government for the land in question, yet it 
*'has far exceeded the estimate reported by the Tahsildar, 
** and the reason for this is that the Tahsildar did not include 
*' about 30 acres of the area of bazar, nor did he fix any separ- 
" ate compensation therefor. I have included this ar^a in my 
** estimate. 

^ I therefore according to paragraph 57 (of Revenue Ciroslgr 
" 64) think it proper to send up this award to the Deputy 
** Commissioner for approval, and for cnrders as to its annoanee* 
" ment. 

'' In conclusion I beg to submit as follows : — 

" 1. (Irrelevant for present pnrpoae). 

*' 2. Permission may also be granted for allowing the rates 
** and the total compensation. 

'' 3* Jiiaiinct orders may be passed on the c|^e of KhwM 
"Khan. 



862 



OnriL JUDGMBNTB-No. 68. [ 



'' I have told the proprietors and Baba Nihal Singh that 
"the award an legards this village will be announced after 
«*it !• approved of by the Depnty Commissioner. 

^ The original file be sent np to the Deputy Commissioner, 
"Attoct** 

This beers date 17th May 1904. 

The Depnty Commissioner did not approve of the proposed 
compensation, and took the case into his own hands and finally 
(page 13» paper-book) on 22nd November 1904, by which 
time (if not long before it) he had become spedally empowered 
to deal with the matter, pronon^if^ed an award in which 
he set down Rs. 25,071«l-9 as the figure to be paid for the lands 
in Eamalpur. The owners refused to accept his assessment 
and on 13th December 1904, to the number of 50, they filed 
objections askmgfor a reference to the Civil Court — ^pages 14 
to 16 ; and on ll^h January 1905 two more owiers filed ob- 
jections— page 26. The only detailed reference to the Civil Oourt 
that I can find is that of 7th January 1905 ; the second set of 
objecticns were simply sent on with a formal endorsement. 
Thereafter proceedings began in the Divisional Court, whioh on 
12th September 1905 awarded Rs. 32,105-6-0 in all, being 
Be. 7,000 odd over the Collector's figure but some Rs. 5,000 
below Lala Pran Nath's eBtimate. The objectors have appealed 
to this Court, and on the arguments we have heard it seems 
to me that the following preliminary questions arise— 

(•) Is Lala Pran Nath's writing of 17th May 1904 the 
award or an award at all P 

(jb) Were Mr. Bosworth-Smith, Deputy Commissioner's 
proceedings uUra vires 2 

In my opinion, which coincides with that of the Court 
below, Lala Pran Nath never made an award at alL The 
passages quoted in extetuo above from his writing shew that 
he did not conceive himself to be setting down on paper 
what Qovemment intended to pay as compensation to the 
owners. He merely made a calculation, discovered it was 
rather high, and determined to take the Deputy Commissioner's 
opinion. He asked for " permission *' to allow his rates and 
the total compensation proposed ; and he also left the matter 
of Khwas Khan wholly undecided. Therefore, whether Mr. 
Pestoajt is right in oantendiug that an award can be ^ made-*" 
see Sectiims 11 and 12 of the Act— without being then and 
tiiere aiia>auced| that is, whether the view is or is not 



July 1907. ] OITIL JUDGMIMTB— Ko. 63. 858 

correct that the makiDg ai^d the aDDonnciDg of an award 
are distiLct acts, and ilai tbe foimer may precede the 
latter by a day oi many days 1 i.cid lairiy dcciri, iii* 
asmiich as the wiiting of J7ih Mhj 19C4 is sot i^d *' ii-waid " 
at aU. 

As regal dfi the second qDestioii (&), tbe ezistence of tbe 
DotificatioiiB of wbich one is printed at page 1 of tbe book, 
makes it clear tbat on 22od November 1904, when be made and 
annoonoed his award, tbe Deputy Commissioner was fallj 
aathorised to do so. Wbether these notifioations superseded 
the appointment of Lala Fran Nath or not, we need not 
stop to enquire : they certainly gave power to the Deputy 
Commissioner. 1 am dippcsed to think that, when the 
Extra Assistant Cfmnr-iB^ioner sent up tbe file to tbe Deputy 
Commissioier tn 17th May 1904, the latter, not then em- 
powered, should Fimply baTe recorded his opinion and have 
returned tbe papers to tbe Eitia Afsistant Commissioner, 
tben tbe responsible officer, to make his awaid and announce 
it, and ebould not haYC '* tiansf erred *' the ease to himself, 
who at the time probably had no powers in the matter 
at all. Probably again, it would have been better bad tbe 
Deputy Commifsioner, wben be became empowered, carried 
out the procedure laid down in Section 11 of tbe Act, but 
I do not think tbat any of tbese irregularities, if tbey are 
such, need trouble us here. Tbe Deputy Commissioner's award 
is undoubtedly the award ir tie cafe, and we have only 
to consider tbe appeal against tbe decision of the learned Divi- 
sional Judge, and to say whetber tbe snms awarded by him are 
adequate in amount. 

Another way of looking at both tbe abore questions 
is tbat appellants sbonld not be allowed now to contend 
that Lala Pran Kath's and not the Deputy Commissioner's 
** award " is tbe award in tbe case, inasmuch as they 
expressly filed objections to tbe Deputy Commissioner's award 
and expressly asked that it be referred to tbe Divisional 
Judge. It seems clear tbat no " objections " have ever been 
filed to Lala Pi an Katb's '* aw aid," and no lefeience in 
connection with it has ever been asked for or has ever 
been made to the Divisional Court, and it may even be 
said that if the objections cf DtctmLei 19C4 axtd Januhiy 
1905 can be taken as diiected against Lala Plan Katb's 
'< awaid," tbey would be time-laned u^df r ISicticn )8 cf tie 
Act. 



ab4 omb jDMMum^i^a at. [ 



We bare also b#ard an argnmeot as to the meanixig and 

inteDtioB of paragrtplis 57 ssd 58 of BeTfnne Circnlsr Ko. 54 ; 

Ut. PeftODJi QTgiDg that, these rules are ultra vir€9 of 

GoTeriiment. It is not necessary for ns, in mj opinioa, 

to give aoy opinion on the point ; but I may say that I am 

inclined to think, on tbe strength of the Privy Oonncil mling, 

to be noticed later, that tbe criticism is nnsoand, inasmnoh 

as these proceedings np to the making of an award are 

parely administrative and in no way jadicial. 

In support and explanation of the view stated above 
I woold like to refer to a few anthorities. In the well- 
knowD case Eera v. Secretary of State (^), at pages 84 
et seq.^ y^\)\ be fcntid a diFcn^sion cf tbe pofition and dntiee 
and functions of a Collector nnder Act I of 1894. It is 
laid down that the Collector '* is not a Court " ; that until 
an award is actnally made, it is still in the power of 
Government to withdraw and to give up its intention of 
acquiring the property ; that when an award is once made, 
" the amount of the compensation fixed by tbe Collector 
" is binding on the Government, but not on the persons 
*' interested "; that no inference opposed to these propositions 
can be drawn from the circumstance that in the act the 
Collector's award and the Divisional Court's decree are both 
called *' awards " ; and that there is nothing illegal either 
in the '* Collector's " consulting (under orders of the fievenue 
or Executive authorities or otherwise) his superior officer 
as to rates, &o,^ or in his fixing tbe amrnit of compensation 
with reference to evidence not taken in the presence of the 
parties. This would diFpose of the argument, noted above, 
as to the necessity for a proceeding exactly on the lines of Section 
lIoftheAot. 

When this same case came up on appeal to the Ftiyj 
Council (*), their LordshipP agieed with the Calcutta High 
Court that (he proceedings np to tbe Collector's award 
were not judicial but merely ad minis tratrve, and also 
agreed in the inferences drawn by the High Court from this 
circumstance. 

I do not (hink any further authorities need be noticed 

in connection wilh any of the joints so far discussed; but 

I may quote Amolak Shah v. The Collector of Lahore {^)^ in 

which also tbe position and function under tbe act of a 

(»)/.!;. /?., ZXX Cole., S6. (•) L. B., XXXH Calc., 606. 

{•) U6P.B.,1906. 



ioLT iM. i oiriL it7i)Qii«»tg-ire. es. 



tii 



Collector and of the Civil Courts respectively are discussed 
under somewhat different ciroamstances. 

In opening his argnment on the merits Mr. Peskmji in- 
formed ns precisely to which items of the Divisional Judge's 
assessment he objected. It appears, pages 65, 66, paper-book, 
that he drops all objections regarding rahkar, banfar- 
jadid, banjw^hadim, and gUir mwmhin land, as well as 
"•ogwrding trees, houses, wheat crops, stone wall and fakir's 
hut. This leaves the following items still under dispute, 
010. :— 

Malta land, Upara, lipara of Ehawas Khan, chahi, and 
five weUs. 

The maira land is 80 acres, 1 rood 19 poles in area, 
and the Divisional Judge has allowed Rs. 80 per acre, 
or Bs. 10 per kanal This is the same rate as that allowed 
by the Tahsildar and Collector, and half what Lala Pran 
Nath would have given. Appellants want Bs 40. The 
learned Divisional Judge has observed that there are three 
methods of arriving at the market value of agricultural land 
la this oonntry, vis., comparison with recent sales of neigh- 
booring lands, capitalization of net profits, and valuaHon 
on basis of land revenue. In the case of maira land he 
has examined a number of instances of sales of rnaira land 
given in the list at page^ 20, 23, paper-book, and has 
rejected them all as tests on various grounds. In dealing 
with the net-profits test he suggests 20 times net profit 
as a fair valuation, which means a net profit of 8 annas 
a kanal only, if Rg. 10 ig the value per kanal. He adaiif« 
that the Colleotor allowed Ra, 3 per kanal as compensation 
for standing crops on such land ; but he does not explain 
how on such a basis he g^ts the net profit down to 8 annas. 
Tke price, Bs. .S, wus probably by no means high, inasmuch 
as the Colleotor was not a dealer, anxious to get the grain, 
but an officer, who, judging by his award in the present 
case, was not the least likely to pay much more than market 
▼alae for anything. The learned Divisional Judge's argnment 
Aat *' only a limited amount of standing ci*ops can be sold " 
to my mind establishes nothing, and is not very intelligible. 
It is no question of some «^peeial kind of orop, like tobacco 
or melons, for which there is a limited market, but of the 
ordinary staple crops of the country. Mr. Butler's estimate 
3f net profits per acre, Re. 1-7-0 only, if correctly stated, seems 
to me absurdly low. I cannot believe it would be worth . 



anj zamiQdar's while t3 oaltivafce laod at all with Raoh dismal 
prospeote. 

As regards land revenue the DiTisional Judge's own 
remarks show how hopeless a test it is. He first ohserves 
that 127 times the land reyenoe is not an nofair estimate 
of market valoe, which woald work out to aboat Rs. 36 
an acre or Rs. 4-8-0 per kanal only 50 per oent more than what 
the OoUeotor was willing to give for the standing crop, and 
a mere fraction of even the lowest rates o£ sales in reoent 
years. In short T do not at all approve of the learned Divisional 
Judge's method of dealing with the matter. I would base 
my estimate on test sales, jndioiouAly selected, and 
would by no meaos neglect the figures paid for crops. 

The sales in qaestton are Nos. 1, 5, 7, 8, 10, 14, 17, 19, 20 
and 29 in the list at pages 20, 23. I am not at all satisOed 
with the Divisional Jadgo*s reasons for rejecting these pre- 
cedents. He says Nos. 1 and 8 (Els. 50 per kanal) 
should be rejected because the areas are so small. He 
does not seem to have realised that, thoogh Gbvernmeot 
has taken np 118 acres odd, this area is not the 
compact property of one man, but is divided minutely 
into very small holdings, in some of which are manj 
shai'eholders with shares in some cases going 'as low as ^j. The 
average size of holdings is a little over 2| acres and the area 
owned by each claimant is something very low indeed. In these 
circumstanoes I see no good reason for the view that sales of 
small areas should be neglected. Next, he objects to No. 7 as a 
test because it was boughii for a graveyard. I cannot see Uiat 
this is any reason at all for rejecting it as a precedent ; but as it is 
far above what appellants claim, I am content to leave it oot. In 
No. 5 the rate is Rs. 50 a kanal. It may be that the purchaser 
wished to add it to his well-irrigated area, and he might perhaps 
be ready to pay a litle more than he otherwise would for it, bnt 
after all this is mere conjecture, and the rate is the same as in 
Nos. 1 and 8. No. 10 was sold at an absurdly low figure ; bat 
I think it should be borne in mind in assessing value— No. 14 (3^ 
kanalt) sold at Rs. 25 odd, and Na 17 (10 kanaU) at nearly 
B«. 30 a kanal^l would take both into the calculation. 
No. 19, 5 kanalit went at Rs. 50 per hmal. No reason Vliatever 
has been given for neglecting this. None of these are said to be 
inflated prices due to Government's action. About No. 29 (2i 
kanals) there is a mystery. Claimants say it was really Rs. 400 
for the equity of redemption, and that the whole bargain cost 



iuLY I90t. 1 OiyiL jtfDOMiSJTS-lto. 68. 8g7 

Rs. 1 ,350. Of this there is no adequate proof ; bat in my opinion 
there is some ground for sapposiog that mortgage rights were 
not sold for this sum of Rs. 400 bat only equity of redemption, 
and as we do not know for certaio the amount of the mortgage 
lieu, the safest way is to leave this item out of account. I 
would utilise Nos. 1, 5, 8, 10, 14, 17, 19, and 20. This last is the 
average rate given by Colonel Leigh, Collector, in 1899, for land 
taken for the ndlway— a very large area. I can see no good 
reason for neglecting the bargain Colonel Leigh, un officer of 
great experience, made so long ago as 1899 ; and in this connection 
Bee Munji Khetsey^s case (^), lii\r&. 3 in bead note. Taking all 
the numbers but the last, and keeping it as a separate test, I 
find that the average price is Rs. 28-10-6 per kanal to Colonel 
Leigh's Rs. 29.14-3. 

Considering the steady increase in the value of land every- 
where I see nothing unfair in these circumstances in fixing the 
fair value of maira land at Rs. 30 per hanaL In my opinion 
Lala Pran Nath would probably have come to a conclusion 
like this had he not made too moch of the suggestion that in 
sale deeds prices had been overstated to defeat pre-emptors. 
We are as^^ared, and it is not denied, thit no pre-emption suit 
his b93a brod^ht in the vilUge in these ten years ; and the 
list of claim int3 shews that none bub Sayads own the lands taken 
up, while the names of purchasers at pages .20—2 3 are mostly 
of Sayads. There is thus no reason to discount the sale figures. 

