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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
OB
"^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. Rahman^
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
0
'd
^sg
0
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 jfTPU'iiHWTa 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"*tanflft| 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 ooi'tobtorlit^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
0
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. 0 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 0 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), (Ij) 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 subsequent 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
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00
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s S
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08
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P es
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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 rspiesitttsd 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 0 ,
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* property by rengon of vicinage has been establiahad to prevail
(») /. 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 passisflieo 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, 0 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 0
0
805 12 0
(b) Eloshan Shafawata
679 0
0
503 0 0
(e) Ohanaya Sbahwala
757 8
0
639 2 0
(d) Walayat Shahwala ...
736 0
0
623 12 0
(•) Uabanunad Sbahwala
526 0
0
533 12 0
Total
8,840 8
0
3,106 6 0
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 0
lb)
47 0 0
(c>
68 8 0
id)
85 8 0
U>
86 4 0
Additional
now allowed.
Bt. a. p.
460 0 a
800 0 0
850 0 0
150 0 0
226 0 0
Increase.
Bb. a. p.
866 80
288 0 0
107 8 0
114 8 0
188 12 0
Total
allowed for
well.
Bs. a. p.
U^l 4 0
768 0 0
886 10 0
718 4 0
728 8 0
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 0
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
0
0
BaDJarJadid
0
021
» 82
6
•
7
BaojarKadim
0
23
^ 32
22
6
6
GhtoMnmkin
5
03
5 6
28
1
6
Treee as per Collector's award
...
.•• ••
• •••
1S2
0
0
Three trees at tank
...
. ...
80
0
0
Houses ^
...
••• •<
. ...
440
0
0
Wheat crops ^
...
...
. ^
82
8
0
Stonewall ^
•••
• •••
68
0
0
Well of SaifaU Shah .^ ' ...
•••
...
...
1,161
4
0
Well of Roshanali Shah
...
... *
• .*•
766
0
0
Wellof Ghanaya Shah
...
.. ...
886
10
c
WeU of Wilayat Shah
. ...
788
4
0
Well of Mahammad Shah
...
728
8
0
Fakir's hut
•..
... .
20
0
0
Extra for 10 kanalt las,
••• ...
60
0
0
As regards
this, we
heard no
I
11
argament.
43,384
Add 16 per cent., except on crops
and trees
6,467
15
1
0
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 diimimid.
(») 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 the
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 0 is A^s natural heir according to the custom of the
tribe of Af and A dies, B does not suooeed in preference to
0 by survivorship, but 0 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 allegation 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 Court. It was, moi cover,
admitted by Shamira, one of the collaterals in the mat^tion
proceedings, which were effected in favour of the respond-
ent Muhammad Hayat in 1900-1901 shortly after death
of Halim. Plaintiffd-appellants then took no objection
that Saban was not the married wife of Halim, or that
Muhammad Hayat was not his legitimate son. Muhammad
Hayat was not only perrriited to succeed to Halim's whole
property (300 ghumaos in area) but also allowed to be
appointed as a Lambardar in Halim's place under the
sarbarahi of Shamira, one of the collaterals. The marriage
is farther supported by oral evidence, which has been
credited by the Lower Courts and the omission to produce
the Nikah Khawan was explained as due to his illness,
which is not improbable. The negative evidence produced
by plaintiffs against marriage is of no value. Considering
their dilatory conduct in instituting the present claim, six
years after succession had opened, coupled with their
omission to raise any objection at the mutations, we have
no hesitation in accepting the concurrent finding of the
Lower Courts that Suban was married to Halim. As
regards legitimacy it was not denied that Muhammad Hayat
is Suban*s son. We entirely discredit the evidence
produced by plaintiffs to show that he was bora
before marriage and was brought to Halim's house
by Saban. The evidence is opposed to the entry in the
village birth register, which shows his birth on 22ad
November 1899 in the village of Halim. Aooording to
Suban's statement in the mutation proceedings and in the
present suit, she was married to Halim in the month of
phagar^ preceding the birth . of defendant 1, but even
402 OIVIL JUDGlf BNTS— Na 80. [ Rscosd
assaming, as saggeeied for the plaintiffs, that the m%rriage
took place on the Ist of Baisdkh^ $.«., aboot 7^ months
befrre birth, the time which elapsed between marriage and
biilh is altogether immsterial for detei mining legitimacy.
As pointed oat in Amir Ali*6 Law of Evidence, at page
671, under Section 112 of the Evidence Act, '' So far an
'^concerns descent from paiticnlar parents, a child bom
''daring wedlock is presnmed accoiding to English Law to
" be the legitimate isfne of sneh pnrents, no matter how soom
" the birth he after marriage. When a man marries a woman
" whom he knows to be with child, ho nray be coiisidcrrd
** as acknowledging by a most solemn act that the cUld is
*' his. The present section following English Law adopts
** the period of birth as distingnished from conception as
** the turning point of legitimacy. It is a peooliarity of
" that law that it does not concern itself with the oonooption,
" but considers a child legitimato who is 6orfi of parents
'* married before the time of his birth, though they v?ere
** unmarried when he was begotten.'* There is, therefore, a
conclusive presumption under Section 112, Evidence Act,
that Muhammad Hayat, who was bom during the con-
tinuance of a valid marriage between his mother and Halim,
is Halim*s legitimate son, irrespective of the question
whether he was bom six, seven or eight months after
snoh marriage. We accordingly uphold the findings of the
Lower Courts that Muhammad Hayat., respondent, is the
legitimate son of Halim, and dismiss the appeal with costs.
Appeal dismissed.
No. 80.
Before Mr. Justice Chatterji, CJ.B., and Mr. Justice
Johnstone.
EIBPA RAM,— (Puintiff;,— PBllTIONEB,
Versus
RivisioN Bids. J KHUSHALI MAL AND OTHERS,— (DbfkndaiitsX—
RE8PQNDBNT&
Civil Revision No. 1958 of 1906.
Cuslom^Prs-€mpti<m' Pre-emption in respect to sol« cf shops m
viUages^Punjah Pre-emption Aet^ 1905, Sections 18, 13 (8).
Held, that rab-seotlon 8 of Seotioii 18 of the Punjab Fre-emption Aei,
1906, it inapplicable to Bhope Id villages. The castom of preemption ezista
At6U8T 19(Kr. ] CIVIL JUDOIIBKTS-Ko. BO. 403
in respect io saob shops sabjeot to the proYisions of Section 18 of
that Act.
Petition for revision of the order of Lola Karm Ohand^
District Judye, Oujranwalat dated 1th April 1906.
Boeban Lai, for petitioner.
Dharm Das, for respondeDtB.
Tbe judgment of the Goort was delivered by
CHATTEBn, J.— This is a suit for pre-emption of a shop in a 18^^ March 1907.
Tillage which has been thrown ont on the preliminary ground
that snch snits in rei>peot of shops are barred under sob-section
(2), Section 13 of the Punjab Pre-emption Act.
In our opinion this construction is erroneous. In the first
place the provision against pre-emption of shops has been
inserted in a sub-olause of Section IH which deals ezclosively
with pre-emption in regard to nrban immovable property.
Ordinarily the presumption would be that the provision was
limited by the scope of the seotion unless indeed the language
was distinctly to the contrary purport in which case it would
of course have its full effect. Bat in soch a case the drafting
would bo open to condemnation as nnsoientific. A rule of the
above description if it was intended to have general operation
would have been inserted in a section by itself and not made a
subordinate clause of one dealing exclusively with urban
immovable property. It is to be noted that the scheme of the
Act divides immovable property which is the sobjeot of
pre-emption into two g^nd divisions, rtt., village land and im-
movable property, and (2) nrban immovable property, and
separately provides rules for claims in respect of each. This is
also an essential point to be borne in mind in construing the
Act and in jadging the significance of the prohibition against
pre-emption of shops, eta, being enacted in a sub-Section of a
seotion relating to urban property.
Again, Section 12 provides for pre-emption of land and
village immovable property and the latter expression has been
defined in Section 3 (2) to mean immovable property within
the limits of a village other than agricultural land. This com-
prehensive definition would include shops in a village and
Sections 13 and 12 and in fact the whole Act shoold according
to a cardinal rale of interpretation be construed together.
The only tangible objection to* the above interpretation
is that dharmsalaSf mosques, etc., would nnder it be sabjeot to
prr-empti3n. But baildings of this kind are res extra oommer*
cium as Mr. Shadi Lai points oat in his Commentary on Section
404 CIVIL jai>GMENTS-No. 81 [ Bbooed
13, and ono can hardly conceive of pre-emption being brought
in respect of them. None has been brought in the past. If
however a special proviHion was needed for them it woald havo
been made in Section 12, or sab section (2) of Section 13 might
have been made an independent section and worded so as to
make it of general application.
This, however, does not affect the question before us. We
must construe the Act aa a whole, and each section with re*
ference to its subject matter, unless the language or context
is plainly otherwiee, and we havo no difficulty in arriving at the
conclusion that sub-section (2) of Section 13 does not apply to
shops in villages and that the plantifiFs* claim is not barred
thereby.
We accept the application and, reversing the decrees of the
Lower Courts, remand the case to the Court of first instance
to decide it on the merits.
Court fee on the petition ib refunded. Other costs to
abide the result.
Applieation allowed.
No. 81.
Before Mr. Justice Chatterji, CLE., and Mr. Justice
Johnstone.
ACHHAR SINGH AND OT-JERS,— (Plaintiffs),—
APPELLANTS,
Appellate Side I Versus
MEHTAB SINGH AND ANOTHER,— (Dbpendaxts),—
RESPONDENTS,
Civil Appeal No. 142 of 1907.
Custom^ Adoption-- Adoption of daughter*8 son^Bindu Nandan JaU cf
DasvKa tahsil, Hoahiaipur Di$trict — Burden of proof- Riwaj-i-ara,
Foundj in a case the parties to which were Jata of the Nandan got
of Dasoha tahail in the Uoshiarpur District, thHt ptaintiffs open
whom, in the special circumstances of the case, the onus rested had failed
to prove that the adoption of a dangbter's son was invalid by
custom,
Balla V. Budha ('), N*ttha 8in^h V. Sujan Singh (*), referred to,
OhuUu V. Mohabat (") distinguished.
Further appeal from the decree of Major O. 0. Beadon^ Divi-
sional Judge, Uoshiarpur Division, dated 26th October
1905.
(«) 50 F. B., 1803, F. B. (•) 34 F. /?., 1899.
C) 92 F. R., 1891.
Aq«UsT 1907. ] CIVIL JUDOMENTS— No. SI. . ^^
Bodbraj Sawhoy, for appellants.
Soban Lai, for respondents.
Tbe judgment of tbe Conrt wns delivered hj
JoHNSTOHB, J.^In tbis case tbe plaintiffs, reversioners of 19^;^ March 1907,
Mabtab Singb, Jat, of the Dasnba tahsil of Hoebiarpar,
who is defendant 1 in tbe case, Oontest tbe adoption by
defendant 1 of defendant 2, daughter's son of defendant 1,
and ask that it be declared that tbe adoption shall not
affect their rights. The factum and validity of the adoption
having been put in issue, the first Court decided that tbe
adoption certainly took place, and that it is valid by custom.
The learned Divisional Judge, in a brief judgment, took the
Rame view and dismissed the appeal, without summon-
ing the defendants. Plaintiffs come up on the revision side
ander clause (6) of Section 70 (1), Punjab Courts Act, and
their petition has been admitted as an appeal in regard
to the question of the validity of the adoption only. After
hearing the learned counsel for the appellants, we have
arrived at the conclusion that the decision of tbe Courts below
is sound.
The Bitoaj't^am is as regards Jats in tbe district gener-
ally altogether against the plaintiffs, and it must be
borne in mind that where it favours females, a special value
attaches to such a document, framed as it always is accord-
ing to the stated views of males only. It is true that
no instance in this gSt (Nandan) is forthcoming one way
or the other; and from tbis Mr. Sawhny argues that, in-
asmuch as the general presumption for tbe Jats of the
Province as a whole is against the validity of such adop-
tions, RaUa V. Budha (*), and inasmuch as in this got there is
CO rebuttal of this presumpticn, tbe decision should be in
favour of plaintiffs. Ordinarily there might be some force
in an argument of this kind, but here ppecial circumstances
supervene to render it of no effect. Besides tbe Exwaj-i^Mn^
-which is for all the Jats of the District, we have the circum-
fitanoe that in many gots (e.g., l^afha Singh v. Hujan Singh (^),
and Civil Appeal No. 1296 of 1905) of Jats of tbe District and
even in this very tahsil of Basuha^ it has been found, and is un-
doubted, that the adoption of a daughter's son in the
presence of near collaterals is valid. The ruling of Ludhiana
District quoted before xia, OuUu y. Mohahat (^\ is a case of
( ») 60 P. B^ 1898, F. B. (•) 84 P. B., 1899.
(•) 92 P. fi., 1894.
406 CIVIL JODGMBNTfi-Na 82. [
Rbiibbmoi Sim.
a sifter's eon and so ofieleaB* In oar opinion it is Yery
nnlikdy that this small git should have a separate cnstom
of its own, mixed up as it admittedly is in residence with
other g6t$ and inhabiting a tract in which among Jats such
adoptions are valid. In the circnmBtances we hold that,
notwithstanding the general role for the Provinoe as a whole,
the harden of proof that this adoption is inyab'd lies on
the plaintifb ; and, as no instances are forthcoming one way
or the other, the inevitable conclasion is that plaintiffs
have failed to discharge the onus thas laid apon them.
For these reasons we dismiss the appeal with costs.
Appeal dismisied.
No. 82.
Befi/re Mr. Justice Chatterji^ CJ.E.f and
Mr. Justice Johnstone.
GUB BAKHSe,— PLAINTIFF,
Versus
KHAIRATI— DEFENDANT.
Civil Reference No. 52 of 1906.
Attaehment — Fodder, liability of, to attachment in eaeeution of decns^
CivU Procedure Code, 1882, Section 266 (n)''Punjah Land Revenue Act^ 1867,
Bectum 70.
EM^ thafc fodder required for the owner^e cattle ii exempt oDder clanse
(«) of SectloD 266 of the Civil Procedure Gode, read with Section 70 of the
Punjab Land Bayenne Act, 1887, from attachment in execation of a
decree against an agricnItnriBt.
A Oivil Conrt can only attach bo much aa will leaye in the opinion of
the Collector of the District a saffioienoy for the owner's cattle.
Waeil ▼• Muhammad Din (<) aaperseded.
Case referred by Munshi Barkat Alt Khan^ Munsif^ Isi Olastf
DasuyOf District Hoshiarpur, on 4ith June 1906.
The opinion of the Conrt was delivered by
IBih March 1907. Johkstohb, J.— This is a civil reference hy the Small Canse
Oonrt of Dasnya, District Hoshiarpnr. In an execution
proceeding the decree-holder got hhusa belonging to the judg-
ment-debtor attached, and the question for decision was whether,
and by what procedure, it is attachable. In Wastl ▼. Mukavi-
mad Din (^)a Division Bench of this Court held ihB,t under
Section 266 (6), Oivil Procedure Oode^ there is no prohibition
whatever against the attadiment of all or any of the bkusa
(0 98 P. A, 1904.
AwoDdr 1907. J
CIVIL JUDGMKNTS-No. 88.
407
bdoDging to an agrioultarist. This is no doubt a correct in-
terpretation of that daase, but the Judge, Small Cause Court,
properly points out that Section 266 (n) tells a different tale.
Under it we have to look at Section 70, Land Reventie Act, 1887,
and Volume I, Chief Court Rules and Orders, Part C, Rule
5, Note (4) ; and it becomes clear that, as regards fodder
for cattle belonging to an agricultarist judgment-debtor,
the Civil Court can attach only so much as will leave, in the
opinion of the Collector of the District, a sufficiency for the
owner's cattle. It seems to us that the procedure indicated
here is cumbrous and unsatisfactory, but we cannot help that.
We rule, then, that in such cases the Civil Courts must
only attach so much as the Collector, to whom a reference must
be made, may judge to be right according to the rules of his
department.
By this ruling we supersede the Division Bench ruling
quoted above ; but it is so clear that the Judges who sat on that
Bench overlooked clause (n) of Section 266 of the Civil Prooe-
dure Code, that we do not think a reference to a Full Bench is
called for.
No. 83.
Bofore Mr. Justice Ohatterji, G.LE , and Mr. Justice
Johnstone.
KHAN ZAMAN,-<Dkfbndant),— APPELLANT,
Versus
FATTBH SHBR,— (PLAnmfp),-RESPONDENT.
Civil Appeal No. 1263 of 1906.
PrC'^mption—BaU of share of joint agricultural land to a co-sharer — Suit hy
another co-sharer of the Khata— Pun; ab Pre-empHon Act, 1905, Section 14.
Held, that ander the provisions of the Panjab Pre-emption Act, 1905, a
oo-aharer in joint ondiyided agrioultoral land has no right of pre-emption in
respect to a sale of a share of saoh land made to any of the several
oo-sharers in the estate.
Section 14 deals with several pre-emptor4 claiming in respeot of the
same property bat does not provide for the case of a pre-emptor claiming
against a vendee who has equal rights with him .
Further appeal from the decree of Misr Jawala Bahai^ District
Judge, MiamoaU, dated 22nd March 1906.
Ookal Ohand, for appellant.
Beni Parshad, for respondent
, Appillatb 8idi.
45s CtVlL JUDGMBNTS-No. 83. [ BicottD
The order of reference was as follows :—
17th Jan. 1907. Rattigan, J.— The que^tioD involved in this case is of import-
ance and should be decided by a Division Bench. It relates to
the proper construction of Section 14 of the Punjab Pre-
emption Act, 1906, but here there are not two rival pre-emptors
with equal rights. The dispute is between Skpre-emptor and a
vendee, both of whom are oo-sharers in the hhatd.