The Upara land comes next. Lala Pran Nath allowed 
Rs. 30 per kanal, the Collector Rs. 20, and the Divisional Judge 
Rs. 40. The area to be dealt with is en bloc, 14 acres, 3 poles and 
19 roods ; but here again it must be remembered that it is divided 
among ten holdings and many owners. The Divisional Judge has 
again refrained from making use of the evidence of previous 
sales. ( agree with Mr. Turner that the sale to Khawas K han 
should not be taken into account. I will give my reasons 
at length later, but I cannot see why the eight sales of Upara 
land. Nob. 3, 18, 21 to 24, 27 and 31 in the list at pages 20—23, 
should be wholly ignored. It is stated and not denied that six 
of these sales, being of small areas, less than a kanal each, sold 
for special reasons at Rs. 100 per kanaL But I see no reason 
why the two larger sales Nos. 3 and 27 (1 kanal 10 manias and 3 
kanal 2 marlas) should not be relied upon. The average 
price per kanal on this basis would be Rs. 52 odd per kanaL 
I see no reason whatever for refusing this. We have no safe 
materials for an estimate but these two sales. 

0)/. Ii.il., Xr Bom., 279. ~ 



tf^ cntlL J0t)(IMft«t8-No. 68. [ Baoou 

Leaviog otit the special case of Khawas Khan for the present 
we come to the chahi land. Lala Pran Nath allowed Be. 60, 
the Collector Ete. 80, and the Diyisional Jnd^o Be. 100 per 
hanal. The claim was for Rs. 300, hut in this Ooart the owners 
hold oat only for Rs. 250. The area is U acres 33 poles. As 
no sales have taken place in the village, and only one in Jassian 
(adjoining) so long ago as 1893, and fonr in another neigh- 
honring village, called Sarwala, we have not much to* go npon. 
The Divisional Judge, on the hasis of produce estimates, 
mentions the claimants * figure of Re. 250 per kanal only to 
reject it; and then he take. 127 times the land revenue, the 
estimate of Mr. Butler of the Settlement Department, and finds 
Bs. 80 per kanal the figure. Putting one thing with another, 
he fixes Bs. 100 as fair. 1 am inclined to agree that the Be. 250 
estimate is excessive ; and as the thing must be largely guess- 
work, I would not alter the Divisional Jadi^'s figure, especially 
as the wells themselves have been separately valued. For them 
the Divisional Judge has given some hs. 3,100 in all, and snoh 
wells are of no value apart from the land, so that this sum 
is really an additional compensation for the land treated aa 
chahi land. 

The claim of Be. 19,000 for the wells is simply prepostemus. 
Lala Pran Nath and the Divisional Judge, respectively, have 
allowed the following sums, if we correct a mere slip in the 
latter*s figure for the fifth well :«- 





Pran Nat 


.h. 


Divisional Jodgs. 




Bs. a. 


P- 


Rs. a. p. 


(a) Saifali SbahwaU 


1,142 





805 12 


(b) Eloshan Shafawata 


679 





503 


(e) Ohanaya Sbahwala 


757 8 





639 2 


(d) Walayat Shahwala ... 


736 





623 12 


(•) Uabanunad Sbahwala 


526 





533 12 


Total 


8,840 8 





3,106 6 



On the strength of the evidence of Bahu Nihal Singh, 
Department Public Works Overseer, page 56, line 26, the owners 
claim Rs. 25 per foot of maaonry below water. The Divisional 
Judge has given from Rs. 1 7-12-0 |)6r yard down to Bs. 1 1-12-0, 
taking the TaheildarV estimate. This officer was put in I he 
witness-box, but was never examined on this point, and we have 
no evidence but Bahu Nihal Singh's. In my opinion the 
Divisional Judge was not jastifidd in taking as evidence the 



JVliT 1107. 



CITIL iUDGMBMmi^V*. ». 



36» 



preUminAryroperiof thaXahsildftr. I woold allow tiis fiabu's 
estimate here. 

I set down here the iDoreased awards neoestary on thit way 
of lootking at the matter : — 



Wellt. 


AdditioDftl pom 

allowed by DWi* 

■ional Judge. 


W 


Bs. a. p. 

9i 8 


lb) 


47 


(c> 


68 8 


id) 


85 8 


U> 


86 4 



Additional 
now allowed. 



Bt. a. p. 
460 a 

800 

850 

150 

226 



Increase. 



Bb. a. p. 
866 80 

288 

107 8 

114 8 

188 12 



Total 
allowed for 
well. 



Bs. a. p. 
U^l 4 

768 

886 10 

718 4 

728 8 



And now we come at last to the Upara land ol E^waa 
Khan. This waa 14 kanaU in area. He porehased it on 
19th Fehmary 1904 from Nawab Shah and Amir Haidar 
Shah for Be. 2,500, «X ^^ the rate of Rs. 178-9-2 per kanta. 
This was before the earliest notification nnder Section 6 of 
the Act, and nearly a year after the assembling of the 
first Committee at Campbellpoi e which wap to decide whether 
Oovernment woold f>et np a Civil Station there, and what 
land (lovghly) wooldbe taken op. The contention of Ehawas 
Kkan ia thai the iste at which he was able to purchase— - 
his purchase waa apparently homd fide and for cash down— is 
the mte at which GoTemment shonld compensate bin, be- 
ing in accordance with the market valne at date of notification. 
Indirectly the same aignment 18 put foiward by all tha other 
claimants thos — if the market Talnc of Ehawas Khan's plot 
was really Be. 178 per kanal at date of notification 
then the market valne of all the remniniDg Upara land, and 
perhaps also of other sorts of land, similarly aitnated, waa also 
Hs. 178 per kanal, Theee persons all rely npon the first olanse 
of Section 23 of the Act, nnder which the Conrt is to take 
into account the market valne of the laud at tha date of 
notification nnder Section 6. 

Mr. Tamer for Oovemment, relies upon' the fifth olanse 
of Section 24, nnder which the Com t is forbidden to take into 
consideration " any increase in the valne of the land aoqnired 
^ likely to acd ne from the une to which it will be put when 
** acquired"; and on the difiScult question thus raised we have 
beiurd lengthy and learned argunenla* 



g60 CIVIL JUDGHBNTS-^Mo. 68. [ filoou 

To begin with, I may note that we hare abeadj ruled that 
grronnd 14 of the gronods of appeal is iDadmiesible. In onr 
opinion we cannot take into aocoont piices obtained by Goyern- 
ment in December 1905 and in 1906 on aales of portiona of the 
lands acquired. Those sales are not, and cannot be, on the 
reoord, and enhanced rates obtained on them are certainly dae 
to the cause mentioned in the fifth clause of Sectic n 24 of the 
Act. The real point for discussion is this : Bad GoTeiDineDt 
immediately upon its making known its intention to scqnire 
these lands published a notification under Section 6 of the Act, 
then without question the prices to be paid would be the 
normal market valnes of the lands at that time, irrespectiTe 
of enhancement of value, prospectiye or immediate, due to 
the intended establishment of a Civil Station and bazar at 
Gampbellpore. But Government delajcd the notification more 
than a year, and the market value of all lands on the 8poi 
and near the spot most undrubtedly have risen, if the word 
''market value " be taken in its dictioraiy hevfe and not 
in a technical sense. Khawas Khan pnrchased at a rate far 
above what had obtained in previoos years, a price which he 
would not have paid and whioh would not have been obtainable 
but for the intimation in March 1903 of the iiitentions of Goyern* 
ment, and similarly any other persons, in February 1904, cooid 
have sold at enhanced rates though perhaps not at so much 
enhanced a rate as that paid \y him. Should all this betato 
into account P Should Government have to pay for its delay 
in issuing the notification P [am inclined to think not. 

The learned counsel for the claimants have referred ns to I 
Gripps on the Law of Compensation, 4th Bdition, pages 107 
and 108. This is a work dealing solely with the law as it 
obtains in England ; and no doubt, where Indian Stat ate law 
does not afford an adequate test, or where it is obscure, the 
principles of *' Compennation " laid down in such a book might 
be usefully followed. But in the present case we have two 
sections of the Indian Act, Nos. 28 and 24, which set down 
in oonsiderable detail the rules to be followed by the Coorts 
in this country ; and for this reason, I think, we need not dis- 
ouis Mr. Oripp's ideas at all. 

The Punjab rulings to which we have been referied are 
the following : — 

I'armaNand T. Secftaty cf State (*), in which, at pages 
1S6, 137, are certain remarka regarding the necessitj for seeing 

O)^^.&,1904. 



July W7. ] CIVIL JUDaMKNT8-No. 68. 861 

what was '* the most advantageoas way in wbioh the owner 
" can dispoae of " the property, and also tbe nsefnlness of a 
valnation on net profits of booses. 

Hira l^and v. Secretary of State (*) : in this case land was 
taken np near Labore, arid the principle followed was that the 
owner is entitled to have the price of his land fixed with refer- 
ence to the ** probable nse which will give him the best return 
'* and not merely in accordance with its present nse or dis- 
" position." 

Zulfikar Khan v* Collector of Mtanwali (•): here the 
same principle was laid down, but the proviso, based npon 
Section 24, claope 5, of the Act, was iDBisted npon tha$ the 
Court must not take into account frohahle in^ ease in value due 
to the Sitting up of tie Civil Station of which it was to forma 
part. This was a ruling of a single Judge. 

This last luling is exactly in point, and I wonld follow it. 
The argument of the claimaDtB is that Oovernment's delay in 
issuing the notification has allowed actual market value to rise ; 
but to this the leply is that the rise is merely speculative. 
Government is not bound to complete an acquisition project ; «* 

and persons dealing in these lands shonld have studied the 
Act, and they would have seen what Government would have 
to pay when it came actnallj to acquire thora. 

Again, it is contended that the words of clause 5, Section 

24, do not, stiictly speaking, apply, bechOFe each plot of land 

must be taken teparately. It is aij^ued that, when the Court 

is dealing with plot A and is trying to ascertain its market 

value at date < f notificaticn (b'ecticn 23, first clause), the teat 

is the actual nraiket values (in the dictionary sense) at that 

date of the surrounding plots 6, G, D, &q. But this method 

of dealing with the matter would, except when only a single 

plot is taken up, nullify the fifth clauFe of Section 24 entirely. 

The correct way is to take the whole of the laud together, and 

to hold here that we must assess each and every plot 

at the rates that would have obtained if Government had never 

announced any intention of making a Civil Station or bassar 

at all. '. 

In regard to the '* most advantageous " use of the land as a 
test of value, here again the circumstances shew that in all 
probability bat for Government's intentions, the land would all 
have remained agricultural for an indefinite time to come. 
The principle is a thoroughly sound one, but it does not help 

(») 21| P. R, 1906. (•; fiO P. B., 1905. 



set 



OITIL JUDGlf 1NT8— No. 68. 



I fticoo 



the owners here. It was adopted in Collector of Pona v. KaM 
Nath (*) and in Prem Ohand Bwrel v. Secretary of 
State (') in which ruling I may note here that it is laid 
down also that the price which an owner may himself have 
paid for property, if above normal market valne, is no test of 
what Gbvemment should he made to pay. I approve of this 
dictum^ and it disposes of Ehawas Khan's argument based on the 
Tery high price which he paid. 

In my opinion, then, Section 23, Clause 1, and Section 24, 
Clause 5, must be read together; and market value in the 
former section means market value in the dictionary senae, 
tempered by the caution in the latter seotion. 

Bajindra Nath Banerjee^s case (*) does not help claimants. 
No doubt future utility should be taken into account in 
estimating market value ; but here, apart from tbe setting np 
of the Civil station and baear, no special " future utility ** is 
visible. 

In Strnji Khetsef/s case (*), already noticed, no doubt it is 
said that probable increase in values owing to the spreading 
of a town should be taken into aooount in these cases ; but this 
means increase of building from natural CRuses apart from 
Qovernment*s intentions with regard to the land taken up. 

I need not discuss any further authorities. 1 would have 
given Khawas Khan, had I tried the case below, compensation 
at the same rate as other owners, ».6., Bs. 52 per kanal^ but 
he has been allowed Rs. 100, and we cannot., in the absence of 
an appeal by Government, interfere with this. 

The net result, then, is as follows : I would accept this 
appeal and in modification of the decree of the Divisional Judge, 
I would award to the appellants the following sums for the 
parcels of land, Ac., indicated : — . 



Kindt of land. 



Area. 



I Rate 
! per 
acre. 



Maira 

Lipara 

Lipara of Khawas Khan 

Ghahi 

Carried over 



SO 



1 



14 



Bs. 
19 240 



416 
800 
800 



Amoiini now 
awarded. 



Rs. 
19,288 

a,18S 

i.io: 

11,365 



88,238 



14 



m I.L. «.,XB(mi.,585, 
CU.L B^nOalc^lOZ. 



(«) 1. 1. B., XXXn Ooic, 348. 
(*) l.L.B.,ZVBom^279. 



JVLTlOOt. 



OIVIL JUDOMBNTS^Ne. 68. 



868 



Kinds of land. 


Area. 


Bate 

per 
acre. 


AmonDt now. 
awarded. 






A. 


E.P 


. Bs. 


Rs. 


A, 


P. 




Bronght forward 


1 


031 


^ 40 


88,288 


14 


6 




Bakkar .., 


48 










BaDJarJadid 





021 


» 82 


6 


• 


7 




BaojarKadim 





23 


^ 32 


22 


6 


6 




GhtoMnmkin 


5 


03 


5 6 


28 


1 


6 




Treee as per Collector's award 


... 


.•• •• 


• ••• 


1S2 










Three trees at tank 


... 




. ... 


80 










Houses ^ 


... 


••• •< 


. ... 


440 










Wheat crops ^ 


... 


... 


. ^ 


82 


8 







Stonewall ^ 


••• 




• ••• 


68 










Well of SaifaU Shah .^ ' ... 


••• 


... 


... 


1,161 


4 







Well of Roshanali Shah 


... 


... * 


• .*• 


766 










Wellof Ghanaya Shah 


... 




.. ... 


886 


10 


c 




WeU of Wilayat Shah 






. ... 


788 


4 







Well of Mahammad Shah 


... 







728 


8 







Fakir's hut 


•.. 


... . 





20 










Extra for 10 kanalt las, 


••• ... 





60 








As regards 
this, we 
heard no 












I 


11 


argament. 




43,384 




Add 16 per cent., except on crops 
and trees 








6,467 


15 


1 






Total ... 


49,862 


1 





The claim made by the appellants in the Divisional Court 
was absnrdlj high, and even that made in this Court (Ba. 45,000 
odd, additional monej) was immensely more than thej were 
entitled to. Therefore, in my opinion, the parties should beai 
their own ootta. 

Rattigin, J.— I entirely agreb and have nothing to add to 12^^ F€by. 1907. 
my brother's exhaustive judgment. The appeal is acoepted 
JMTO tatUo, and each paity will hear his own costs. 



Appeal alhv$$d. 



A^ ^iVlL iUDOMJfiNTS-Ko. 64. f ttkcOK^ 



t(o. 64 

Before Mr, Justice Kensington and Mr, Justice Lai Ohand. 
HARTA,—(Dekndamt),— PETITIONER, 
ftBTisioif Bibb. I Versus 

MUL OHAND,—(Plaintipf),— RESPONDENT. 

Civil Revision No. 1015 of 1904. 

Insolvency "Omission iofram€ Bcheduie^Oreditor not debarred fromJu' 
sHtuting suit -Civil Procedure Code, 1882, Sections 861, 862. 