The judgment of the Division Bench was delivered by
2&nd March 1907. Chattbbjt, J.— The material faots of this case are that
a joint khata of 27 kanals 12 marl as of land at Shabbaz
Khel was held by four brothers, Fatteh Khan, plaintiff,
Nor Khan, defendant 2, vendor. Khan Zaman, defendant
1, vendee, and Jahan Khan, who is no party to the proceeding.
Some five years before suib Nur Khan transferred his one-fourth
share to Khan Zaman and this suit was filed by the
plaintiff for pre-emption of half the land.
Various pleas were raised by the vendee which need not
all be noticed here. The only important ones are that the
suit cannot be brought for pie-empticn of half the property
sold, that partition had taken place and that the claim was
barred by time.
The first Court decided all the issues in plaintiff's favour
and gave him a decree for one-third of the property sold. On
appeal the District Judge, who had the powers of a Divisional
Judge, enhanced the decree to a half share.
Id the District Judge's Gourt it was objected by defendant
vendee that plaintiff had no prior claim to pre-emption.
The same ground is again raised in Revision under Section 70
(1) (6) which being a novel one, under the new Pre-emption Act,
has been referred to a Division Bench by the learned Judge by
whom the application was first heard. This is the sole
point argued before us and requiring decision.
Although the sale took place long before the passing of
the Pre-emption Act, the suit was filed after it came into force.
Under clause (3) of Section 2 of the Act therefore the claim
must be decided in accordance with the provisiona of the Act
and not otherwise. The suit has been filed within one year
of the date of commencement of the Act and is therefore withio
time nnder'^eotion 28 of the Act, the limitation being that
provided in Article 120 of the Indian Limitation Act and the sale
AoousT 1907. i OlVlti JlJUGMBIlTS— No. 83. 4()9
being an oral one of a share in joint property. In fact the
question of limitation is not before as.
The first Court gave a decree for one-third of the land on
the gi*oaod that the three brothers other than the seller are
entitled to proportionate shares. The District Jndge enhanced
the decree to a half share '* according to general principles of
c-qnitj, " as the " first of the 4 brothers* forbearance should be
equally divided between the vendee and the pre-emptor. The
tirst Court's decree was obviously based on Section 14 of the
Pre-emption Act.
Section J 4, however, deals with several preemptors claiming
in respect of the same property and does not provide for the
case of a pre-emptor, claiming against a vendee who has equal
rights with him. Nor can a principle which would be of
use in deciding the present case be deduced from it. Clause
(a) is the only clause which deals with claims by co-
sharers and provides for their dividing the property
pre-empted in proportion to the shares they already hold
in the property. The Courts below have evidently decided
the claim under this clause. But the language of this clause
is clearly inapplicable to a case in which the dispute is
between two persons who would have been equally entitled had
they both claimed pre-emption, and would have come under
clause (o), but one of whom happens to be the vendee and is
sued by the other. No rule for deciding iuoh a claim is
provided by this or any other clause of Section 14 or is
deducible trom them. There is no other section to which resort
can be bad for the solution of the question. Clause (e) does not
in terms apply, as this is not a claim by several pre-emptors
but only by one. Section 12 of the Act, which defines the rights
of the different grades of claimants for pre-emption of village
property, declares that in the case of sale of a share in joint land
the right belongs to co-sharers jointly in the first instance and
then to them severally. This means we think that unless a joint
claim is made each co-sharer is entitled to claim pre-emption for
himself. If the purchaser is a strAuger, such a oo-sharer in the
absence of a claim by all the co-sharers jointly, can claim and
acquire the whole property by pre-emption. There is no
provision from which it oau be inferred that where the claimant
has been able to make a several claim, the acquisition would be
for the benefit of other co-sharers.
Is there a difEerent rule if the purchaser happens to be one
of the co-sharers P Clearly he does not stand in a different
410 ClI^l' JUD6MBNT8-K0. 88. C ftcootLD
poflitioD to that he woald hold if he claimed pre-emption singly.
All the co-sharers being on an eqnal footing, on what ground
can pre-emption be claimed by one co-sharer against another,
when that other aoqaires a share of the joint property by
private purchase ? Under the provisions of Section 12 his right
to bay may be postponed to the right of joint purchase by all
the co-sharers, but when such a right is not put forward, there
is no reason why he should surrender tne whole or any portion
of his purchase to another oo-sharer, who has exactly the same
rights as himself.
Thd present is not a claim by the co-sbarers of the khcUa
jointly. Whether excluding the seller and the purchaser, the
other two brothers, viz.^ plaintiff aod Jahan Khan, might have
sued for pre-emption for the benefit of themselves, reserving
a third share for the defendant parohaser is a question we need
not decide. This possibly is the only way a joiot claim by them
which would have been superior to that of the purchaser's zight
could have been brought, though we do not commit ourselves to
this view. But the present claim is merely a claim for pre-
emption of half a share iu the property sold. Such a claim is
not contemplated or provided for in the Act. The right of
pre-emption attaches to the entiro bargain to which the right
applies, and n) change h is been made in this respect by the
Punjab Pre-emption Act. The claim, whether joint or several,
must be for the entire property to which the right attaches.
The right of pre-emption is the right to acquire property
in preference to other persons, see Section 4 of the Act. The
plauitiff singly has no saperior right to that of the defendant
vendee, and the decree giving plaintiff a half share in the
purchase is open to the same objection that the decree given in
Ahmad Din y. Mussammat Hasso {^) w9l8. It gives plaintiff a
right to share in the benefits of tlie purchase made by the
plaintiff and not to be substituted for him in the parohase as
all pre-emption must mean, or, in other words, it is a decree for
oo-emption, not pre-emption. The reasoning of the Full Bench
judgment in Ahmad v. Ohulam Muhannmad ('), therefore fully
applies to it. It is not necessary to report that reasoning here.
The present Act has made no provision for coemption.
It is clear then that the Punjab Pre-emption Act contains
no provision for the decision of a claim of the present nature.
It must therefore be decided on general principles.
(*) 64 P. a, 1882. (•) 94 P. B., 1904, P. B.
Aufluw 1907. 3 CITIL JUDG»Mrr8-No. 84. 4lJ
We hold that plaintiff had do priority oyer the defen-
dant vendee, and that he is not entitled to claim pre-emption
by himself against the vendee of the whole or any parfc of the
property sold. His claim mnst therefore fail.
We accept the appeal and dismiss the plaintiff's claim with
costs in all the Coorts.
Appeal dUowed.
No. 84.
Before Mr. Justice Robertson and Mr. Justice Shah Din.
BHAGAT RAM AND ANOTHER,— (Plaintiffs),—
APPETiLANTS,
Versus } AmLun Bam.
PARAS RAM AND OTHERS,— (Difekdahts),—
RESPONDENTS.
Civil Appeal No. 1298 of 1906.
Arhitration — Appiication to file a private award — Award efieeting portion
of immovable property — Registration Act, 1877, Section 17, clauses {h) (f)—
Court not competent to remit private award when defective and indefinite— Civil
Procedure Oode^ 1882, Sections 520, 525, 526— CoMr*-/ee- Court-fee on nppeal
from an order rejecting an application to file an award in Court- Court
Fees Act^ 1870, Schedule /, Articles 1, 17.
Reldy that the Coort-fee pfiyable upon the memorandam of appeal
agaiDBt an order rejectiDg an application nnder Section 525 to iile an
award is Bs. 10 under the sixth clause of Article 17 and not
an ad valorem fee in accordance with Article 1 of the Coart-fees
Act, 1870.
Hari Mohan Singh v. Kali Prosad Chaliha (^), Dharm Das y, Ajudia
Pershad (*), diatingnished.
Firdaus Khan v. Dare Khan (*) dissented from«
Lurhhur Chaube v. Ram Bhajan Chaube (*) followed
Eeldf also, that when an award made withoat the intervention of the
Court is on the face of it defective, determines matters not i^eferred to
arbitration, and is bo indefinite as to be incapable of execntion the
Conrt has no power nnder Sections 625 and 526 to amend it or to
remit it for reconsideration bnt mnst refuse to file and enforce it,
Mustafa Khan v. Phulja Bibi (") and Miran Bahhsh v, Rahim Bahhsh (•)
referred to.
Semble : for the purposes of Seetion 525 of the Ck>de of Oivil Pro-
cedure an award of arbitrators privately appointed by the parties even
if it effects partition of joint immovable property of over Rs. 100 in
value and is signed by the paitiea to signify their acceptance of the
aame does not rrquiie registration and can be filed and made a rule
of Court.
(1)/. L.B.,m///Calc., 11. (*) All. W. N. (1903), 214.
(•) 70 P. R, 1881. (•) I. L. R, IXVII All, 526.
(•) 100 P. L. B., 1902. (•) 18 P. B., 1892.
418 CIVIL JUDOHBNTB-No. 84. C Smok»
MuceUaneous first appeal from the decree of Pandit Joti Farshad^
District Judge, Jhang^ dated SOth August 1906.
Nanak Chand and Sakh Dial, for appellants.
Harikisben Singh and Babadnr Chand, for regpondents.