Held that where in an insolvency proceedings do schedule had heai 
framed as contemplated by Section 352 of the Code of Civil Procedure a 
creditor is not, by reason of bis debt bavisg betnentered in the Echedule 
filed by the insolvent with his application for insohcncy, debarred from 
suing for his debt. 

Arunachala v. A)fyavu (^) followed. 
Penhearow V. Partdb Singh (*) considered and distinguished 
Petition for revision of the order of Lala Mul Raj, Judge, 
Small Cause Courts Lahore, dated 1th January 1904. 
Jowala Parshad, for respondeot. 

This was a reference to a Division Bench mad e by Lai 
Cband, J., to determiue that where in an insolvency pro ceedings 
no scbedale bad been framed as contemplated by Section 852 
of the Code of Civil Procednre whether a creditor conld recover 
the amount of hi^ debt by a regnlar snit. 

The order of reference by the learned Judge was as follows : 

Ift* Uay 1906 . ^^ Chakd, J.— The petitioners in this case were sned on a 

bond for Rs. 53, indoding interest. Harya, defendant, pleaded 
that he had already been declared an insolvent in proceedings to 
which plaintiff was a party and of which he had due notice and 
that therefore plaintiff conld not sno him on the bond. The other 
defendant Jalal Din pleaded that the amount dnennder the bond 
had been repaid by Harya, defendant, who alone had boriowed a 
further sum of Rs. 25, which was entered in the list attached 
to the application for insclvency and theiefore he could not be 
sued. 

No evidence was produced by either side and the lower 
Court proceeded to decree the claim as defendants admitted 
having executed the bond. 

The lo^ci Court has entirely ignored the pleas set up by 
the defeDdant.s. There may be some justification for ignoring 
the ploi» Ml rp by dvf aodant 2 as ho did not produ oe any evi* 
^ r)f.l.l^F/l If Miosis. (•)76P.B.,18W, " 



iny mi. ] CIVIL JQDGMBNTS— No. 64. . g^^ 

dence to proTe that the amoant dae under the bond had been re- 
paid by Haryii, d^fendaut. Bat there was no ground for not 
decidiDg Harja*8 plea that he coald not be sued as he had been 
declared an iusolvent in proceedings to which plaintiff was a 
party. 

This plea is repeated in the application for revision, and it 
is evidently necessary to consider and decide its validity. The 
insolvency proceediogs show that the plaintiff was entered as a 
creditor in the list filed with the application for insolvency and 
th^t notice was duly served upon him, among other creditors, 
to show canse against the applicant being declared an insolvent. 
Plaiutiff, however, did not appear, though some other creditors 
did appear, and ultimately after recording evidence for the 
applicant Harya the Court declared him an insolvent under 
Section 351, Civil Procedure Code, and called creditors to re- 
gister their debts at the next hearing on 22ad December 1900. 
None of the creditors, however, appeared to prove their debts and 
the cane was accordingly ordered to bo filed on 22 ud December 
li^OO. Tlie qae3fcioQ is whjt.hji- uad )r saoh circum^tanoes 
the plaintiff, whose name is entered in the schedule filed with 
the application for insolfency, is debarred from suing on his 
bond. 

I am inclined to think he is not. 

As 1 read Section 352, Civil Procedure Code, the declara- 
tion made under Section 351 operates as a decree in favour of 
ttuch creditors only who actually appear to prove their debts 
after declaration made under Section 351 and whose names as 
such are then entered in the schedule to be prepared by the 
Court under Section 352, Civil Procedure Code. 

This view, however, does not appear to be quite consistent 
with the judgment in Fenkea/row v. Fartah Singh (^). There 
apparently a schedule prepared before the declaration made 
ander Section 351 was held to be a sufficient compliance with 
the provisions of Section 352, and plaintiff whose name was en- 
tered in that schedule was held as debarred from suing. So far 
as I can discover there is no provision in the Code for prepar- 
ing a schedule before declaring insolvent under Section 351, and 
possibly I surmise that the schedule mentioned in the 
judgment Fenhearow v. Fartah Singh was the list filed with the 
application for insolvency. If this suimise be correct it would 
not at all in my opinion comply with the provisions of Section 
352, Civil Procedure Code. As already observed the schedule 



(»)76P.B., 18^- 



866 civil' JUOeMKNTS-No. 64. C 



referred to in Seotioa 352, is a scliedale prepared after the de- 
olaratioD under Section 351, and where no each schedale has been 
prepared owing to non-appearance of the creditors to prove 
their debts woald the deoiiratioo nader Section 351 operate as 
a decree in favoar of creditors whose names are entered in the 
schedule attached to the original application for insolvency. 

As the judgment in Panhearow v. Partab Singh i^)ia not clear 
and it is at least doubtful whether it was intended to apply 
to a case like the present, I refer the case to a Division Bench 
for decision. Parties to be informed. 

The judgment of the Court was delivered by 

2nd Fsby. 1907- ^^ Ohand, J. — The facts of this case are given 

in full in the referring order and need not be recapitulated. 
The case appears to be on all fours with Arunachala v. Ayyavu (*), 
and we agree with the view taken in that case and hold 
that the suit is maintainable. Possibly there was some order 
in Penhearow v. Partab Singh (*) adopting the list filed under 
Section 345, Civil Procedure Cede, a8 a schedule under Section 
352, Civil Procedure Code. There is none however in the pre- 
sent case, and we are not prepared to hold that a list of debts 
filed under Section 345, Civil Procedure Codet prior to a declara- 
tion under Section 351, Oivil Procedure Code, is a schedule as 
required by Section 352, Civil Procedure Code. It is necessary 
that the Court should by order determine the persons who have 
proved themselves to be the insolvents' creditors and their re- 
spective debts and then frame a schedale of such persons and 
debts. In the absence of any such determination byCoortthe 
declaration under Section 351, Civil Procedure Code, that the 
applicant was ar. insolvent cannot be deemed to bo a decree in 
favour of the respondent for the amount due to him. The suit in 
consequence \a not barred as res judicata and is maintainable. 
We dismiss the petition for revision but without costs, as the 
suit is due to respondent's own failure to appear and pr«ve hia 
debt in the insolvency proceedings. 

Application dismissed. 



(t) 76 P. B., 18W. (•) l.L.B^ ril Mad., S18. 



JuiT 1907. ] CIVIL JUDGMENTS— Na 66. 8#7 

No. 65. 

Before Mr. Justice Robertson and Mr, Justice Shah Din. 

80BHA SI NGHj-CPuiNTiFP),— APPELLANT, 

Versus 

\ Appillati Sidi. 

KISHORB CHAND AND ANOTHER, -(DuFiiNDAifTs), - 

RESPONDENTS. 

Civil Appeal No. 27 of 1907. 

Oustom— Alienation by male proprietor^^Alienation of anc6stral eatate in 

ord$r to carry on speculative 8uit$ Jar pre-emption— Legal neceseity— Revision — 

Power of Chief Court to interfere on questions other than in respect of which the 

application was admitted^ Punjab Courts Act, 1884, Section 70 (1) (b) {Hi). 

Held that advanoes made to agrionltnral proprietors on the security 
of ancestral land to provide them with funds to fight out speculative suits 
for pre-emptiou can under no circumstances be regarded as incurred for 
legal necessity and alienees who make such advances cannot reasonably ask 
the Courts to regard such alienations as made for necessary purpose. 

Held also that under clause (Hi) of the proviso to Section 70 (1) (b) 
of the Punjab Courts Act, 1884, the Chief Court cannot exercise its refteional 
powers except in regard to those points in respect of which the application 
under Section 70 <1) (b) has been admitted. 

Further appeal from the decree of Qazi Muhammad Aslam, 
Divisional Judge^ Ferozepore Division^ dated \Uh July 1906. 
ChoDi Lai, for appellant. 
GUnpat Rai, for respondents. 
The judgment of the Court was delivered by 

Shah Din, J. — The suit out of which this appeal has arisen 5^A MarchlWJ, 
was brought by the plaintiff-appellant to contest a mortgage of 
530 hanals and 15 ma/rlas of land effected by his father in favour 
of the defendants on 5th October 1896 for Rs. 1,000. The 
oonsideration for the mortgage consisted of two items of Rs. 430 
and Rs. 570, the legal necessiiy in respect of which, as explained 
in the deed, was stated to be as follows : (1) Rs. 430 were to be 
paid into Court in a pre-emption puit in which an ex-parte decree 
had been obtained by the mortgagor on 8th August 1896 ; and 
(2) Re. 570 were required for purposes of another pre-emption 
case which was then pending. It appears that the sum of 
Rs. 430 was actually paid into Court by the mortgagor soon after 
the mortgage, though it was taken back by him on the ex-parte 
decree being set aside. In the other case the suit was dismissed 
and therefore Rs. 570 were never paid into Court at all. In the 
present suit the plaintiff alleged that the land wao ancestral, and 
that as the mortgage was not made for consideration and legal 



ggg CHYIL JUDGMINTS— Na 65. [ 

necessity, it was void against him and did not affect his rights 
of SDCcession to the land. The defendants pleaded that the land 
was self-acqnired of the plaintiffs' father, that the mortgage was 
for consideration and necessity, that the plaintiff had acquiesced 
in the alienation, and that the snit was barred by limitation. 
The first Court fonnd that the plaintiff had failed to prove that 
the land in snit was the ancestral property of his father ; thai 
the alienation was made for necessity, and that the plaintiff had 
acquiesced in the mortgage. It therefore dismissed the plaintiff's 
snit. 

On appeal the learned Divibional Judge, without properly 
going into the questions of the nature of the property and the 
plaintiff's alleged acquiescence in the alienation, held that the 
mortgage was for necessity, and on this ground npheld the decree 
of the first Court. 

The plaintiff applied to this Court for revision under Section 
70 (1) (6) of the Punjab Courts Aot and his revision was admit- 
ted by Mr. Jastice Chatterji as an appeal in respect of the 
question whether the necessity for the mortgage as regards the 
sum of money (Rs. 570) alleged to have been required for the 
pre-emption snit that was dismiRsed by the First Coort, was or 
was not established. The plaintiff's application fix revision 
having been admitted in respect of this question alone, we can- 
not, under clause (tii) of the proviso to Section 70 (1) (6), treat the 
question of the necessity as regards the sum of fy. 430 which 
has been decided by the Lower Appellate Court in defendants' 
favour as an open one, and the arguments on both sides were, 
therefore, limited to the alleged necessity for Rs. 570. 

Now as regards this item the learned Divisional Judge has 
contented himself with remarking that " the defendants had 
** more than sufficient reasons to believe that the money was 
" required for the purpose of acquirinjc land by pre-emption," and 
has held upon the authority of the decision of this Court in 
Uttam Singh v. Buta fifm^A (Civil Appeal No. 29 of 1902) (1), that 
*• the alienation of ancestral land for such a purpose must be 
" held to have been for valid necessity. " The authority cited, 
however, is not in point and does not snpport the broad proposi- 
tion which the Divisional Judge has laid down in this case. 
The question of necessity for an alienation has to be determined 
in each case with reference to its particular facts ; and all that 
was held in the decision above referred to v^as that the evidenoe 
on the record was sufficient to satisfy the Court ^ that the sale 
" in suit was effected for the purpose of increasing the estate of 
" the family of the appellants in Bara Pind and was an act of 
0) 67, P. L. B., 1903. 



jvLn 1907. ] oiTiL JUDGHINT8-N0. es. g69 

''good management within the power of the Tendon, and was 
" not assailable by the soor of one vendor. " In the preeeot case 
there is not the remotest snggeetionf nor is there any eTidence 
on the reoord to substantiate any such allegation, if one were 
made, that the suit for pre-emption was institated with the sole 
object of increasing the estate of the family and that the mort- 
gage tor Bs. 570 was, all things considered, an act of good 
management. No doubt there may be cases in which circam- 
stances may justify the temporary alienation of ancestral land 
by a pre-emptor for the purpose of raising the necessary funds 
to pay into Court the purchase money ; but in all such oases the 
oontemplated benefit to the pre*emptor*s estate, such as would 
support a finding as to the alienation being an act of good 
management, must be clearly and unequivocally established. 
The institution of a speculative suit for pre-emption, which, as 
here, may be unsueoessful and which may have been undertaken 
simply to satisfy a mischievous craving for litigation can, under 
no circumstances, be a sufficient justification for alienating 
ancestral land, and the alienees who advance money to pre 
emptors to provide them wifch sinews of war to fight cases of 
this description cannot reasonably ask the Courts to regard 
the alienations made in their favour as for legal necessity. 

We think, therefore, that the learned Divisional Judge was 
not justified in holding that as regards the item of Rs. 570 the 
mortgage in dispute was efiEected for valid necessity. This being 
our view, if the decision of the appeal had turned solely upon 
the question of necessity for the mortgage, we should have held 
that the plaintiff was bound by the mortgage to the extent of 
Bs. 430 only. It is urged, however, for the respondents that the 
Divisional Judge has not disposed of the other points that arise 
in the case and whieh go to the root of the plaintiff's claim, 
mi., that the property in suit was self -acquired of the mortgagor 
and that the plaintiff acquiesoed in the alienation in question. 
On both these points the first Court had found in favour of the 
defendants, and a finding on either of these adverse to the 
plaintiff by the Lower Appellate Court would have sufficed to 
dismiss his clainu As the respondents are dearly entitled to a 
decision on each of these questions, and as the Lower Appellate 
Court has not disposed of them in its judgment (the finding as to 
the 165 handle of land being ancestral property does not appear 
to have been 00 me to after a full consideration of the matter) 
we set aside the judgment and decree of the Lower Appellate 
Court and remand the case for decision with reference to the 
foregoing remarks. 

Afp$dl athw$i. 



j^ 



^70 CI^I^ JUDGIIBNTS-No. «6- [ Bmxw 

No. 66. 

Before Mr. Justice Robertson and Mr. Justice Shah Din. 
SOBHA RAM,-(Plaintifp),— APPELLANT, 
▲rruxAn Sidi« < Versus 

RAM DAS,— (DEfBM)AHT),-KESPONDEFr. 
Civil Appeal No. 1329 of 1906. 

Arbitration — Aioard — Beeeiving evidence from one side m absence of other — 
Uieconduct^ Award eet aside — Decree on merits-— Appeal-^Oompeteucjt cf 
Appellate Court to question the legality of the order setting aside avoard — 
Ciiil Ptocedure Code, 1882, Section 621. 

Where arbitmtors held meetioga and took the evidence produced by one 
party in the absence of the other party which was wholly nnayoidable and 
did not give the latter eofficient opportunity to produce his own evidence. 

Heldf that they were guilty of Judicial miscondnct within the meaniog 
of Section 521 of the Oivil Procedure Code and that their award was not 
valid, and was rightly set aside by the Gourt. 

Qu^ry— Whether, in a case in which there hat been an order of reference 
to arbitration under Section 508, Civil Procedure Oode, and an award has 
been delivered by the arbitrators but has been set aside by the Court under 
Section 521, and a decree is passed on the merits, it is open to an appellate 
Court on an appeal against that decree to consider the question of the 
legality of the order setting aside the award ? 