The jndgment of the Court was delivered by
19*4 March 1907. Shih Din, J.— This is an appeal from an order rejecting
an application under Section 525, Civil Procedure Code, to
file an award of arbitrators privately appointed by the
parties. The memorandnm of appeal bears a Coort-fee stamp
of Rr. 10. The pleader for Paras Bam, respondent, urged
as a preliminary objection to the hearing of the appeal that
the order appealed against being a decree, the memorandnm of
appeal must beai' an ad valorem stamp under Article 1 of
Schedule I of tlie Court-fees Act, calculate*! on Rs. 20,000,
which is stated to be the amount or valuo of the subject
matter in dispute. The authorities which were relied upon
in sopport of tlis objection are Hari Mohan Singh v. Kali
Prosad Ohaliha C) and an unpublished decision of this
Court, Firdaus Khan v. Dare Khan (•) ((Hvil Appeal No.
990 of 1897, decided on 26tb November 1901 by Anderson
and Harris, JJ.)- The appellants' pleader, on the other
hand, cited the following decisions in support of his poeitioti.
Lurhhur Chnuhe v. Bam Bhajan Ohaube (*) and Nand
Lai. V. A. Atkinson (Civil Appeal No. 989 of 1903, decided
on 8th April 1905 by Chatterji and Kensington, JJ.).
Now the decision in Ha/ri Mohan Singh v. Kali Prosad
Ohaliha (^), does not appear to us to be applicable to a case
like the present. There the appeal was not from an order
rejecting an application under Section 525, Civil Procedure
Code, as in this case, but from an order passed under Section
526 directing the award to be filed in Court, and the decree
passed in accordance with the award was ** in terms to
the effect that the plaintiff is to recover the sum of Rs. 3,248
and odd as awarded by the arbitrators." In that case, there-
fore, the amount or value of the subject matter in dispute
in appeal was the sum of Rs. 3,248 and the memorandum of
appeal was held to be governed by Article I of Schedule
/M I L B..JJXZII Cole. 11. (*)
(*) 1C9 P. L. R, 1902.
ArertT isCT. ] CIVIL JITDGMBNTS-No. 84. 4j^g
I of the Court-fees Act. The ruling of this Court in Firdaus
Khan y. Dare Khan uo doubt supports the respondents* conten-
tion, but it will be observed that the learned Judges who decided
that case followed Bharm Das v. Ajudhia Perhsad (*),
which is analogous to the Calcutta case cited
above, and is not, therefore, directly in point. The following
passage in the judgment in D^arm Do* v. Ajudhia Fershad {})
embodies the ratio decidendi :— ^
•' We find that the award of the arbitrators filed by the
order of the first Court, and in terms of which that Court
passed judgment and decree has awarded to the plaintiffs-
respondents, the applicants in the first Court, property shown
in the decree to be of the value of Rs. 1,45,200, and the
object of the appeals preferred by the appellant is to have
this decree set aside. This much property then at least was
in dispute on the appeal to the Commissioner and in dispute
in this Court, even if it cannot be said that the whole
property which forms the subject matter of the award is
in dispute, a poiat which we do not decide. * * * * Xq
the Commissioner's Court and in this Court Bs. 1,665 should
have been paid in addition to Bs. 10 and under iSection 12,
clause 2 of the Court-fees Act, that amount must now be
required from the appellant in that Court and the same sum
in this Court * * * * before the appeal can proceed."
It will thus be perceived that the ground upon which this
Court in the last cited case held that Article I of Schedule
I of tiie Court-fees Act governed the memorandum of appeal
before it and that it was chargeable with an ad valorem
Court-fee, was that the amount or value of the subject
matter in dispute in appeal was the value of the property,
vix^f Bs. 1|45,200 whicli the decree of the first Court passed
in terms of the award of the arbitrators had awarded to
the plainiiffs-respondentSi and that the relief sooghtin the
appeal was to have that decree reversed. That decision,
therefore, like the Calcutta decision above referred to, does
not seem to be applicable to a case like the present, in
which the application to file the award under Section 525,
Civil Procedure Code, has been rejected, and consequently
no decree has been passed in terms of the award at all.
The relief sought in the appeal before us is not the reversal
of a decree awarding specific property of a definite money
value to tibe respondents, but simply an adjudication upon
^ (») 70 P. H., 1881,
4l4 ^^L JUDOkJBNTB-No. ^4 (fewottD
the appellanta' right to have the award of arbitrators filed
in Court under the provisions of Chapter XXXVII of the
Code of Civil Procedure. The subject matter in dispute in
this appeal, therefore, is one which it is impossible to estimate
at a money value, and hence clause VI of Artile 17 of the
second schedule to the Conrt-feee Act woald seem to apply to
this memorandum of appeal.
Another consideration which, in oar opinion, very mooh
weighs against the contention of the pleader for the respondent
is this: Suppose this appeal is dismisbtd and the application
under Section 525, Civil Procedure Code, to file the award
stands rejected, it would be open to the present appellants
to bring a regular suit to enforce the award. The plaint
in such a suit, if one were brought, would bear an ad valorem
stamp, and the appeal arising out of that suit would have
to be similarly stamped. If this be so, oan it be reason-
ably contended that it was within the contemplation of the
legislature that an appeal from an oider rejecting an applica-
tion under Section 525, Civil Procedure Code, which was
clearly intended to provide a simple, cheap, and expeditions
process for making a private award, a rule of Court, should
be treated, in regard to the question of the Court-fee leviable
thereon, on precisely the same footing as an appeal arising
out of a regular suit brought under the ordinary provisions
of the law to enforce such an awaraP Accotding to this
contention the party who seeks to enforce an award made
out of Court in the first instance by availing himself of the
summary remedy pi ovided in Chapter XXXVil of the Civil
Procedure Code, and failing therein, by a regular suit^ will
have to pay on his memorandum of appeal an ad valorem
Court-fee twice over. This, surely, could not Lave been intended
by the l^islaturci especially when we find that an apphca-
tion under Section 525, Civil Pioceduxe Code, though it
must be numbered and registered as a suit and is for all
practical purposes tieated as a plaint, is only liable to a
Court-fee stsnip of fis. 8 as an application and not to an
ad valor$m stamp as a plaint in a regular suit.
In Nand Lai v. Atkimcn (C. A. ho. 98^ of 1903)^
this Court has decided that an appeal from an order refusing
to file an agreement to itfer to arbitiation upon an application
madeundtr Section 523, Civil Procedure Code, is suiboientiy
stamped, if it beats a Court-fee of Ks. 10. This decision,
though not directly applicable to the {present ca^ is m
Avntff 1907. ] CIVIL JtrDGHlNTS-^Na 84. 4I5
point, in 80 far as it layft down that the order appealed
from 18 a *' decree," bat that the appeal is not liable to
an ad valorem Ck>nrt-fee, simply beoanse it is an appeal from
a decree and not from an order. The raling of the Allaha«
bad High Oonrt in Lurkhur OTiaube v. Bam Bhajan
Ohaube is a direct anthoritj in support of the appellants*
position.
Upon a carefal consideration of the authorities, then,
we hold that the appellants' memorandum of appeal, which
bears a Court-fee of Bs. 10 is sufficiently stamped, and
we overrule the respondents' preliminary objection accord*
ingly.
On the merits of the appeal the questious fordetermin- ^
ation : are (1) whether the award of arbitrators, dated the
)5th of November 1905, requires registratiou, and not being
registered is inadmissible under Section 4d of the Registration
Act; and (2) whether the award in question is open to
objection on any of the grounds mentioned or referred to in
Section 520 or Section 521, Oivil Procedure Code, and cannot
therefore be ordered to be filed P As regards the first ques-
tion, the contention for the respondent was that the award
which has eSected a division of joint family property, having
been signed by the parties to signify their acceptance of the
award, must be treated as an instrument of partition, and its
registration was compulsory under Section 17, Indian Begistra
tion Act. In the view which we take of the merits of this
case, it is unnecessary to discuss and decide the point of
law thus raised, though we may note that the present in-
clination of our opinion is that the award in question was
not compulsorily registrable under Section 17, nor was it
in<idmi8sible under Section 49 of the Act, both because
awards of all descriptions are exempted from registration
under clause (2) of Section 17, and because in making an
application under Section 525, Oivil Procedure Oode, the
present appellants did not seek to enforce their title to
immoveable property and tender the awai*d an' evidence of
that title (as might be the case if a regular sait were broagbt
to enforce an award), but merely asked the Court to file
the award, which was at the time in possession of the arbitrators,
and to make it a rule of Court.
As regards the second question, we are of opinion, after
hearing arguments on both siden and referring to the record,
(hat the award is.defeciive and unenloroeablei and should not
416 oxviL JUDGicBirrs-vo. 84. r
be ordered to be filed. The groands nrged in sspporfc of
tbe coDclasion oome to by the Goart below and which
have, we consider, been made ont npon maiemals before
U8, are —
(a) that the arbitratorR did not effect a complete partition
of the joint family property held by the foar brothers
who are parties to this appeal ;
- (6) that the arbitrators exceeded their powers in deoidiog
matters not referred to them; and
(c) that the award is so indefinite as to be incapable of
execation.
As regards (a), the agreement, dated 15th November 1905,
recites that there is a dispute among the brothers, parties
to the. agreement, in regard to the partition of th«* property,
moveable and immoveable, which their father, Ohaitdhri Jagta
Bam, has made over to them and which ^hey hold jointly ;
that Jagta Bam has set apart a portion of his estate for
his own nse and enjoyment ; and that they refer the matter
of the partition of the joint property with the reception of
the property left in the hands of Jagta Bam (which is set
ont iu detail in the apfreement) to two arbitrators Who are named
in the agreement. Provision is also made for reference to an
umpire (Lala Sobha Bam) in case of a disagreement betwen the
arbitrators. The whole joint property in possession of the
brothers was to be divided into fonr equal shares by lots.
The arbitrators made the award on the same day on which
the agreement was executed, and it appears from the evidence of
the arbitrators and the statements of the brothers npon the
record that the arbitrators did not ti^e the troable to ascertain
the details of the property, moveable and immoveable, in the
po<«8es8ion of each brother, but contented themselves with taking
from the parties four incomplete lists of the joint property
which they had prepared beforehand and casting lots on the
basis of these lists without equalizing the parties* respective
shares in accordance with a do6nite principle of valuation.
Admittedly all cash and jewellery in possession of the
parties were excluded from the award, and no attempt
at all was made to find out their amount or value by sending
for aod examining the parties ' books, which the arbitrators
state the parlies declined to produce. A comparison of the
three lists on the record with the details of the property as given
in the award alao discloses discrepancies which, though not
very miteriali at loitst show tuat the awftrd was not ihe
1907. ] QiTiL nriMMnm^Hd u. 4|7
veenli of matare deliberatioii and a foil enquiry as to tbe
deiafls and amount of the properiy which the arbitrators
were asked to divide. We are therefore, oonetrained to hold
that the award was defeotive on the ground that it failed to
make a complete partition of the joint property which the ^rbitrat*
ors were appointed to divide.
As regards (6) a reference to the award shows that
the arbitrators exceeded their powers in giving a deekion
in respect of at least two matters which were not referred
to them by the agreement. In the first place, the
award, after referring in detail to the property which
under the agreement was left in the hands of the father,
and which was expressly excluded from tbe cognivance
of the arbitrators (who were appointed only to partition
joint property held by the brothers) decides that the father
''shall have free power of dieposition with regard to this
property uncontrolled by the sons, no matter whether the
transfer be made to one of the sons in consideration of
services rendered by him or to a stranger." In the second
place, the award declares that certain residential houses in pos-
session of the brothers separately ehall remain the joint
property of the parties for the present, that
they shall be divided among them within six mosths, but
that if not so divided within, the said period
each brother shall be entitled to recover from such of the
others as may be liable, the valae of the improvements, if
any, which he may be found to have effected in respect of
the house or houses in his possession. We are clearly of
opinion that in deciding these two matters in the way they
did, the arbitrators exceeded their powers, which were expressly
limited by the agreement under which they had been appointed
to the partition of the joint estate of the parties, and that
this being so, the award in question must be held to be one
which is incapable c| being filed. For it is not seriously
denied that in these proceedings, which have beeu initiated
by an application under Section 525, Civil Prooedure Qode,
to file an award, the Court has no power to amend the
award or to remit it for reconsideration, but most either
Hffirni it in its entirety or whollj reject it. (See Muttafa
Khan v. Phuija Bibi (0 ^^d Miran Bohhih v. Eojiim
BakhA (')).
(*) i. L. IS i7 ill, 5I«. (*) 1« P. A, liM.
416 OIVIL JITDOMSNTS-Ka 85. [ 1mm
With regard to the last point (e), it needs only to read
the award to see that the partition of the joint property of
the parties has been effected therein in snch an ill-defined manner
that if the award were ordered to be filed and a decree passed ia
terms of the award, the identification of the property, which
has been allotted to each brother as his share, wonld be
attended with manifold diffioalties , and we are, therefore^
constrained to hold that the award is so indefinite as to be
incapable of execution.
For the foregoing reasons we maintain the decree of
the lower Oonrt and dismiss this appeal with costs.
Appeal ditmiaed.
nTss.
Before Mr* Justice Etobertsan ani Mr. Justice Shah Din-
SOHNA,—(DiiENDAOT),— APPELLANT ,
ArnuATi SiDV, < Versus.
SDNDAB SINGH AND OTHERS,-^(PLAaTiws),—
RESPONDENTS-
Oivil Appeal No. 645 of 1904.
Ouitom^Adoption—Adoption of daughter^i Bon—Dhtllon Jai$ oj Mama
Sawinda Khurd^ Tah&il Tarn faran, Amritsar DkirieU
Fownd, in a roit the parties to which were BhiUon Jats of Maaia
Jawioda Khnrd in the Tarn Toran Tahail of the Amritiar Biatrict that the
yaUdity of the adoption of a danghter'g ion had been ettablished by the
party settiDg np the adoption.
Ralla ▼. Budha C»), Jiwan ▼. ffakam Khan (J), Watawa ain§hi.
Arur Singh (*), and Buta Singh ▼. Ram Singh (*) refened to.
Further appeal from the decree of A. E. Hurry, Esquire,
Divisional Judge, Amritsar Division, dated 2Qth May 1904.
Harris, for appellants.
Sheo Narain, for respondents.
The judgment of the Oonrt was delivered by-*
8ik Feb. 1907. ^^^^ ^^* J.— The facts of this case are as follows : One
Jiwan Singh, a sonless Dhillon Jat of Manza Jawinda Khnrd,
Tahsil Tarn Taran, in the Amritsar District, adopted his
daughter's sod, defendant in this case, and executed a deed
of adoption in his favour on the 14th January 1901. The
plaintiffs who are collaterals of Jiwan Singh in the fourth
degree, brougbl the present suit for a declaration that the
(>) 50 P. B.. 1898, P. B. (•) 88 P. B., 1900.
(•) 140 P. B., 1894, CiWP.flal^Or,
ivmm im. ) CIVIL jiTDGMBNTfi-No. 85. ^j^
alleged adopiioi: of the defendant did not in fact take
place and that if it did take place it was invalid by cnstoro.
The defendant pleaded that he had been adopted by
Jiwan Singh "with the observance of the requisite c^remoniee
aooompanied by the ezecntioii and regibtration of a deed of
adoption, and that nrder the cnstcm applicable to the
parties bis adoption was peifectly valid. The iiret Conrt
framed two issnes on these pleadings, one relating to the
factum of the adoption aiid the other to its yaliditj, and
having found in favonr of the defendant on both the issues,
it dismissed the plaintiff's sait. On appeal the learned
Divisional Judge concurred with the first Court's finding as
regards the factum of adoption, bat differed irom it as to
the validity of it, holding, after a discussion of the
Miwaj'i'am upon which the lirst Court had relied and a
few judicial decisions bearing upon the question, that among
Dhillon Jats of the Tarn Taran Tahsil a sonless proprietor
could not adopt a daughter's sod. The plaintiffs' suit was
accc»:dingly decreed.
The defendant appeals to this Court As both the
Courts have found that the adoption in dispute did as a
fact take place, ana the correouitss of this concurrent
finding is not challenged by the learned pleader for the
respondents, the sole question for decision in this appeal ia
whether the defendant upon whom, according to tne Full
Bench ruling of this Court in EaUa y.budha(^) the. onus
of proof lay, has established that his adoption is valid by custom.
After hearing arguuents and relerriug to the Eiwaj-i-am
and the judical precedents bearing on the point, we think
that the question must be answered in the affirmative.^
The clauses of the Miwaj'i'am of 1865 which are relevant
to the present enquiry are as follows :—
SectimhIVi
Power of A sonless Dhillon Jatto adopt and the rights
of the adopted son. Amiver to Q. 13 ( clause 1). In our
tribe the custom of adoption prevails. A woman cannot
adopt, but a male sonless pioprietcr can in his lifetime
aoopt a bey up to the age of 15. A wiitttn instrument
is essential to such adoption as well as the observance of
ceremonies such as are peiionjed at the biith of a sen.
The brotlierhood should also assemble. Amww io Q 14
{clauie 2). It will be competint to a aale bonkss proprietor
to adopt the feon of any ^tifeon in his own or Ecme other
420 ^^'I^ )UDGUSFT»-Ka. 85. [ BioMt
Tillage, from among all the OoU of the J<U tribe exoept the
Bal Ootf it beiDflr immaterial whether the adopted person
is the son of a eollateral near or remote, or of a daaghter,
or of a sister. The proprietors of Ajnala, Baya, and Amritsar
parganoB made an exception to this general rale and
stated that only near collaterals oonld he eligible for adoption
and not eyery member of the whole gaum, and that the
issue of a daughter or sister would not be so eligible.