Further a^edl from the decree of H. Scott Smith Esquire, 
Divisional Judge, Bawdlpindi Division, dated Wth October 1906. 

Beeohey, for appellant. 

Snkb Dial, for respondent. 

The jadgment of the Court was delivered by— 

6tt March 1907. Shah Din, J.— The judgment in this appeal will also dispose 

of the connected appeal No. 1331 of 1906. 

The plaintiff Sobba Ram sued bis nephew Bam Das for 
recoTery of Bs. 1,000 cash, and for possession of 191 hancds 6| 
marlas of land on tbe allegations that on 29 tb May 1894 they 
divided their joint estate between themselves with tbe ezoeption of 
Bs. 1,000 in casb, debts due to tbe family to tbe amount of 
Bs. 1,000, and 100 bighas of land, which were set apart for tbe 
maintenance of Mnssammat Sudbi, grandmother of the plaintifF 
and mother of tbe defendant ; that the cash was intact on tbe 
death of Massammat Sudbi and came into the possession of tbe 
defendant, who also bad realised ^tbe debts for Bs. 1,000 ; that 
Mnssammat Sudbi having died, tbe plaintiff was entitled to half 
tUe sbare of tbe property in question. 



JuiT 39C7. ] CIVIL JUDQMBNTS— No. 66. g^j 

The defeudant pleaded, inter alia^ that Mnssammat Sndhi 
bad spent in her life-time the oash and the sums realised on 
aoconni of debts ; that as these items had been assigned to her 
ikfl her absolnte property she had fall control over them ; and 
that he himself had spent Bs. 1,600 on her f aneral ceremonies, 
half of which the plaintifE was bonnd to pay before obtaining a 
decree for half the land. 

On 20tb February 1906 the parties applied to the Court 
asking it to refer the matter in dispute to certain arbitrate! a 
named by them« and the Court made the order of reference 
accordingly. On the 22nd March 1906 the arbifcratore filed 
their award in Court. The award being in plaintiff's f ayour, 
the defendant applied to have it set aside on the grounds that 
the arbitrators had taken the plaintiff's evidence in the absence 
of the defendant, who was prevented from attending on the date 
fixed for evidence owing to the serious illness of his daughter 
which resulted in her death, and that the arbitrators had not 
given the defendant an opportunity to produce his own evidence. 
The Ooui*t allowed this objection and setting aside the award 
proceeded to decide the suit upon the merits. 

It found that the defendant was liable for the Rs. 2,00( 
cash and debts aforesaid, and that therefore the plaintiff 
was entitled \m Bs. 1,000. After deducting from this sum 
Bs. 400 due from the plaintiff to defendant, as the former's 
half share of the funeral expenses ineurred by the latter, 
in connection with Mosfeiammat Budhi's death, the Court 
gave the plaintiff a decree for Bs, 600 and 50 highu of 
land. 

On appeal the Divisional Judge held, with reference 
to the plaintiff's contention that the first Court should 
have passed a decree in accordance with the arbitrator's 
award, dated 22nd March 1906, that he oonld not go 
behind the order of the Court setting a side the award, 
Oanga Prasad v. Kura (<). On the merits of the ease 
he held that the Bs. 2,000 cash and debts were assigned ^ 
to Mussammat Sudhi as her share out of the family 
property and not merely for her maintenance ; that it was 
not shown by the plaintiff that the money was kept 
intact until her death, and that then, or previously, it came 
into defendant's possession ; and that though the defendant 
had performed the funeral ceremonies of the deceased lady, 
he had failed to prove that the income from her estate 

(») LL.B^ ZXnU All., 408. 



872 ^^^i^ JCBGlflKTS-No. 66. [ 



was Dot anfficient to meet the expenses ineidental thereto. 
The decree of the first Court was, therefore, modiied to 
one in fsTonr of the plaintiff for possession of 50 highat 
of land only. 

Both parties have appealed to this Conrt. In this 
appeal the first contention raised on behalf of the plaintiff 
is that the lower Appellate Oonrt had fnll power to go 
behind the order of the first Court setting aside the award, 
that the award was set aside on insufficient gronnds as 
no jndicial misoondaot on the part of the arbitrators had 
been made ont, and that a decree should haye been passed 
in terms of the award. The authorities on this question 
seem to^be rather conflicting. The plaintiff's contention 
derives some support from the decisions in Nanak Chand t. 
lUmi Narayan (^), Abdul Rahman v. Tar Muhammad (*), and 
Oeorge VasHan Boury (^), whilst the defendant's position 
is fortified by the rulings in Oanga Prasad v. Kura (^), and 
Shyamm Oharan Pramxinih v. Prolhad Dunoan (•). 

In the view, howeyer, which we take of the case it 
is nnaeoessary to oome to a decision on % the legal point 
thaa raised, as we think, after caiefnllj considering the 
Matter in issue and referring to the record, that the first 
Court was perfectly justified in setting aside the award of 
the arbitrators on the ground that the latter had been 
guilty of judicial misconduct in haying taken the plaintiff's 
evideaoe in the absence of the defendant which was 
wholly nnayoidable, and should haye been condoned, and 
in haying omitted to giye the latter sufficient opportuni^ 
to produce his own eyidenoe. 

On tha merits, aftcor hearing argument and perusing 
such portiOTs of the record as wese relied upon by each 
party in support ot his appeal, we entirely concur in the 
oendnsions ooma to by the learned Diyisional Judge in 
his oonsideced and carefully worded judgment. 

We accordingly dismiss this appeal and the appeal 
No. 1331 of 1906. The parties will bear their own costs 
throii^hout. 

Appsal dii m im id . 



(») I. L. R^ // All., 181, F. B. (•) /. L. R., XXII Mad., 202. 
(«) /. L. B., m AU., 636. (*) I. L. H., XXflll Ml., 4M, 

(•)8 0ai.fP.JW.,a*). 



%jt 1007. ] OIVIL JUDGMlNTB-^o. 0>. 8^3 



ITo. 67. 

Before Mr. Justice Johnstone. 
MANOHAR LAL,—(DiriN»ANT),— PETITIONEE, 

Versus \ BEyiiioii Sim. 

PABS EAM AND ANOTHER,— (Puliktiiw),— 
RESPONDENTS. 

Civil Revision No. 2087 of 1904. 
Ou8A)m— Fr^-«mf>«fon— Pw.ewi|)tM>n on sale of hous9 property^ Mohalla 
BarvtalOf Jagadhri-^ 

HM, that the oustom of pre-emption in respect of salea of honie 
property by reason of vicinage does prevail in MohaUa Barwala ef the town 
of Jagadhri. 

Vhan Devi V. Eanshi Ram {^), Mamon v. Ohaunsa (*), referred to. 
Pstition for revision of the order of T, J, Kennedy^ Esquire^ 
Divisional Judge, Amhala Division, dated I9th April 19C4. 

Shadi Lai, for petitiooer. 
Dwarka Das, for reepondents. 

The jadgment of the learned Jadge was as follov^s :— 

JoHlSTOWB, J.— This was a snit for pre-emption, the sale jj^j^ March 1907. 
which constituted the cause of action having been a sale bj 
aaotion ander a decree. 

The ground on which the right is based is vicinage, the 
property being a house in the town of Jagadhri in Mnhalla 
Barwala, and plaintiff owning house property immediately ad- 
joining. The first Oourt gave Plaintiff a decree, holding that 
the custom of pre-emption did prevail in the mnhalla and that 
plaintiff, even if he intended after purchase to dispose of the 
property to outsiders, was entitled to a decree. The Divisional 
Judge dismissed vendee^s appeal, and be comes up here on the 
revision side. 

The only question of any importance for this Court is 
whether the custom of pre-emption on the score of vicinage 
prevails in the sub-division or not. The mnhalla is quite small, 
said to contain 15 to 20 houses only. In so small an area it is 
not to be expected that much litigation has occurred, and I am 
inclined to agree with petitioner, see ground 2 of petition, that 
the nuhalla is not by itself a sub-division of the town. This 
brings in the neighbouring bazars and muhallas, and in them 
Aece is abundant proof by positive instances of the existence 
of the custom of pre-emption. Further, neither in the mnhalla 
itself nor in the neighbouring streets has there been a single 
O)88P,i}.»1906~ (•)t^P.JB.,lS06. ' 



874 CIVIL JDDQMiBNTS— No. 68. [ 



caae in which pre-emption was claimed and the claim met hj a 
decision against the existence of the right. In the two cases 
within the mnhalla one was decided in favonr of pre*emptor by 
an award of arbitrator and the other on a compromise. In mj 
opinion in these drcamstances the conclnsion is clear that the 
custom does prevail in Mnhalla Barwala. 

The above remarks show how this case is distinct from 
oases like Imam Bin v. Qhulam Muhammad (^)) in which it was 
laid down that where no instances are forthcoming in a 
recognised snb-di vision of a town, instances in other sab- 
divisions are insufficient to prove a custom in that sob- 
division, for here there are two instances in the mnhalla pltu 
others in the neighbouring streets which furthermost likely 
arc in the same •* sub-division ". In a similar manner I would 
distinguish Baman Mai v. Bhagat Ram (*), and I would refer to 
Dhan Devi v. Kanshi Bam (*) (Single judge), and Mammon v. 
Ohaunsa (*) (Division Bench), as supporting the above-stated 
manner of looking at the case. The last mentioned case was very 
like Die present one, though of a different town . 

As regards the plea that the claim is a benami one, I agree 
entirely with the Courts below. The law is clear: I can find 
nothing in it which prevents a pre-emptor from enforcing his 
rights because there is reason to suppose that he does not 
intend to retain the property in his own hands after he has 
secured it. 

I hold that the custom of pre-emption of houses on the soors 

of vicinage does prevail in Mnhalla Barwala, Jagadhri Town, 

and that plaintiff is entitled to enforce his right under that 

cnstom. 

Dismissed with costs. ^ 

Apphcahon dtsmtistd- 

No. 68. 
Before Mr. Justice Battigan. 
RAM RAKflA,-.(PLiiNTiff),— APPELLANT, 
AmixATi S»i. { Versus 

SANT RAM AND OrHBRS,-(DBFiiiDANT8),-RBSPONDBNTS. 
Civil Appeal No. 272 of 1907. 
austom-'Pre-empUon-Preemption on saU of shops-Katra Bamgarhian, 

dfnritsarcity. 

Pound that the custom of pre-empUon in respect of sale of shops by reason 
ofvidna^ inKatra Ramgarhian of the dty of Amritear had not been 
established. 



(I) 86 F.B., 1901, W52^-^' J^« 



JWLT 1907. ] CIVIL JUDGMBNTS-Na 68. S76 

Sundar Singh v. Mehr Singh 0) referred to. 

Furthir App$alfrom the' decree of Captain A, A. Irvine, Additional 
Division d Judge, Amritsar Division, dated 7th February W06. 

Bam Bhaj Datta for appellant. 

Tdmer f or Bespondente. 

The Jadgment of the learced Judge was as follows : — 

Battigan, J.— The question in this case is really whether ^^^ March 1907. 
the custom of pre-empticn in reFpect of thrps exists in the 
Katra Bamgarbian of Amritsar city P Mr. Bam Bhnj Oatta for 
appellant, no doubt, because be saw the diffienlty of proving the 
existence of any such custom, wished to argue that the pro- 
perty scld was n(t leally a shop but an ordinary residential 
bouse. J could not, however, see my waj to listening to this 
argument in view of the fact that the said property has both 
in the first Court, and also in the lower Appellate Court, been 
treated by.all parties as a shop. It is so described in the plaint 
and in plaintiff's own plan and the issue framed by the first Court 
on the parties' pleadings was " whether the custom of pre-emp- 
tion in respect of shops exists in Katra Bamgarbian." Apparently 
until the case came into this Court no one regarded the pro- 
perty as other than a shop, and under these circumstances I 
do not think it would be just or equitable to allow plaintiff, at 
this late stage of the proceedings, to completely alter the 
nature of his case and to argue that the property was in reality 
only an ordinary dwelling-house. The plaintiff in the lower 
Courts had the advantage of the services of one of the most expe- 
rienced members of the Amritsar Bar, and it is idle to contend 
that in cases when pre-emptive rights in towns are asserted, a 
plaintiff does not know the difference between a right of pre- 
emption as regards shope and a right of pre-emption as regards 
ordioary houses. For the purposes of this appeal, therefore, I 
must assume that the property in dispute was a shop. The 
next question is whether plaintiff , upon whom the burden of 
proof rested, has been able to prove that in the Katra Bamgar- 
bian custom recognises a right of pre-emption in respect of the 
sale of a shop? And here I have no hesitation in agreeing with 
the Divisional Judge that no such costom (which is 
of a very exceptional character) has been established. 
The oral evidence except in so far as it relates to definite in- 
stances in which the alleged custom has been net up, is necessarily 
of no value and practically plaintifi^s case rests on the four 
precedents cited by him. In a very recent case, one of these 

- 0)i4P.«.,1907. "" 



1^5 <^i^Ui juDOvmTS-No. m. I 



four precedents in facfc, a learned Jadge of thia Conrt hrfd the 
cnatom of pre-emption had not been proved to exiat in tUa 
Katra in respect to a sale of a shop (Sunder Singh v. Mehr 
Singh (*)• ^^ arriving at this oonolasion the learned Judge 
did not ignore the three other so-called precedents now relied npon 
by plaintiff. Oo the contrary he dealt with them 8peci6cally 
and held that they did not establish the existence of the alleged 
onitoni. I have myself no hesitation in agreeing with this 
conclusion. In the case of Sant Singh v. Arur Singh, which 
was decided by a Munsif, there was no enqairy into cnstom, no 
issue npon the point, and practically no finding thereon. In the 2nd 
case, Taj Singh v. Oujar Singh, the munsif, after a very summary 
trial, decided in favour of the existence of the custom upon 
the oral evidence of three or four witnesses. In the third ease, 
Mussammat Bam Kaur v. Mul Singh, the dispute between the 
parties was compromieed. I cannot regard these three inatancea 
as sufficient proof of the existence of the custom, especially in 
the face of this Court's decision in the fourth case, Sundur Singh 
V. Mehr Singh. I might also observe that this suit waa institut- 
ed on the 10th may 1905. Under the Punjab Pre-emption 
Act ( II of 1905), which came into forbe the very next day (i.e^ 
on the nth May 1905) "no right of pre-emption" exists in re«- 
( pect of the sale of a shop (see 13 (2)). I allude to this fact merely 
enpasaanttov of course if plaintifE could have proved in this case 
that the custom did exist in respect of the sale of a shop he 
would have been entitled to succeed as the sait was instituted 
one day before the said Act came into force. I hold, however, that 
* the plaintiff has failed to prove the existence of any such custom, 

and I accordingly dismiss this appeal with costs. In describing 
this as an appeal I presume that the application for rivision 
was admitted as auch under section 70 (0 (k) of the Punjab 

C«^^ ^^*- Appeal dismiued. 

No. 69. 

Before Mr. Justice BoheHaon and Mr. Justice Shah Ditk 
r MUHAMMAD DIN,— (Defendant),— APPELLANT, 

AmLLinBm. \ Versus 

i JAWAHIR AND OTHERS,-(PLAiNnFw),-RBSPONDENTS. 

Civil Appeal No. 516 of 1906. 

Oustom^AdopHon-'Adoption of daughter'$ son^Behhu Jots of ToKftl 

DaBka^aialkotDistrict-Bwrden of proof. ^ .v tv. u. 

Fof^ in a suit the parties to which were Sekhn Jate of the Darica 

Tahiil of the Sialkot District, that no caitom was proved recogniiing th e 



JucY 1907. ] OnnCi JUDGMBNTS-No. 69. 877 

ad(^tioo of a danghter*8 son in presenoe of near oollatorala, snoh as a 
oonBin or ooii8iD*8 sons, the burden of proof being upon those setting 
np snoh adoption* 

Oanpat v. Nanah Singh (*), and Nandk v. Nandu (•) referred to. 

Further appeal from the decree of TT. Chevia^ E$quire^ 
Divisional Judge, Bialkot Division, dated 9th June 1905. 

Gokal Ghand for appellant. 

Shahab-nd-din for respondents. 

The judgment of the Court was delivered by— ^ 

Sbah Din, J.— One Wadhaya, a Sekha Jat of Manzah Chak Uth March 1907. 
Ehina in the Daska Tahsil of the Sialkot Distriot, adopted his 
daughter's son in February 1904, and executed a registered deed 
of adoption in his favour. The plaintiffn, who are very near 
relations, that is, the first cousins and sons of first cousins, of 
Wadhaya, brought the suit out of which this appeal has arisen 
for a declaration that the adoption in question was invalid by 
custom. Both the lower Courts have found, after a consideration 
of the relevant clauses of the Biwaj-t-ams of 1855 and 1893 and 
upon an examination of the instances relied npon by the parties 
that the defendants, upon whom the onus lay, have failed to prove 
that the adoption was valid by custom. They have consequently 
decreed the claim. 

The adopted son appeals to this Court; and the question 
for decision in this appeal is whether, among Sekhu Jats of 
Tahsil Daska, custom empowers a Ronless proprietor to adopt his 
daughter's son. The onus of proving the validity of the alleged 
adoption lies admittedly on the appellant, and we have to see 
whether, upon the evidence adrluced by him, he has succeeded 
in discharging the onus. After giving our best consideration 
to the argument of the appellant's counsel and referring to the 
record, we think that he has not done so. 

The answer to question 19 in the old Biwaj-t-am of 18G5 is 
to the effect that in the absence of sons a brother's son, and in his 
absence, a daughter's or a sister's son can be adopted. No in- 
stances are given in support of this entry. The Biwaj-i-am of 
1893 is opposed to this, as all the tribes of the Daska Tahsil 
(in which the parties' to this case reside) state therein that it is 
only in default of collaterals that a daughter's son can be adopted 
(see Customary Law of the Sialkot District, page 22 ^answer to 
question 71), Theria being thus a Conflict between the two 

' (») 81 P. »., IWO, C»> ^ P. a, W ' 



^3 OITIL iUD«HWT8-^No. 69. [ 

Biwayi'amSf the appellant cannot rely upon the entry in the 
earlier Biwaj'Uam BSBetving io fhift the onus of proof .on to 
the plaintifb. 

The oral eyidence in the case is of no value. The OflSce 
Kanungo, who was appointed a loc^l commissioner to make an 
enquiry into the question of custom on the spot, mentions in hia 
report two old instances culled from the Settlement pedigreea 
of the villages concerned, namely, (1) in Mauzah Sahuwala, in 
which one Sher Muhammad gifted his property to his daughter's 
son, Jalal, and (2) in Mautah Bhopanwala, in which DuUa, a 
Ghima Jat, adopted his sister's son, Ditta. The judicial decisions 
relied upon hy the appellant are as follows : — 

(1) Pdkir V. Ram DiUa, decided on 29th July 1888. This is 
of no value, as the suit was held to be barred by limitation and 
there was no decision on the question of custom involved. 

(2) Sher Singh v. Doisan, decided in 1871. In this 
case the nephews of the donor contested a gift of 3rd of his 
property to a daughter's son, who had also been adopted. The 
suit was dismissed and there was ao appeal. The parties were 
Jima Jats of the Sialkot tahsil and the question of the 
validity of the adoption does not seem to ha^e been properly 
considered. 

(3) Ohanda v. Karam Dad, decided by the DiviaioBal 
Judge, Sialkot, on 25th January 1895. The parties were Ghima 
Jats of taksil Daska. The alienation in dispute was made by one 
Buta, who executed a registered will in favour of his sister's 
son who was also his son-in-law, and had apparently been adopt- 
ed by him. The plaintiffs were nephews of Buta. The Divisional 
Judge held that the defendant had been living with Buta 
as his khanadamady and that his adoption was valid by 
custom. 

(4) Mvla V. ArurOf decided by the Divisional Judge* 
Sialkot, on 17th April 1895. The parties were Bajwa Jats of 
tahsil Sialkot, and the question for decision was whether the 
adoption of a sister's son was valid by custom. 

The Divisional Judge upheld the adoption, but his deoiaimi 
was reversed on appeal by this Court, on the ground that no 
adoption had in fact taken place. 

(5) Muhammad BaJchih v. DiUa, decided in 1880. The 
parties were Sandhn Jats of tahstl Sialkot. The case was one 
of gift and not of adoption. The judgment, of which a oopy ia 
placed on the file^ does not fully state t^ fftots of the case nor 



does it properly dUouis the qaestion of custom involved. The 
plaintiffs rely apon the following preoedents : — 

{I) Ishar V. Devia^ deaidei on Isfc Jaae 1904. The 
parties were Jats resident in iahsil Daska. The Court held 
that the adoption ot a d^iughter's son was invalid by oustom in 
the presence of nephews. 

(2) Nanda v. Nanah, decided on 3Ut May 1900. The 
parties were Jats of tithsil Sialkot. The adoption of a sister's 
son was held invalid in the presence of a nephew. 

(3) Bari Singh v. Hira Singh^ decided on 2ad January 
1877. The parties irere Jots of tahsil Oaska. The adoption 
of a daaghter's son was held invalid in the presence of a nephew. 

(4) Hira v. Ditta, decided on 20bh April 1904. Parties 
were Jats of iahsil Sialkot. The adoption of a sister's son was 
held invalid in the presence of collaterals, of the adoptive father. 

Coming now to the published decisions of this Court, we 
6nd that Oanpat v. Nanak Singh (^) and Nanah v. Nandu («) 
snpport the plaintiff's contention. In Oanpat v. Nanak Singh it 
was held, after considering the entries in the Bitvaj-i-ams of 1865 
and 1893 bearing upon the qaestion of custom, that among 
Elalwan Jats of the Sialkot District the adoption of a daughter's 
son was invalid by custom. In Nanak v. Nand u it was held 
that among Ghumman Jats of the Sialkot District the adoption of 
a sister's son is invalid in the presence of a cousin. 

On the other hand, the appellant's counsel is unable to cite 
a single decision of this Court in favour of the validity of the 
adoption set up in this case. 

On the whole, then, after a careful consideration of the 
evidence and tha materials before us, we cannot but hold that 
the appellant, upon whom the onus lay of proving affirmatively 
that his adoption was valid by custom has failed to discharge 
that onus. 

The appeal accordingly fsiils and is dismissed witb costs. 

Appeal dismissed. 



(») 81 P. B., 1900. (•) 29 F. B, 1904. 



ApPBLUTB 8XDB. 



ggO CIVIL JtDGllfiNT&-No. ?0. [ BiooBto 

No. 70. 

Before Mr. Justice Chatterji, O.LE., and Mr. Justice 

Johnstone. 

HAR GOPAL,—(PLAiirrOT),— APPELLANT, 

Versus 

BHAGWAN SAHAI AND OTHERS,- (DirwrDAOTs),— 

RESPONDENTS. 

Oiyil Appeal No. 268 of 1906. 

Mortgage-* Conditional $ale— Agreement hy instalments or in default ths 
mortgage would become a eale-^Applicdbility of Regulation ZVII of 1806 to 
9ueh agreementS'-Regulation XVII of ISOQ^Stipulated period. 

Held, that a deed of mortgage whereby monej was borrowed on the 
aeourity of landed property npon a stipulation that the sum borrowed 
wonld here paid by annual instalments and in case of default as to any 
Instalment the mortgage would become a sale for the balance due at the 
time of default could not be treated as a mortgage by conditional sale 
subject to the proyisions of Regulation XVII of 1806 and is not liable to the 
conditions and incidents applicable under the Regulation to such sales. 

Bagh Sing v. BcLSawa Singh (>) followed. 

Held also, that the term " stipolated period " in Section 8 of the 
Regulation means the full term on the expiry of which the mortgage 
money is payable notwithstanding that under its terms the mortgagee 
might, on a default being made, be entitled to foreclose at an earlier 
period. 

Kishori Mohan Roy v, Oanga Bahu Dehi (*) followed. 
Further appeal from the decree of W. A. Le Bosstgnol, Esquire^ 
Divisional Judge^ Delhi Division^ dated ISth January 1906. 
Harris for Appellant. 
Morrison for Respondents. 
The jadgment of the Oourt was delivered by— 

Ibfh March 1907. Jornsiohb, J.— This is a case of a peculiar kind. The suit 

is one for possession by way of foreclosure. The deed was 
executed by one Nainu on 26th September 1890 and by it the 
land was mortgaged for Rs. 150. Nainu promiRed to pay each 
year Rs* 30 of the principal and the interest for the year and 
agreed (in the deed) that on default the land should be deemed 
sold for the balance due at time of default. Nothing was paid. 
Mortgagee caused notice to be served on Nainu (so he says) on 
5th July 1892 under the Regulation, and his case is that on the 
expiry of the year of grace (5th July 1893) he became owner 
of the properly. Nevertheless he did nothing to enforce his 
alleged rights until 6th July 1905, on which day, one day before 

i^) 60 P. B., 1906. (>) I. L. £., XZUI, Cal., 228, P. 0. 



SvLt l«oy. ] OIVIL JUtoGMJtetS— No. to. 881 

the expiry of 12 years, he filed the present sait, Naina having 
by then been dead 7 or 8 years. Defendants, Nainns' heirs, 
pleaded limitation want of oonsideration for the mortgage, 
absenoe of prior demand as reqaired by the Regulation, and non- 
serrioe of, and irregularities in, the notices. The first Conrt 
fonnd the sait within time, the notice duly served, prior demand 
made, the notice quite regular, and consideration proved, and 
gave plaintiff his decree. 

The learned Divisional Judge found that there was no time 
bar, but declioed to accept the evidence of service of notice. Ue 
therefore accepted the appeal of the defendants and dismissed 
the suit ; and now plaintiff appeals. 

In our opinion probably the better view is that the notice 
b IS not been proved to have been served. This is not one of 
those c^ses in which allowance can be made on the score of 
lapse of time, for defects in the evidence of a party. Here 
plaintiff himself, in a way that cannot fail to throw great 
doubt upon the bond Ades of his case, has waited for years after 
the death of the original mortgagor before bringing his suit. 
The heirs werb certainty all minors at the time and two of them 
aie minors even now ; and in such circumstinces very good evi- 
dence indeed is required to prove such a point as service of the 
notice. The attesting witnesses of the fact of service are alive but 
have not been called, and plaintiff relies only upon the process- 
server and a stt anger, named Eialu, whose evidence is nearly 
worthless. Such a witness as he can be procured at any time by 
Buoh a man as plaintiff. 

This is sufficient for the disposal of the case ; but, even if we 
take it for the pake of argument that the notice was doly served 
and was regular, that prior demand was really made, and that 
full oonsideration passed, there is to our mind a fatal obstacle 
to the suit. In the first place, it is more than doubtful whether 
the Regulation covers the case at all. If it does not, then 
plaintiff's cause of action accrued not on expiry of one year after 
sei^vioe of notice, but when default occurred, ». e., in 189 1 ; and 
clearly the suit would be time barred. Again, if the Regulation 
does apply, then Plaintiff should not have had notice issued 
until after expiry of the '* stipulated period " mentioned in the 
Regulation. In our opinion this phrase means stipulated period 
for redemption^ which, if there is such a period at all, must be 
at least 5 years after execution of deed, for according to agreement 
mortgagor was not obliged to pay the last instalment of the 
debt, and so to redeem, imtil 5 years had elapsed. Looked at 



$ as ^^VlL J(H>GMII9T8^]!r<v 71. [ 



in IlliB waj it miiBt ba held that the notice wad pfematare and 
00 nnele^a, atfd the result would be that plaintiff has not jet 
aoqoired ander the Begslation a good title to owDership of 
the laad. 

Afe^rdmarks about these two altoroativee will be asefal. 
In our' opinion B<igh Singh and others v. Basawa Singh and 
otheri ('), is suffioieut authority fot* the proposition that the 
Regulation does not apply to svnnYihod'hiliJodfa as the present 
one. There no stipulated period for redemption was to be found 
in the contract, but there was a condition that, if mortgagor 
failed for 6 years to pay interest, the land would ba considered 
sold for the balance of principal and interest. It was ruled thai 
the Regulation did not apply. The case was thus very similar 
to the present, and we propose to follow it. The consequence, as 
abready stated, is that the suit is time barred. 

The aaihority for the alternative propDsition will bo found 
in Ktshori Mohan Boy v. Oanga Bahu Debt ('). 

if 5 years is to be taken as the term for redemption, then 
the petition in the present c^ise for issue of foreclosure notice was 
premature and the proceedicgs under it useless. Their Lordahips 
pointed out that in such cases the right of the mortgazeu to peti« 
tion under section 8 of the Regulation docs not arise until the 
period stipulated for redemption has expired. 

We therefore dismiss this appeal with costs. 

Appeal dismissecL 



Appbllati Sidi. 



N.l. 

Before Mr. Justice Battignn. 

PATEH ALI AND OTHBBS,-(DBFBNDANrs),— APPELLANTS 

Versus 
NI^AM DIN,- (Plaintiff),— RESPONDENT. 
Civil Appeal No. 935 of 1906. 
Striking out namsB qf parties — P<noer of Court to ttrike oui the r^ame of a 
co-^endant after the first hearing— Oivil Procedure Code, 1882, Section 82. 
Beld, that it is not open to a Court nnder 8ection 82 of the Civil 
Prooedore Code, 1882, to strike oat in any case the name of a oo-defendani 
after the first hearing of the suit. 

Damodar Das v, Qohal Chand (*), followed ', Mussammai Bihi Hukam 
Kaur V. Sardar Asa Singh {*), referred to. 



(0 80 P. B., 190». (•) ^. ^' *•. ^A ^«-. 72, F. B. 

(•) /, L. je., XZU/, Coi., 228, P. 0. («) 1 P. &, 1000. 