The lower appellate Court remarks that *' the Eiwaf*i^ wi
** of the Amritsar District carries but little weight as an
*' expression of real custom " ; but we find that in
Jivan Y. Hakam Khan (^), the £iwaj-%»am of the Tarn
Taian Tahsil was held to be a reliable and correct record
of custom, and that in Wasatoa Singh v* Arur bingh \*)y (p. 120),
the Eiwaj'i'um of the Amritsar Tahsii was consiutaed vt
some value in regard to the question of the validity of
adoption of daughter's son among gil jats of that TahsiL
The answer to Q. XIV in the Knglish abstract of
customiftry law of Amritsar prepared in 1893, does not
afield us lii^ii gQiaiiUce here ; it simply notes that m
many castMi tiie auopuon of a uaughter's sou in the absence
ut nfcikr coilai(;raJa was stated to be customary.
Ill 6uppui't ot the Uiwaj'i-am ot 1&65, ttie lower appellate
(juiut notes two instances : (1) in village Iiopoke, whore
Jai jbingh aUupuxl his sistei'ti buii, und {}i) lu village Kliaia,
where Kiiaittk bingh adopted a fouiidling. But it does
not consider tneso lustanoes ot mucn value on tlie ground
that there is nothmg to show whether thei-e wire any
collaterals of the adoptive father or whether these adoptions
were disputed or acquiescca in. Besides the JUtoiij'i'am in
question, the defendant relied in the (Jouits below on two
judicial deci^ons m support of his case, viz,^ (1) a judgment
of Agha Kalb-Ahid Khan, dated 14th June 187^, and (2) a
judgment of Colonel KiddlOi dated 24th December lb85|
both of which decide that the adoption of a daughter's
feon amcng Dhillon Jats ot the Tarn Taran Tahsil is valid
by custom. These decisions the lower appellate Court has
lefused to follow mainly on the ground that in recent
years the Courts have set aside gifts made to daughters'
sons by Dhillon Jats of this Tahsil, The oases upon which
(») 140 p. B. 1894. (>) 88 P. B^ 190O.
W.
AooodT 1907. ] OI^IL ^aoa3lBS^t3-llo. sJ. 4^1
the bwer appellate Ooart relies in this cjnudotioQ are as
follows : —
(1). In Civil Appeal No. 169 of 1899 the Divisional
Judge of Amritsar held that among DhiUon Jats of Tarn
Taran Tahsil cnstom did not' empower a gift to a daughter's
son in presence of nephews.
(2). In Civil Appeal No. 968 of 1899 the Chief Court
held that no custom allowing a gift to a daughter's son
of a DhiUon Jat was estahlished.
(3). In Civil Appeal No. 193 of 1901, the Divisional
Judge of Amritsar held that a gift among Dhillon Jats
of Tarn Taran Tahsil to a daughter's son was invalid
when not assented to hy the hrotherhood.
(4). In Civil Appeal No. 53, decided on 28th January 1903,
the Sub-Judge of Amritsar held that a gift to a daughter's son
(among Dhillon Jats) was invalid as the collaterals had not
assented to it. ^
Now, it will be noticed, in the firat place,
that all these decisions related to gifts made to daughters'
sons and are not, therefore, applicable to the question of
adoption which is under consideration in this case. In the
second place, the provisions of the Biwaj'i'Wm as to the
power of gift are not in all particulars identical with those
rotating to the power of adoption as set out above, nor
can it be said, without examiuing the facts of each case,
how far its particular features as disclosed by, the material
upon the record contributed to the decision in that case of
the question of custom before the Court.
For the determination of the question that arises in
this appeal we have before us no less than three unpublished
decisions of this Court which are directly in point and in
two of which it has been definitely held that the adoption
by a sonless Dhillon Jat of the Tarn Taran Tahsil of a
daughter's son is valid by custom. In the first of these
decisions (Civil Appeal No. 960 of 1895, decided on 24th
December 1897) a Division Bench of this Court held, after
citing the Eiwaj-i-am of 1865 with approval, that amoug
Dhillon Jats of Tarn Taran Tahsil a sister's son oould
validly be adopted. If the adoption of a sister's son is valid
among these Jats, a fortiori that of a daughter's son
would be so, and it is noteworthy that the learned Judges
in the above case laid stress upon the plaintiff's own
admission, which was in accordance with the custom
«• prevalent among the tribes that " a sonless Dhillon Jat oould
4ljiQ CIVIL JI^OaitaKT8«lto. 86. r &BOORD
•* afdopt a daughter's son of 6 years of age in the presence of the
" brotherhood."
In the other two deoisions, t;»;s., Oiyil Bevision No. 2196 of
1904, decided by Mr. Jastice Harry, on 9tb Jnly 1906, and
Buta Singh v. Ram Singh (^), deeided by one of as (Mr. Jastice
Robertson) on 2l8t January 1907, it was held that by castom a
aonless Dhillon Jat of Tarn Taran Tahftil had power to adpot his
danghter*s son. We consider that these decisions conclude the
question before ns, and following these we bold that the castom of
adoption as embodied in the Rtwaj-i-am of 1865 prevails among
Dhillon Jats of Tahsil Tarn Taran and that the adoption of the
defendant in this ease is perfectly valid nnder the said castom.
The appeal is accordingly accepted and the plaintiff's suit is
dismissed with costs.
— — Appeal aUowed.
No. 86.
Before Mr. Justice Robertson,
BUTA SINGH AND AN0THBft,-(DBrBRDANT8),—
Appbllath 8idb \ APPELLANTS,
Versus
RAM SINGH AND OrHBR3,-^(PLAiNriFf8),--
RESPONDENTS.
Civil App3al No. 1028 of 1906.
Omtom-^Aioption of daajh'er's son ^Dhillon JaU of TaUU Tarn
Taran, Amritsar District.
Found, thai the ad iption of a dau^fhter'a son is valid by cufltom amoDir
Dhillon Jats of tho Tarn T»4faa Tahsil.
Ralla V. Badha (•) referred to.
Purfwr ypidl fromtk^ di^ne of W. A. Li Romj^iol, Esqitire,
BivUional Judge, Amritsar Division, daled ISth August 1906.
Gurcham Singh, for appellants,
Hukam Chand and Melu Ram, for respondents.
The judgment of the learned Jadge was as follows:—
21st Jan. 1907. . ^BBRrsoN, J.— In this caso the plaintiffs, who are collaterald
in about the 3rd degree from the adopter, sue to set aside the
adoption of one Cbeta bj Buta,— Ohefcu is the son of Buta's
dnughf^r. Buta is alive, and himself sets up the adoption. Of the
factum of the adoption there can therefore be no doubt, the only
question is as to its validity. Both Courts fiud that adoption
occurred in 1001 at any rate if not before.
The witnesses produced give several instances of such adop-
tions, and the entry in the RiwaJ-i-am of 1865 distinctly
(0 86 P.U., 1907! (•) 60F.ie.,le93.F.B^
Avaxjsft 1907. ] OITIL JUD^^MhUTS— Na ««.
anthorizes them. No instaiiBes are actually given in the
Biwaj-i-am bat itn value is iDcreaPcd by the fact that the
qnestion was clearly carefally conBidered and different
answers were given by different sections of the commnnity, and
this Btwaj't-atn has been foHowcd by tbiB Cctti in a case to be
noticed later. The answer to Qneption XIV in the BngHsh
abstract of Cnstcmary Law of Amritsar prepared ih 1893 does
not give ns mach assistance. It notes that in many oases tVo
adoption of daaghters' sons in the absence of near collaterals
was stated to be cnstcmary.
As to the statement of Bora in a ease in 1883 it is qnite
clear that he did not mean to say that no cnstom of adoption
existed, bnt merely that no cnstom as set up of adoption by a
widow exist-ed. Under no circnmstances wonld the statement
have amonnted to estoppel. Even if the first Conrt had not
incorrectly interpreted it, it would merely have amounted to an
admission. The first Court says further : ''It is admitted that
" prior to 1865 there was a cnstom regarding snch adoption. '
If this be so it is qnite clear that the burden of proof which
initially lay on the defendant to prove the validity of the
adoption (Ttalla v. Budha (^) ) was shifted to the plaintiff, npon
whom the burden of proving a change in the cnstom lay
heavily. The admission shows thst the Biwaj-t-am entry was
correct. There are at least three instances of the adoption of a
daughter's son given by the witnesses. But in addition to this
there are two clear decisions of this Court which appear to me to
conclnde the matter, one by a Division Bench and one by a
Single Bench, in respect of these very Dhillon Jats of Amritsar
District. In Eharak Singh v. Indar Singh, Civil Appeal No. 960
of 1895, it is clearly laid down by a Division Bench of this Court
that the adoption of a daughter's son was valid by cnstom.
The same view was tafcen by a Single Judge in Civil Revision
No. 2196 of 1904. Neither of tlieae two judgments was discuss-
ed by either of the lower Courts. The latter is a case of Dhillon
Jats of Tarn Taran Tahsil as is the case in No. 960 of 1895 also.
Under these circnmstances I am constrained to hold that
the adoption by Buta of Ohetn the son of his daughter was
valid, and in accordance with the custom of the Dhillon Jats.
The appeal is accordingly accepted and the suit dismissed with
costs throughout.