Jfif^y 190% ] CITIL JUDOMSSnca'^o. ft 8S3 



Miscellaneous further appeal from the order of Khan Abdul 

Ohafur Khan^ Divisional Judge^ Jhelum Division, dated 

21th June 1906. 

Jalal Din for Appellants. 

Devi Dial for Rospocdent. 

The jo4gmep;t of the learned Jn(Jge w»^ »8 foihw^ ^^^ 

Battioan, J.— In a previonB enit between the preeent ISth March 1907. 
plaintiftB and the present defendantu it was held by the Revenoe 
aathorities that the former were not entitled to cecnpaney rights, 
and the latter were granted a decree for possession. Plaintiffs 
then sned in the Givil Gonrt for a declaration that they were sole 
occopaney tenants of this land and that defendants Nos. 1—5 
had no right whatever thereto. The persons impleaded as defend- 
ants Nos. 6 and 7 were admittedly the proprietors of the land. 

Defendants pleaded {inter alia) that tbe suit was barred 
under section 13, Givil Prooedare Code, by reason of the decree 
given to them by the Re venae authorities and a preliminary 
issue on thid point was struck on the 28th March 1906. 

On the 30th March the Court finding that the dispute was 
roally only- one between plaintiffs and defendants UTos. L — 5 
returned the plaint for amendment with a view to the names of 
defendants Nos. 6 and 7 being struck out. 

The plaint was amended accordingly, and the Court proceed- 
ed to decide the preliminary issue. On the 31st May the Court 
held that the suit was barred under section 13, Civil Procedure 
Code, and dismissed plaintiffs' suit with costs. This decision was 
reversed by the Divisional Judge on the ground that the present 
suit related to title and concerned persons both of whom claimed 
to be entitled to occupancy rights, and that as such it was one 
which the Revenue Courts had no jurisdiction to entertain. 
The learned judge accordingly remanded the case under section 
562, Civil Procedure Code. 

Defendants Nos. 1—5 have appealed to this Conrt and on 
their behalf it is contended — 

(a) that the suit as otiginsUy brought was olearly one 
falling under section 77 (3) (c^) of Act XYI of 1887 
as the proprietors were parties to the suit ; 

(b) that under section 53 the first Court had no power 
to return the plaint for amendment after the 
first hearing, Damoda/r Das v. Ookal Ghaniy {}) and 



0)I.L.fi.,Fn4W.,79,#.B, 



384 CIVIL JUDOHINTS^-No. 71. [ Umxm 

that conseqneiiUj tbe real and only plaiut still before 
the Court i8 the one originally filed on tbe I6(;h 
January 1906. 

An appeal of course lay under section 588 (6), Civil Pro- 
cedure Code, from the order of the first Court returning the 
plaint for amendment aod admittedly no such appeal was lodged. 
It is contended, howeyer, that the defendants can take this 
objection at this stage as the whole case is now before me ior 
determination as regards the merits of the Divisional Judge's order 
(Maha Bam Y. Bam Mahnr ('), Savitri v, Bamji (*) ). Upon 
the amended plaitU, the claim is, I think, clearly one cognisable 
by a Civil Court, for upon that plaint the dispute is between 
two parties, each asserting themselves to be occupancy tenants ; 
the proprietors of the land no longer appearing on the record 
as parties. On the other hand, the claim as laid in the original 
plaint falls equally clearly, in my opinion, under section 77 ( •) 
(d) of the Punjab Tenancy Act, as the suit was then by a person 
alleging himself to be entitled to occupancy rights as against 
the defendants of whom, at that time, some at all events were 
admittedly the landlords. Upon the ruling of the Full Bench 
Maha Bam v. Bam Maluur (*), the present objection can and 
should be considered in this appeal and the question accordingly 
is whether the Court of first instance was competent to allow 
the plaint to be returned for amendment after the first hearing. 
The decision of the Allahabad Full Bench in Damodar Das v. 
Ookal Chand (') is unquestionably a direct authority to the 
contrary, and though in some cases a plaint has been returned 
for amendment even on appeal {e. (/., in Mui8amma;t Bibi Hukam 
Kaur V. Sardar Asa Singh) (•), the power of the Court to 
allow such amendment was not considered. In the present 
case, morever, the plaint was returned for the purpese of strik- 
ing out the names of certain defendants who had (in the opinion 
of the Com t) been improperly joined as defendants, and even 
if the plaint could in other respects have been amended either 
by the plaintiffs or by the Court itself at any time before judg- 
ment the names of these parties could not have been struck out 
even by the Court after the first hearing (section 32, first para., 
Ci?il Procedure Code). In my opinion therefore the Court of 
first instance was incompetent to return the plaint for amend- 
ment in this particular after the first hearing, and I must accord- 
ingly hold that the only plaint before the Court is the one 
onginally filed. This being the cases the suit is clearly one 

(1) 1 P. R., 1908, F. B., (•) /. L. B., F//, An.,7dF.B. 

(•) I. L. B., Xir, Bm., 283, (•) 1 P. B., 1900. 



falling under Seotion, 77 (3) (d) of Aot XVI of 1887 and as 
Bnoh cognizable solely by a Revenue Conrt. Under these circam- 
fftanoes I must accept the appeal and reversing the order of the 
Divisional Judge restore the decree of the first Coart dismiss- 
ing the plaintiffs' sait. Plaintiffs mast pay the appellant's costs 
thxonghoat. 

Appeal aUawed, 



No. 72. 

Before Mr. Justice Rattigan, 

GURDITTA,- Pbfendant),— APPELLANT, 

^^^ ^AppELtiia Side. 

JAI SINGH,— (PLAMrriFF),— RESPONDENT. ) 

Civil Appeal No. 8U of 1905. 

Custom— Inheritance — Right of aister^a son to succeed in preference to the 
Jftgirdflkr ala roalik — Thakar BajpKtt in Dada Siba jfigir, Kangra District, 

In a case the parties to whiob were Tbakar Bajpnts of the Dada Siba 
Jagir in the Kangra District, held tbat tbe defendant bad failed to eFtabliah 
a cnstom whereby a sister's son inherited bis materoal nnole^s ancestral 
property in preference to tbe jagirdar ala malih, 

8wjan ▼• Lalu (*) referred to. 

twrik&r a^ppeal from the decree of Major G. 0. Beadon, Divisional 
JudgOf Hoshiarpur Division^ dated 7th April 1905. 

Sohan Lai for appellant 
Sokh Dial for respondent. 

The jadgment of the learned jadge was as follows :-^ 

Rattigan, J.— A return has now been made to my oa^jl ^^^^jl lonrf 
order of the I7th November 1906 which should be read as 
part of this judgment. Upon the evidence given on the remand * 
proceedings the Munsif is of opinion that a sister's son is entitled 
bj custom prevailing among Thakar Rajputs in Dada Siba 
/a^V, Kangra District, to inherit his maternal uncle's property in 
preference to the jagirdar ala malik. The Divisional Judge, on 
the contrary, holds that no such custom has been proved, and 
after hearing the learned pleaders for the parties I agree 
with him. There may, no doubt, be cases in the Punjab where, 
in the absence of collaterals, a sister's son or grandson is re- 
garded as an heir. But this is apparently not the case in the 

{}) 176 P. A, 1888. \ 



gg5 ^^^^ JI7DGMEKTS-Na 1Z. [ Bboqh^ 

Kangra Distriot, for in that district even a dangbter's son is 
looked upon as a total stranger so far as succeesion to anoeetral 
landed property is concerned (see " Tribal Law/' page 140). 
According to the wajib-ul-arz the ala maUh is entitled to snooeed if 
the deceased proprietor has left bim SDryiviog no persons whom 
custom regards as heirs, and to a like effect is the decision 
of this Ooort in Surjan y. LclLu {}). The question then in 
this case is whether by the custom of the parties a 8ist6r*s 
grandson is regarded as an heir in the absence of agnatioR F 
The general rule undoubtedly is that custom does not regard 
a sister or ber issue in the line of heirs— (para. 24 of the Digest 
of Customary Law). There may be exceptional oases but the 
<mu8 of proying that a sister's issue comes within the category 
of heirs rests upon the persons so alleging. Li the present case 
as the Divisional Jadge points out there is really no eyidenoe 
in support of this allegation, and the oral evidence adduced by 
appellants on the remand is unsupported by any documentary proof 
and is of no value. Had the alleged instances really occurred 
it would have been easy to corroborate the oral evidence by 
entries in the mutation registers. 

I am accordingly of opinion that no ground has been shown 
why I should reverse the original finding of the Divisional Judge 
who is an oflBcer of great experience in this district, and I there- 
fore reject this appeal with costs. 

Appeal dismissed. 

No. 7a 

before Mr. Justice Reid. 
AlWAZ AND ANOTHlfiB,^(PLAiHTiFFs),-PETlTIONEBS, 

Versus 

mnnoN 6iDB. { BIMLA-KALKA RAILWAY COMPANT,^(DEraNDAKT),— 

RESPONDENT. 
Civil Revision No. 1880 of 1905. 
Baiiwaya Act, 189G, Beetion 76 {ly^ Passenger' g hggage hooked by 
luggage van^LiahUity of a Bailway Company aa CBrrier qf articlee qf special 

Beld, that a Bailway Company is not liable for the loss of a box con* 
taioisg gold and silrer omamentB and GoverDmeDt Currency Notes of the 
Value of over Kupees lOO which had been cl trusted to it for coDveyance 
in the luggage van by a passenger nho bad not made the declaration 
preacribed by section 75 (1> of the luaian Eailways Act, 1890, 



(*) 176 P. B., 1888. 



IVLT IM. ] OIYIL JUDGMINTB-No. 78. 887 



The terms parcel or padca^ in feefcion 75 (1) included a paseengere 
Inggage. 

Muhammad Abdul Qhaffor y. Secretary of 8taU (^), referred to. 
Petition for revision of the order of Lieutenant-Colonel B. B. 
8. Taylor^ Judge^ Cantonment StnaU Cause Courts Amhala, dated 
12th August 1905. 

K. C. Obatterji for Petitioners. 

Morrison for Respondent. 

Tbfl judgment of the learned Jadge was as follows :— 

Reid, J.— This application raises the question whether a lOtt Noy. 1906. 
Railway passenger whose box, containing clothes, gold and 
sihrer ornaments of the valne of Rs. 20 or 30, and Oovernment 
Onrrency Notes of the valne of Rs. 190 has been entrusted to the 
Railway Company's servants for conveyance in the luggage van 
and has been lost or stolen, can recover the value of the box or of 
any part of its contents from the Company without having made 
the declaration prescribed by section 75 (1) of the Indian 
Railways Act, IX of 1890. 

The first contention for the applicant was that " any parcel 
or package ** in section 75 (1), does not include passenger's 
" luggage " dealt with by section 74 of the Act. This conten- 
tion has no force. The object of the rule contained in section 
74 is obviously tomake the Company liable only for property 
«>ntm8t^d to it and not for property which a passenger chooses 
to keep in his own custody, whether in his compartment or 
elsewhere, and *Muggage" consists of « parcels and packages." 

The next contention was that section 72 of the Act makes 
the Company liable as a bailee under the Indian Contract 
Act 

The presence in the section of the words " subject to the 
other provisions of this Act " adequately meets this contention 
which has no force. 

The next contention was that Currency Notes are not included 
in the second schedule to the Act« 

Clause (6) of the schedule, in my opinion, covers them. 
They are promises to pay, made by a person on behalf of the 
Government of India, although they are not included in the 
difinition of Promissary Note in section 4 of the Negotiable 
InstrumeDtB- Act for the purposes of *liat Act. 

(1) 66 P. R., 1897. 



888 CIVIL JUDGMBNTft-No. 74. [ PiocM 

They are, moreover, securities for the payment of money, 
even thongh they may not he hank notes. This contention has 
no force. The Iftpt contention is that the Company were liahle 
for the whole valne of the non-schedaled of the contents of the 
hex, and of Carreocy Notes np to Rs. 100. 

Muhammad Ahdul Ohaffoor v. Secretary of State for India (*) 
is directly agninst this contention, and section 75 (1) provides 
for freedom from responsihility, for the "loss, destmction or 
deterioration of the parcel or package " not merely for freedom, 
from rcsponfiibility for the loss of the contents of snch parcel or 
package. 

The apph'oant is not, in my opinion, entitled to recover from 
the Company in respect of the box or of any part of its contents 
not having complied with the provisions of Section 75 (I) of 
the Act. 

The application is dismissed with costs. 

Application dismtsied. 



No. 74 

Before Mr. Justice Beid. 

MOHKAM DIN AND OTHERS.- (Plaintiffs),— 
PETITIONERS, 
RlviBiON SiDl. { Versus 

MANSABDAR AND OTHERS,— (Defekdabts),-. . 
RESPONDENTS. 
Civil Revision No. 1920 of 1906. 
Juriidiction of Civil CourtSuit for removal of watercourse constructed 
with the sanction of a Canal Officer^ Northern India Canal and Drainage 
Act, 18 73, Sections 21, 22, 24, 25. 

Held ihat a Civil Court has no jnrifldiofcion to refltrain a party, to whom 
permission has been granted nnder the Northern India Canal and Drainage 
Aot, 1878, to ooDBtroot a waterconrse throngb the land of another, from 
^neh oonstrnction. 

EadirBahhshv. Bhagat Bam {*), Mehtah Singh v. HaJcim (•), BhanOm 
Bam v. Chhatta Mai (*\ Lakh Bam y. Secretary of State for /ndia (•) and 
Kishore M(han Boy Chowdhry v. Chunder Nath Pal («) referred to. 
Petition for revision of the order of Major 0. 0. Beadon, Divisional 
Judge, Hoshiarpur Division, dated 17th July 1906. 
Ram Lai, for petitioners. 

Sheo Narain, for respondents. 



/^.V i5? £• n ' IV^l' C*) 144 P. ft., 1894. 

{») 114 P. B, 1888, (•) 1. 1. M,;xir Oolc., 648. 



JUM 1907. ] CIVIL JUDGMBNTS-No. 75, 889 



The jadgment of the learned Jndge was as follows :— « 

Rbtd, J.— The qnestion for consideration is wbether a 19** ^«^* 1^^^' 
OiYil Conrt has jnnadtcHon to decree a perpetual injanetion 
restraining a party, to whom pprmisflion has been granted nnder 
the Canal Aci,VIII of 1873, to constroot a water channel 
thiongh the land of another, from constracting that channel. 

Kadir Bahhsh v. Bhagat Bam f ^), Mehtab Singh v. Eahim (*), 
Bhamhu Bam v. Chhatta If at (^), and Lakh Bam v. Secretary 
(^ State for India f *), are authority for holding that a Civil Conrt 
has no jurisdiction provided that the procedure prescribed by the 
Act has been complied with. 

The procedure adopted was not attacked in the plaint and 
no irregularity has been pointed out at the hearing. 

The plaint alleged that the proposed water channel would 
injure the plaintiffs* cultivation, and the question of compensation 
is left by the Act to the Collector. It has not been alleged that 
the assessment of compensation was inadequate and the plaint 
does not contain any allegation which could not have been urged 
in the proceedings of the Canal OflBoer or Collector. The fact 
that the proposed water channel was to run through the plaintifiF- 
petitioners* land does not in my opinion affect the question. 
The jurisdiction is the same whether the plaintiff anserts a 
right to cut a channel through the land of another, or to prevent 
another from cutting a channel through his land. 

The rule laid down in Kxshore Mohan Boy Ohcmdhry ▼. 
Chunder'SathTal{*)\^ genernl and specifically excepts oases 
from which the jurisdiction of the Civil Court is ousted. For 
these reasons I dismiss the application with costs. 

Application dismissed. 

No. 75. 

Before Mr, Justice Bdbertson and Mr. Justice Lai Chand. 

SHAHAB-UD-DIN AND OTHERS,— (PLAnmns),— 

APPELLANTS, 

1^^«^ ^AmixiTiSiDi. 

SOHAN LAL AND OTHERS,--(Defi!Ndahts),— 

RESPONDENTS 
Civil Appeal No. 367 of 1905. 
Will-^Bequett to trustees with a direction that it should he U8$d 
for eharitahU pwrpoies—Uneertaivty of the ohjectg^ Bequest void. 

Held that a bequest of property hy n Mnhammadan testator for snob 
charitable objects as the tmetpes sbonld think proper or for some sudk 

(») 71 P. B., 1888. ('^> 144 P. R., 1894. 

(•) U4 P. R, 1888, ( *) 46 P. R., 1$97, 

Bbt <») l.ii.J^XIFCaJc.,6i8, 



890 OIVTL JITDQtfllffTS— No. T5. [ Bmou 

purpose as that the testator should obtain etercal bh'ss therefrom doea noi 
create a trast as the snbjeot matter is not clearly or definitely indioatod 
and the trust is therefore void by reason of uncertainty of ita object. 

Bat Bopi V. Jamnadas Eathisang (') Bunr.hordaa Vandravandat y. 
Parvatihai C\ Smtfh y, Massey (*), /» re Jawan*8 Estufe <♦). ParhatH 
Bibee v. Ram Barm Upodhya (•), and Mariee t. The Bishop •} Durham (•), 
referred to. 

First appeal from the decree of Oaptain B. D. Fttzpatrtch^ District 
Judge, Rawalpindi, dated 3rd January 1905. 

Ishwar Das, for appellants. 

Pestonji Dada Bhai and Fazal Hosaio, for reepondents. 
The jadgmenfc of the Court was delivered by 

\9th Veer. 1906. Bobbrtson, J.— One Ghnlam Ali made a will, dated 17th 

Jnne 1901, wfaioh is printed at page 4 of the paper book m 
follows :— 

1. — My property is as follows :— 

(a) Deposit in the shop of Devi Sahai Sohan Lai, BankerSy 
Rawalpindi, Re. 10,000. 

(h) 60 Shares in Commercial Bank, Rawalpindi, vaJaed 
at Rs. 5,000, and two honses, pucca, boilt ai 
Shahjahanpnr, tofjjether with share of land in 
Bisam-nd-din*s possession, worth Rs. 2,000. 

2. T have divided the above amount in this way: that after 
defraying my funeral expenses in a reasonable manner, Rs. 2,000 
should be given to each of my wives, that is Mussammat Maryam 
Jan and Mussammat Sahara. I have accordingly written to 
Devi Sahai Sohan Lai for making the required entries. 

3. Whereas according to Mnhammadan Law, I am entitled 
to will a third of my property, I give Rs. 500 to my brother's 
son, Shams-ud-din, on account of his services, and for the 
remaining Rs. 4,500 the following respectable Mubammadana 
shall be my executors. 

1. — Khan Bahadur Allah Bakhsh. 
2.— Maulvi Nazir Ahmad. 

a— Maulvi Alftf Din. 
4, — Babu Abdul Ohani. 
5.— Sheikh Fazal Ilahi. 



(') I. L, B., JXn Bom., 774. (•) L, IL, Vlll OK, Dn. 587. 

<«) I. L., JBw, XXllI Bom., 726, (») 1. L. B., XXXI Oalc^ 89(L 
(«} /.£,.&,ZZZBpfls50a (•) 9 74$ Z9df 10 Ves! Stt. 



iotT 1007, ] CIVIL JOI)GMHNTS-No. 76. g j^ 

These tniBtees shall expend the m^aey for saoh oharitable 
objects as they think proper or they shall give it to whomsoever 
I direct or nse it in sach a way after my death that I may obtain 
eternal bliss. 

4.— JBe Ornanlents. 

5.— The Bs. 1,000, balance of Bs. 10,000 above, with Sohan 
Lai. * * * I give in equal shares to my three brothers, 
Shahab-nd-din, Hisam-nd-din and Amir Ali. 

The exeontion of the will by Ghnlam Ali while in foil 
possession of his senses is dearly proved and is now admitted. 

I'he defendants in this case are (1) Devi Sahai Sohan Lai, ^ 

the bankers, (2; the execators trastees named in clause (3) of 
the will, and (3) the two widows ; the bankers having, in accord- 
ance with written instructions fiom Ghulam Ali, written on 
17th Jane 1901, paid over the money to the beneficiaries, the 
widows and executors in accordance with the terms of their 
instructions, which correspond to the terms of the will. 

The present claimants are three brothers of the deceased 
Ohulam Ali. They urge that the will is invalid as opposed to 
Muhamniaduu Law, and that under any circumstances it is invalid 
as regards clause (3), the bequest of Bs. 4,500 for oharitable 
purposes; that danse being, it is alleged, too vagae for 
execution. 

It is admitted that the will is bad as regards those portions 
which make bequests to sharers. Consequently if the widows 
have received more than they are entitled to under Mnhammadan 
Law, t.e., I each, of this estate, decree for the balance must be 
passed against them. 

As regards the bankers Devi Sahai Sohan Lai, we think it is 
quite clear that no action can be sustained against them. They 
acted simply on the written instructions of their client, dated 
17th June 1901, duly signed and filed as Exhibit A. That letter 
is clearly genuine and constitutes a complete answer as regards 
the bankers, and the appeal is at once dismissed with costs as 
far as they are concerned. 

The real question of difficulty is as regards the ** charitable " 
bequest of Ks. 4,500. 

Clause (3) runs — " Whereas according tu Mnhammadan 
*' Law I am entitled to will a third of my property, I give Bs. 500 
" to my brother's &on, ShamS'ud-din, on account of bis services 



^^^ CIVIL nJDGMBNTS— No. 76. t fewwED 

'* and for the remainiDg Ba. 4,^00, the following respectable 
** Muhammadans shall be my execators 

****** 

** These trustees (amin^ shall expend the money for snch 
** charitable parposes as they think proper, or they shall give 
'* it to whomsoever I direct or nne it in sach a way after my 
" death that I may obtain eternal bliss. " The bequest of 500 
is not contested. 

Now it cannot be contested that the Mnhammadan Law 
permits a very wide scope to a testator as regards the ^rd of 
his property which be may dispose of by will. His power of 
disposition for expenditure on charitable or religious parposes 
is subject to very slight restriction. 

But here we )lave a direction to 5 executors whose busi- 
ness it is to realize and distribute the estate to the yarions 
claimants and beneficiaries with the least possible delay to 
dispose of a large sum upon objects which are described in 
the vaguest way. The words in vernacular are:— **Yih femin is 
•*rupaiye ko mussaraf khair men jis tarah woh munasib 
*' tassawar karenge ya jisko main dilaun ya mere bad aise kam 
'* men jis se mujh ko sawab-i-daim ho kharoh karenge. These 
** trustees (amine) shall expend the money for such charitable 
"objects as they think proper or they shall give it to whomso- 
" ever I direct or use it in such a way after my death that I 
" may obtain eternal bliss. " 

Now a definite bequest in those terms, or even a dear 
creation of a trust in those terms, would not be invalid up to the 
prescribed limit according to Muhammadan Law. The money 
IB to be expended on "charitable objects." Such charitable objects 
to be selected by five respectable persons specially named for 
that purpose. No authority was quoted to us to the effect that 
a bequest, or a trust for charitable *' purposes " when a certain 
person is, or persons are, named to select the charitable objects 
is in itself necessarily bad under Muhammadan Law. What is 
contended is that under general principles applying to all testa* 
tors alike such a provision in a will directiog executors to 
dispose of monej on such charitable objects as they may select 
is bad for indefiniteness and that in such a case it must be held 
that the money so disposed of must be held not to have been 
disposed of at all by the will. In this case although in the 
second part of the sentence the word " amin " is used it is clear 
that the five persons named are appointed as executors of the 
wiU in regard to this Hs. 4,500, and that it is as executors that 
thty are to carry out the charitable provisions. 



iiLT 1907. ] CIVIL JUDGMENTS— Na 76. g§3 



Some of the aothoritiea, viz.f Amir Ali's Mahl^mmadan Law, 
Volume 1, page 482, Bat Bapi v. Jamnadas Hathisang (> ), Bunchor- 
das Vandravandas v. Parvaiibai (^), Smith v. Mossey (•), In re 
Jarn>an'$ Estate (*) aod Parbathi Bibee v. Ram Barun Upodhya (*), 
quoted to ns on either side were in point, some were not for varioas 
reasons. As rejrards the English authorities, Mntic* v. The 
Bishop of Durham (•), is not exactly in point. There a trust 
bad been created '* to dispose of the ultimate residue on snob 
" objects of benevolence and liberality as the Bishop of Durham 
'* eha]] most approve," and this was held to be bad as not being 
a charitable trust pure and simple, and as not being capable 
of proper supervision for various reasons more or less peculiar 
to the English Law. The principles laid down in re Jarman*s 
BstcUe Leavers v. Olayton (^), however, are of more general . 
application. One William Jarman had made the following 
provision in his will : '* 1 direct that my executors shall apply 
** to any charitable or benevolent purpose they may agree upon, 
" And at any time, the residue of my personal property which 
*' by law may be applied to charitable purposes." 

The execntors accordingly gave the money to the General 
Hospital, Nothingam. 

The next of kin claimed the residuary estate on ^he ground 
that it was " undisposed of ". In delivering judgment Vice- 
Gbancellor Hall said : "I must hold that in this case the 
" direction has reference to a j^ift or trust which the Court 
'* caunot execute. It could not execute it at the date of the death 
" of the testator nor if the executors had not thought fit to 
" exercise the discretion whicb was vested in them. The observa- 
" tions in the cases show that the test is this, that the Oourt is 
" not to wait and see whether the executors will appoint to 
" charitable objects or not, but to look at (he will as at the 
" date of the death of the testator and at once say whether the 
" gift is definite, or indefinite, and if the latter, that it is 
** in )3)p'itiv=5 Thi*i is the case hero and I hold that the gift 
'* 01 the residue fails." 

In that case the residue had been actually allotted to a 
clearly charit ible object ; in tbe case before us it is admitted 
that no part of the money has as yet been devoted to any 
charitable object. In Bunchordas Vandravandas afid others 
V. Parvatibai and others (■), a bequest of the residue of the 
estate for •* dharm "by a Hindu WH8 held to be void for uncer- 



(0 I. L. R. XXII Bom., 774 (*) L. « , 8, Ch. Dn . 587. 

,•;/. L. R., KXIII Bom, 725. (*) I. L. ft., XXXl Calc, 895. 

(>) I. L. B., XXX Bom., 500. (•) 9 Tm., 399 ; 10 Fes., 6a«, 

C) L. A., 8 O/^Dn., 684. 



«94 



OIVIL iUDGMBNTS— No. 76. 



[ Rkmlo 



tainty, Marice v. The Bishop ff Durham, being followed. In thip 
case the words in vernacnlar are :— " Yib amin is mpaiye ko 
" mossaraf khair men jis tarah woh mnnaaib tasflawar karenge, 
" yah jieko main dilann ya mere bad aise kara me jis Fe mnjh ko 
** sawab-i-daim ho kharcb karenge." 

We are of opinion, following the principles laid down by 
the Hoase of Lords, and followed by their Lordships of the Privy 
Council, tbat this provision of the will most be held to be 
inoperative and void on account of ancertainty, and that the 
Rs. 4,500 disposed of thereby mast be held to be undisposed of 
and to be the property of the heirs. 

The appeal will therefore be so far accepted as against the 
ezecators as to decree Els. 4,200 to the plaintiffs. The Rs. 300 
expended ou funeral obsequies must of course be allowed. As 
the ezecators apparently acted in perfect good faith they will 
not be liable for costs. 

Appeal dUowed. 



RBYUIO.N SiDB. 



No. 76. 

Before Mr, Justice Johnstone. 

SAIDA AND 0THERS,-(Plaintifp3),-PETITI0NBRS, 

Versus 
ISMAIL AND OTHERS,-(Dbp£Ndakts),— RESPONDENTS. 

Civil Revision No. 354 of 1905. 

Ouupaney rights — SucctBsion to- A% associaie of a spnless odof'Ud 
8on has no right in prejersnce to a malt collateral relative— Pun job Tenancy 
Act, 1887, Section 69. 

Id a dispute as to the BucooBsion to oocnpancy righrs between the 
brother! of an adopted Bon who were formally associated by the latter 
with him in the tenuocy and the collateral beini of the adoptive father 
descended from the original holder of the land, it appeared ihat by virtue 
of the OQstom of the tribe applicable as regards BaocesBion to proprietary' 
rightB the plaintiffs alone were entitled to succeed. 

Beld, that the mere formal association by the adopted sou who died 
•enlesB gives no right of saccesaion under Section 59 of the Pniijab Tenancy 
Act, 1S87, to the brother of the adopted bon in presence of the near male 
agnates of the deceased's adoptive father, and that therefore the latter 
alone were e«<titled to succeed to the lacd inherited from the adopting 



July 1907. ] CIVIL JUDGMENTS— No. 76. 595 

■ ■ — J 

Nihala v. Mar Singh (»), Karam Din y, SharafDin (•), Puran Ohandlv, 
Mahadeo an^ oih«r« (*), Hnri Chand v. Dhesa <*), and Mehru v. MutsaddiH*) 
referred to. 

Petttton for revision of the order of T. J. Kennedy^ T!8quire^\ 
Bimnonal Judge^ Amhala Division, dated \9th October 1904, 

Mnhammad Shafi, for petitioDers. 

Fazl-i-Ilahi, for respondentR. 

The judgrnent of tbe learned Jnd^ was as follows !— 

JOHIISTONB, J.— This petition h«8 been admitted on the point 28ih March 1906. 
of law raised. A a the qnestions of fact are clear and hardly 
dipputed, this means admitted as rep^ards the whole dispnte. 
The learned Divisional Jndge, ajrreeinef with the first Conrt in 
his final conclasion, dismissed rhe plaintiffs' appeal with costs. 