A^pj>edl aHofved,
( ») 60 P R., 1898, r. B^
4124 ^^^^^^ JUDOMENTS-No. 87. [ Riooiii
APPtcUn SiBi.
Ho. 87.
Before Mr. Justice Chatterji, C J. E., and
Mr. Justice Johnstone.
ATTAR SINGH AND OTHERS,— (Dependato),—
APPELLANTS,
Versus
SANT SINGH AND ANOTHER,- (Plaihtots),-
RESPONDENTS.
Civil Appeal No. 997 of 1906.
Custon^^Adoption^^ Adoption oj sister* s son^KalaU of Butarif tahsU
Found, tliafc among Kalals otherwise called Ablnwaliafl or Nebt of
Manza Bntari in the Ludbiana tabeil the adoption by a sonless proprietor of
a Blster^B son is valid by cnstom.
C. A„ :m of 1902, and Kirpi v. SoleJeh Singh {^\ distinguished.
Attar Singh v. Guran Ditfa (•), Khaian Singh v. Maddi (»), Uttam Singh
Y.Jhanda Singh (♦), Ralla v. Budha ("), Atar Singh v. Prem Singh (•),
referred to,
Fwrther appeal from the decree of 0. L. Dundas, Esquire, Divisional
Judge, AmhaXa Division, dated 30tt July 1906.
Mnhammad Shafi for Appellants.
Ishwar Daa and Gobind Das for Respondents.
The judgment of the Court was delivered by—
16<A ilpnl 1907. Johnotonb, J.—The parties to this case are Kalals (other-
wise called Ahluwalias or Nebs) oi Manssa Butari, Tabpil and
District Ludbiana. The question at issue is the validity of the
adoption by drfcnr^ant ], a Fonlpfp lundot^rer, of cVfprdart2,
his sister's son. Voluminous evidence was recorded by the first
Court, whose judjjrment is a careful and elaborate one. Tbe
finding was in favour of the adoption and the suit was dismissed
with costs.
The learned Divisional Jndpe, crrsidenng himself hound
to follow the view taken in Civil Appeal 371 of 1902 of this
Court, a case of the Ealah of Falalbatti in the Umball«
District, reversed the decision, fonnd tbe ai'rpfion invalid, and
gave plainHffs a decree, against which defendants now appelil.
Apart from the ruling quoted above, the Divisional Judge's
own ideas seem fo have been in favour of the defendants ; and
I think it will clear the ground if I record at once my opinion
(») 67 P. U., 1904. (*> 21 P. I?., 1896. ""
(•) 60 P. J?., 1S7P. (.) Cf P. J?., iffs, p. B.
(«) 122 P. B., 1598. (6) 12 P. B., 1906.
ivtfon WOT, 1 CIVIL JT7DGMBNT8— Na «7. 425
- — -^— ^ — - ' i ■ ■ 1. 1 » I It ,
that that niling is easily and perfectly distingnishable, and by
itself forms no sufficient gronnd for decreeing this claim. It
will appear at once, npon a pernsal of the following sentences,
how mistaken is the Diyiaional Jadge's remark that the circam-
stances of the Kalalhatti case and of the present case ^ are very
similar. " Pnt briefly, the ratio decidendi there was that Kalal-
hatti being a compnot village entirely founded and owned by
KaldU^ who settled there ma ny generations ago and live mainly
by agricnltnre, the probability is that the inhabitants, in conDec-
tion with the preservation intact of the aqnatic gronp and of the
original village community, have adopted the customs of the
ordinary Punjabi agriculturist; and that a different presumption
arises where Kaials or similar people settle in smnll numbers in
a Tillage mainly held by other tribes. In the pref^ent case these
KalcdSf 4 families in all, own only 3 ploughs of Innd out of 11^
in the " miscellaneous " Patti^ there being 6 other TatHs of Jnts^
they have not been in the village for more than some 4 genera-
tions; they do not themselveB cultivato, but nre moBtly in Govein-
ment service or in profcRSional ocnapations; they intermarry with
urban Blalalsy whose cnstoms aro admittedly (see plaintiffs' own
witnesses) different from those of the Jat8\ Kareufa is apparently
not allowed among them as it is amon^f JaU ; and it is contentled
with great force that, these thingft being so, the Kslalhatti raliog
far from being in favour of plaintiffs, is really against them. Th^se
statements of facts are clearly warranted by the record. Mr.
Muhammad Shafi for the defends nts urges that even among real
agricnlturists adoption of daughters' and sistera' sons shoold be
declared admissible as a matter of initial presumption, but here
we have against us the mh'ng Ealla v. Budha {}), which
has been generally followed these 14 years, though doubts may
have been suggested regarding it. I do not think the present
'Occasion opportune for the reopening of that question.
The initial presumption, then, in my opinion is as regards
these Kaials that they do not follow agricultural custom, and
for the reasons given in Civil Appeal 871 of 1902 aforesaid, I
hold also that they do not follow Hindu Law. I may note,
however, that the KalaU being not of the " twice bom " classes
of Hindus, even under Hindu Law there woo Id be no prohibition
against the adoption of a daughter's or sister's son. It remains
to see what is the custom which the evidence on the record
shews they actually do follow.
But first I would like to make a few remarks regarding the
meaning of the word '' agriculturist " and also to the status
(»)16o P. Bh was, F. B.
4g0 CIVIL JUDOMSNT8-*No. 87. L
Mid occoipationfl of KalaU as focmd in this Provinoe. The
lenrced Divisiora] Jndge Feems to me to oonfennd ownership of
land with agrioaltare as an oooopation. The distinction is a
very clear one, and was brought oat foroibly in Atar Singh ▼.
Pr«m Singh (^), in which case certain Khatris^ who had held
land for no less than 200 years, were taker as non-agrionltnristB
avdasa tiibe regarding whom no presumption arose that they
had adoptfd agricultural cnstom. It seems to me clear on the
facts given above tliat the KalaU of Bhntari are not agrionltarists
properly so called. Again the same idea as that which formed
the basis of my judgment in Civil Appeal 871 of 1902 comes
ont in the two Bedi cases, both of Hoshiarpnr District, KhoMou
Singh v. Maddi («), and Uttam Singh v. Jhtnda Singh (»).
In the former case it was found that the Bedis formed a compact
village living on agriculture, in the latter they were a small
section of a village community, mainly composed of other tribes.
In the latter Hindu Law was applied, in the former agricultural
custom.
These Kalcds came, or say they came from Ahlu, District
Lahore, and are to be found in many parts of the province* They
have taken to a variety of occupations, of which agrionltare is
probably not the most prominent. Their religious and social
status was low, but has improved somewhat in recent generations
partly from the circumstance that the Eapurthala family belongs
to the tribe. On the high authority of the census officers of 1881,
and 1891 (Messrs [bbetson and Maclagan) they should be class-
ed as a whole as " Miscellaneons artisans ", and so Mr.
Gordan Walker, Settlement Officer of Ludhiana in the eightiee,
also classes tin m, thrrgh he ihii kp pcihaps fcr that district they
might be called BgricultariBts. Notwithstanding petitions to
Qovernment the KalaU of Ludhiana have not been inoladed in
the list of agricultural tribes of the district for the purposes of
the Lard Alienation Act. In Kalalhatti, District Umballa, as
already noted, and in Ptitti Kalnlan, a compact village of KaUds
adjoining Umballa City, Mvs^ammat Kiijpi v. Solekh Singh (*),
ihiy hfiTC been declined to lave adopted rgiicullural custom ; but
equally in Jandiala, District Amritsar, the reverse has been found
to be iV.e rspr,— i4//flr Singh v. Ovran Ditia (•) — upon a oarefol
enquiry into actual practice.
Considering all this and also the chcumstance that, accord-
ing to the evidence, the KalaU of Butahri have rslatioDB rather
C) 12 P. B,. 1006. (») 21 P. R^ 1896.
{•) 122 P. B., 1898. (*) 67 P. R., 1904.
(•) 50 P. R., 1879.
Avoon 1907. ] OttlL 3TtDeMBNTB-No. 8^. 4l2^
with Amritsar aud Lahore than with Umballa, I am inolined. to
hold that the onus ia the present oaae, at this stage of the
disoassioQ is on plaintiff* Bnt, however this may be, I will
consider first the evidence prod need or relied npvu by
defendants.
Defendants have pnt in a list of adoptions in the tribe, some
HO in nnaiber, aiid this has been rxhanstively criticised by Lala
Ishwar Das. Divisional Jndge disonsses abont half in detail
and says the rest are vague, it wonid be tedions to go through
this list seriatum* I will content myself with noticing those
which seem to me to be nnmistakably in favour of defendants
and with making a few remarks about the others. No. 3 is no
doabt of the town of Khann», but the case was undoubtedly one
of aonination of an heir and the property was 800 biyhtu of land.