There is no donbt that the occapancy rights in suit were 
held by Nor, father of plaintiff Saida and father's father of 
plaintiff Alia. Nnr had a third son, Pira, who adopted one 
Abdul Rahim as far back as September 1878 and made a gift 
of his occupancy rights to him. Pira died not long afterwards. 
Abdnl Rahim formally associated the defendants with himself 
in the tenancy as far back as 1882, and they had been holding 
along with him as far back as 1880. On these facts the first 
Court held that plaintifl^s have no subsisting right to succeed to 
the tenancy in preference to defendants upon the recent death 
of Mnssammat Jiwani, widow of Abdul Rahim, who Fucceeded 
to her hasband when he died in February 1892. 

The learned Divisional Judge treated the association of 
defendants with hinraelf by Al)dul Hahim as a gtft^ and held 
that only the landlord could object fn Ruch a gift, and it must 
be presomed that he has not objected. He relied upon Nihala 
V. Ishar Singh (•). Defendants are Abdul Rahim's brothers 
and nephews, and Divisional Judge says they succeed to him by 
survivorship. 

Before me a certified copy has been put in of the judgment 
of this Conrt in Civil Appeal No. 936 of 1905, decided on 28th 
June 1906. That was a suit bet.ween the landlords and these very 
defendants for the land, and the final decision was that the 
landlords had by 1 ipse of time and acquiesoenoe lost their right 
to object to what happened in 1880-82. 



( i^6S P. «., 181)4. (♦) 12 p. R, 1904. 

(•) m P. ie., 1898, F. B. (») 109 P. ft., 1894. 

(•) as P. i«., 1900, (•) 68 P. «., 1884. 



^gg civil; JUDGMENTS— No. 76. [ Kbcord 



The way I look at the case is this. Plaintiffs caDnot and do 
not now impogn the gift tt) Abdul Kahim or his adoption : 
tbose acts are now safe fiom attnck owing to lapse of time. 
Thus, Abdul Rahim undoubtedly became occupancy tenant ; and 
naturally, under Section 59 (1) (6), Punjab Tenancy Act, his 
widow succeeded him. But they say that they can impugn 
the association of defendants in the tenancy under customary 
law and they assert that here there is no time bar against them 
inasmuch as they could not sue for possession until the death 
of the widow and at the same time were ni»t bound to sue for a 
declaration. It is quite clear that apart from the act of Abdul 
Rahim of 1880-82 defendants could have no rights whateTer as 
they do not come under clause (c) of sub-section (1) of the 
aforesaid Section 59. Plaintiffs aluo contend that they and not 
defendants are the heirs of Abdul Rahim. In my opinion these 
contentions are sound and in accordance with the authorities. 

Taking the last contention first I would rf fer to puoh 
rulings as Karam Lin v. Sharaf Din (*), Pur an Chand v. Maha- 
deo and others (*) und Hari Ghand v. Dhera {^). From these 
rulings I gather that, while in cases of c^mtest between a 
landlord and others regarding sucoession to or alienation of a 
tenancy, Section 53 and Section 59, " Punjab Tenancy Act,*' 
1887, must be regarded, on the other hand, in cases of confliot 
between occupancy tenants and tbose who would be their natural 
heirs under custom or between persons claiming succession to 
an oooupancy tenancy, the holder of which has diod, and alienees 
of the occupancy rights, the same rule of custom should 
presumably be followed as regulate alienation of and succession 
to land held in ownership. I would also refer to Mohen v. 
Muisaddi{^} under which, where A is joint occupancy tenant with 
B and is A^s natural heir according to the custom of the 
tribe of Af and A dies, B does not suooeed in preference to 
by survivorship, but succeeds in preference to 5 by virtue 
of oustom. Upon these a ithorities the contention of plaintiffs 
that they, and not defendants, are the heirs to Abdul Rahim 
is dearly sound. 

For the other oontention of plaintiffs no authorities are 
needed at this time of day. I can find no article of the Limit- 
ation Act, 1877, Schedule II, which bars their claim to posses- 
sion of the tenaaoy in despite of the happening of 1880-82. 
Plaintiffs' right is to suooeed to Abdul Rahim on the death of 
himself and his widow. If he is treated as an adopted hun 



0) 89 P. R., 1898. P. B. («) 12 P. ii., 1904. 

0) 69 P. B., 1900. (*) 109 P. B„ 1894. 



JoLY 1907. ] CIVIL JUDQMENTS-No. 77. 



897 



then under costom and Section 59 (2), Tenancy Act, bis heirs, 
he being sonless, are his adoptive father's nearest male agnates 
if descended from the onginal holder of the land ; and if he is 
treated as a donee then eqaally under custom the gift, npon 
failure of his male line, reverts to the heirs of the donor. 

The Divisional Judge's mistake was that he failed to see the 
qualiCcations of Section 53 and Section 59, ** Tenancy Act," ex- 
plained in the rulings of 1894, 1898, 1900 and 1904 quoted above. 

For these reasons I would find for plaintiffs, and, accepting 
tho petition and reversing the finding and decree of the learned 
Divisional Jodge, I would direct that plaintiffs' claim be decreed 
in full with co6t« throughoot. 

Application allowed. 

No. 77. 

Before Mr. Justice Lai Chand. 

BAKU MAL AND ANO'lHEB,— (Plainiifps),— 
PETITIONERS, 

Versus } Rivmion Sidi 

MUNIR KHAN AND ANOTHER,~(DiyiiiDANis),— 

RESPONDENTS. 

Civil Revision No. 102 of 1904. 

Attachment of immovohle property before judgment^ Compensation for 
erroneous attachment— Civil Procedure Code, 1882, Section ^dl— Applicability 
to Small Cause Courts, 

Beldf that a Goort of Small Caoses baa no jurisdiction to award c<>m- 
pCDPation under Section 491, Civil Prooedore Code, for sn erroneoas attach, 
moot before jadgment of immoTable property as it iH ezoepted by the 
eecoDd schednle to the Code from attachment by each a Conrt. 

Petition for revision of the order of Lieutenant- Colonel 0. /. 
Boberts, Judge, Cantonment t^maU Cause Court, Sialkot, dated 
ith October 1903. 

Sukh Dial, for petitioners. 

Kamal-ud-din, for respondents. 

The judgment of tbe learned Judge was as follows :— * 

Lal Chamd, J. — The only poiot for decision in this case is 3^^ jVbt; 1906 
whether tbe order allowing compeuBation under Section 491, 
Civil Procedure Code, is a valid order. The suit was tried by a 
Small Cause Court w4iich under Schedule 2 of the Civil Proce* 
dure Code had no power to order^ attachment of immovable 
property before judgment. It is therefoie not a case of com- 
pensation for improper attachment provided for by Section 491, 



398 ^^^^^ JUDGMfeNtS-No. }8. [ ttMMb 

bat for an attachment which the Conrt had do jorisdiction or 
power to order. By Schedule 2 of the CiTil Procfdute Code, 
Chapter XXXIV, relatiDg to arrest and atiachmefit befoie judg- 
ment is extended to the Provincial Conrts of Smnll Causes except 
as regards immovable property. The exception in my opinion 
prohibits the Small Cause Court not only from ordering attach- 
ment of immovable property but also from determining the 
question of compensation in case an attachment is ordered by 
mistake. It would otherwitie be anomalous to hold that the 
Court had no jurisdiction to order attachment of immovable 
property but could award compensatirn for Fuch attachment if 
made erroneously. The lower Court therefore Lad no power to 
allow compensation under Sectiom 491, Civil Procedure Code, and 
its order so far was ultra vires, ,1 accept the application for 
revision and set aside the order awarding compensation under 
Section 491, Civil Procedure Code, but withont coHts. 

Application aUowecL 



Appbllatb Bids. 



No. 78. 

Before Mr. Justice Kensington aud Mr. Justice Lai Chand. 

DALIP SINGH,— (Plaintiff),— APPELLANT, 

Versus 

ISHAR SINGH AND OTHERS,-.(Di:feni)ANTS\— 
RESPONDENTS. 

Civil Appeal No. 300 of 1906. 

Eeligious inatUution^UBhtknt—duit reUiting to appointmeiU and 
removal oJ-^Right to 9ue uithout ohtaining sanction^CivU Procedure Code, 
1882, Section 539. 

Held, that a suit tot the removal of the incnmbent mahant of a 
dharameala who has misbehaved as mahant and misneed the Conds of the 
institution and for the appointment of the plaintiff in his place falls within 
the scope of Section 589 of the Code of Civil Procedure and is not 
maintainable without obtaining previous sanction of the Collector to the 
institution of such suit. 

First appeal from the decree of R J. Boyd, Esquire, District Judge, 
Hoshiarpur, dated 22nd December 1905^ 
Sohan Lai, for appellant, 
Browne, for respondents. 

The judgment of the Conrt was delivered by 
ISth Marrh 1906. ^^^ ^"^nd, J,— This is a panpor appeal in a paa^ier suit 

dismissed hy the Lower Court as unmaintaiu«ble without pluvious 



August 1907. ] CIVIL JUDGMENTS— No. 78. 899 

RanotioD obtained nnder Section 539, Civil Procedare Code. The 
Bnit relates to a dharmsala, and was instituted by plaintiff-appellant # 

for possession of its office and property by removinpf defendant 
1, wbo was admitted to hare sncoeeded as mdhant, bat was 
allegfed to have forfeited bis right to retain tbe office and the 
property owing to miscondnct and misase of endowment 
property. There was no nllegation that tho dkarrfisala in snit 
OP the property attached thereto was privsto property. The 
plaintiff allegfed that the parties, inclading defendant 2, were 
chSUiS of tbe previnns incambent ; that on his death, in Jone 
1901, defendant 1 was appointed as his snccessor and has held 
the oflBoe and property as a mahnnt^ bnt as he has misbehaved 
since his appointm^^nt, plaintiff be appointed as a mahant in his 
place and be placed in possession of the dharmsala and of the 
property attached thereto. The suit as instituted clearly falls 
within the terms of Section 589, Civil Procedare Code. There is 
no reason for doubting that the dharmsala with its appurte- 
nant property constitutes a trust for public, charitable and 
religious purposes. The plaintiff alleges that the defendant 1 
has committed a breach of such trust by misbehaviour as mdhant 
and misusing in debauchery the trust property. He asks for re- 
moval of tbe defendant and for his own appointment as a mahant 
who is a mere trustee of endowed property, Bamanathnn Ohetti v. 
Murugappa ChetH (^). The view taken by the Lower Court is 
thorefore evidently correct. The pleader for appellant referred to 
and relied upon Batot Sukhram T>a8 v. Bnrham Puri ('), 
8ewa Singh v. Budh Singh (*), and Mttssammat Monijan Bihee v. 
Khadem Ho8$ein (*), to support his contention that previous 
consent nnder Section 539, Civil Proceduro Code, was not 
requisite in the case. But these were not cases of any alleged 
breach of trust or of removal of a trustee. Sukhram Das v. 
Barham Puri (*) was a suit by a person claiming as the 
lawful mahant for possession of the property of the shrine from a 
person who was alleged to have dispossessed him of the property. 
Sewa Singh v. Budh Singh (') was a suit by worshippers of a 
dharmsala to set aside certain alienations effected by the mahant , 
but there was no prayer to remove him and to appoint a new 
trustee in his place. Monijan Bihee v. Khadem B ostein (*) 
was a case of a dispute between rival parties, each claiming 
to ezeroise rights as matwallis over wakf property. Not a single 
authority was quoted where Section 539 was held inapplicable 
to a suit for removal of the incumbent mahant, and appointment 
of another person in Ms place on an allega tion of a breach of 

(i) /. L. B., XXIX Mad., 283, P. 0. (M 6G P. B., 1892 . 

(•) 122.P. B., 1890. (*) 9 OaU., W. N., lol. 



400 ci^L judgments-No. 79. [ riooed 

trnst. The view wo tako is farther supported by S(^€dur Raja v.. 
« B'tidyanath Deb (^), Sajedur Raja v. Oour Mohun Da«'(*), and 

Bayod Hussein Mian v. GolUctor of Kaira (^)qaoted in the jadg* 
ment of the Lower Oonrt. It was attempted for appellant to dis« 
tnguish these cases by poiDtiog oat that the plaintiff in the 
piresent snit has asserted his own personal right to be appointed 
as a fMihant. Bat the distinction relied upon appears to as to be 
altogether immaterial. The relief asked for by plaintiff is 
defendant's removal as a tnaha/nt by reason of an alleged 
breach of trnst on his part, and it is evidently immaterial 
for applying Section 539 that the person asked to be 
appointed in defendant's place on removal be plaintiff himself, 
or another fit person. The gist of the snit is to secure a proper 
administration of trnst properties, and the alleged canse of 
action is a breach of trnst by the incnmbent mahatU. Even, 
ni order to secnre his own appointment, it is necessary for 
plaintiff to sne for removal of defendant on an allegation of 
breach of trust, and he cannot obviously do so without obtain- 
ing consent of the Advocate-General as required by Section 539. 
Section 539, Oivil Procedure Oode, is therefore clearly applicable 
and the suit instituted without such consent is palpably unmain- 
tainable. We, therefore, agree with the Ejower Court and 
dismiss the appeal with costs. It may be pointed out that the 
Lower Court having dismissed plaintiff 's suit ought to have passed 
an order under Section 412, Civil Procedure Code, directing 
the plaintiff to pay the Court-fees which would have been 
paid by the plaintiff, if he had not been permitted to sne as a 
pauper. We feel incompetent to correct the omission on appeal 
filed by plaintiff, but under Sections 592-^ 12 we order the plaintiff- 
appellant to pay the Court-fees which would have been 
paid by him if he had not been permitted to appeal as a pauper. 

Appeal dismissed. 

No. 79. 

Before Mr. Justice Kensington and Mr. Justice Lai Chand. 

UMRA AND GTBltlRS,— (Pl4XNTifp8),-.APPELLANTS, 

Versus 
Appblutb Sim. J MUHAMMAD HAYAT AND OTHERS,— (Dipbndants),— 

RESPOKDENTS. 
Civil Appeal No. 1046 of 1906. 
Ruihandand vftfs^ Legitimacy of children - Presumption a^to legitmacy of 
child bom after marriage ^Evidence Act, 1872, Section 112. 
He'd, that on the birth of a ohild daring marriage the presamption of 
legitimacy !■ conclaaive, no matter how soon the birth occorB after the 
marriage, 

(>) /. L. B., XI Oalc., 397. (•) /. L R„ XUV Calc., 418, 

(•) I. L. R., XXI Bom., 49. 



August 1907. ] CIVIL JUDGMENTS— Na 79. 401 



Further appeal from the decree of Qazi Mtihammad Aslam, O.M,0,y 
Divisional Judge^ Ferozepore Division^ dated bth July 1906. 

Goaldsbarj, for appollanta. 
Mohammad Sbafi, for respondents. 

The judgment of the Conrt was delivered by 

Lal Chand, J. — It is unnecoflsary to reoapitnlate the llth March 1907. 
factri in this case which are pjiven in fall in the jadgmonts 
of the Lower Oonrts. The two poinfa argaed in appeal 
were that Saban was not married to Halim and that 
Muhammad Hajat, respondent, is not his legitimate son. 
As regards man-iage, the fact was admitted for plaintiffs 
in the Lower Appellate Coart, thcmgh denied in the 
grounds of appeal filed in that C