The heir selected was a daughter's son's son. Rao Singh of Elalal
Majra (No. 6) orally adopted Hira Singh, a daughter's son, and
there is a nephew of the adopter, an infiuential man who
beoame Lambardar vice Rao Singh ; Hira Singh keeping all
deceased's property. No. 16 is the case of one Ram Kishen
(M^ansif) of Alawalpnr, who adopted a daughter's son, his
property was in land and was of substantial value. Nos. 1, 2, 4,
10, 11, 12, 15, 17, 19, 22 are objected to by plaintiffs on the grounds
that the properties were small and tlie cases of towns. This is
to some extent true, it is also true that in some cases the
property was houses or shops. 1 think Mr. Shafi is right when
he protests against the discriminabiou adopted between town Kalah
ou the one hand aud rural KalaU not forming compact village
cjoimuuities on the other; aLo between house and landed
property. Adoption is the appointment of an heir to the whole
of the adopter's property. If the tribe anywhere recognises
adoption of daughters' sons or sisters' sons, the adopted one will
of course take everything on the adopter's death-^land,
houses and moveables. In No. 4 it is said that there were
no reversioners, but this is incorrect. I lay no stress on the
remaining instances, Nos. 5, 7, etc., as in some of them there
is some possible doubt as ,to whether they involve real adoptions
at all, aud in others special reasons exist why reversioner should
not have sued. I should also note that plaintiffs' own witnesses
have been forced to admit some 13 of defendants' instance.
Plaintiff's evidence to rebut all this is weak. His witnesses
are numerous, but their value may be ganged by the fact
that many of them roundly assert that adoption is not at aU
allowed among the tribe. Further, some of them first deoy the
troth of cartaiu of defendants' instances and then have to admit
4^8 OIVIL ;rnDGMBtiTB-Ko. 88. t BHOftD,
that the adopted ones are in possesBion and enjoyment of the
adopters' estates. They are able to cite not a single instanoe of
Ladhiana, Amritsar or Lahore in whioh the adoption of a
/ daughter's or sister's son has been set aside.
For all these reasons it seems to me abundantly olear that
the adoption in the present case is valid, and that the decree
of the Divisional Judge should be set aside and the suit dismissed
with costs.
Appeal dUowed,
Afpilultb Sidb.
No. 88.
Before Mr- Justice Robertson and Mr- Jtistice Shah D^l^
NIQAHIA AND ANOTHEE,— (Defendants),— APPELLANTS,
Versus
SANDAL KHAN AND OTHERS,-(Plaintiffs),—
RESPONDENTS.
Civil Appeal No. 409 of 1906.
Custom^ Alienation^Qift by sonlesa proprietor to daughter —BajpuU
of manza Kharal Kalan and Kharal Khurd in the Jullundur and Hoshiarpw
Districts,
Heldf that defendants on whom the onus lay had failed to establish
a castom by wihoh ammg Rajputs of Bhatti got of mauza Kharal Kalao
and Kharal Khurd io the Julluudur and Hoshiarpur Districts a sonless
proprietor vas competent to gift his ancestral estate to a daughter
in the presence of collaterals of the fifth and third degrees respectively .
Imam-ud'din v. Wazir Khan (»), Suchet Singh v. Banka {*), Sultan
Bikhsh ▼. Mussammat Mahian (*) Mu^isammat Lakhan v. Rahmat Khan^ (*',
Amir Khan V. Sirdira (*>, and Umar Khan v. Samand Khan («),
referred to.
Fwrther appeal from the decree of /. G. M. Bennie, Esquire,
Divisional Judge, Jullundur Division, dated ith April 1905.
Harris, for appellants.
Sheo Narain, for respondents.
The jadgmenfc of the Goart was delivered by
Shah Din, J.— In this appeal and in C. A. No. 1095 of
30th March IdOT.^^^^^ ,. r * • , ^ «>,
1906 the same question of castom is involved. They were there-
fore heard together and will be disposed of by one jadgment.
In this appeal the parties are Rajpats of Bhatti got of mausa
Kharal Kalan in the tahsil of Jnllundnr, while in the
(M 14 P. R.. 1890. (*) 101 p. B., 1895.
(•) 90 P. B., 1891. (•) 110 P. B., 1894.
(•) 46 P. B.. 1894. (6) 145 P. B., 1894.
AMOOT I90(r. ] CIVIL JUDaMBNT8-No. 88. 429
— ■■■■■ ■■ ■ ■■ - -^M^^^^^^i^^— ^— -^MM ^W— — —
oonneoted appeal (0. A. No. 1095), they are Rijpats of
mauza Kharal Khard in the taksil of Dasnya in the Hoshiar-
par Oistriob. Both the villages, Kharal C^acd and Kharal
Kalan, are inhabited by Raj pats, mostly of the samo got^ and it is
admitted that they are governed by the same rales of oastom.
In this appeal the dispute has arisen oat o! one Nig^hia
having made a gift of his anoestral laai in favour of his
daaghier, Massammat Jhaado, on 17th January 1904, the
validity of which gift is contested by Ni^ahia's collaterals
who meet him in the fifth degree from the common ancestor.
In the connected appeal the gift in diopute was made by
one Gulab Khan to his daughter, Mussammat Imam Bibii
and the plaintiffs who have sued to hare the alienation set aside
are GuUb Khan's collaterals in the third degree. The question
for decifiion, therefore, in both the appeals is whether among
Rajputs of Kharal Kalan and kharal Khurd in the JuUundar
and Hoshiarpur Districts, respectively, a sonless proprietor is
competent by custom to make a gift of anoestral land to
his daughter in the presence of collaterals of the fifth and third
degrees.
It is not diuputed that the initial burden of proof lies
upon the donees, the daughters, in both the cases, and we
have therefore to nee whether they have succeeded upon the
materials before us in discharging that onus. The Ooarts
below have found in each case that the onus has not been
discharged and have decreed the plaintiffs* claim.
The Biwaj^'ams of tahsil Jullundur and tahsil Dasuya
practically throw no light upon thq point under consideration,
and the Wajih-uUirz of either villaj<e is equally silent upon
it. The decision of the question of custom, therefore,
turns wholly upon the instances which have been adduced
by the parties and further sifted by the local commissioner
appointed during the trial of the suit out of which the
present appeil has arison, the oral evidence produced in
either case being admittedly of little value. The Court of
first instance has, in this case, examined in sufficient detail the
instances afore.^aid, and at the arguments before us have been
limited to a discussion of those instances, we have to see
how far they biir up jo thd question at issue between the
parties.
There are altogether seventeen instances, of which Nos. 1
to 8 relate to mama Kbaral Kalan (Nos. 1 to 4 being
deposel tj by wltuejsed eximinei in Giurt aul N'os. 5 to
430 CIVIL JUDOMBNTS-Na 88. [ aBJoio
8 balag broaghb to light at the local enqairy). Noa. 9 to 12
aad Nj. 17 relatj tj mxuza (Char^l Kburd, Nod. 13 to 15 relate
to Bostgo (which id iahabited maialy by Nara Bajpate) aod No.
16 relates to mauza Zahara.
The detail is as follows :—
(1). One Kesar gifted, on 9th Jane 1902, 46 kanaU 1
marla of land (oat of 62 kanals and 1 1^ marUis) to his danghter
without consent of collaterals. No snit has yet been bronghi
The alienation is very recent and no oondasion can be based
npon it.
(2). One Fatteh made a verbal gift of 4 JctnaU 1 marla
ont of 30 ghutnaos (aboat ^^th of the estate) to his danghter on
15tb April 1888, a son of the donor is alive. No snit bronght.
The gift was of a very small area and the son appears to bave
been a consenting party.
(3). Allah Ditta, son of Fatteb (in instance No. 2) gifted
on 9th November 1894 Jth share of 234 kanaU 10 tnarlas to his
sister. No snit bronght by collaterals.
(4). Tbis instance is not at all clear.
(5). One Toba made a verbal gift to his sister's sons of
abont ^^th of his estate on 15th June 1887 in presence of his son.
No snit bronght.
(6). One Qhansa died in 1868, leaving him snrviving
two brothers, Kada and Baja, and two daughtera
Mnssammats Chando and Bhari. The daughtera took
possession of Qhansa's estate with the consent of Kada. In 1875
the sons of Baja sued the daughters for possession of their nude's
land, with the result that after two remands for local enquiry the
Additional Commissioner of JollunJur held on 15th July 1876
that by onatom applicable to the parties' tribe the daughters
were excluded from iuberitance by the uephewa of the deceased
proprietor, and the suit of the latter was accordingly decreed.
In the course of the enqairy in that case, the plaintiffs seem to
have admitted that if their uncle Ghausa had gifted his land
to his daughters, they (the plaintiffs) would have had no claim
to it It is this admission of the plaintiffs as to the validity
of a gift to a danghter which is relied npon by the donee in this
case, but obviously a stray admission in sn old case which did
not touch the merits of the actual dispute between the parties
can baldly furnish a good basis for a claim as of right under
ciroumstancee attending the present alienation*
▲toubt 1907. ] OnriL JUiDCIlIBKTS— No. ft. 48]
(7). One Jiwan gifted bis land to his danghter, Mnssammat
Lado, before the present settlement with the consent of collaterals.
After the death of the dooee, the oollaterals succeeded. Not
applical)le.
(8). Gift to a sister (date unknown) of about ^V*^ o*
estate in presence of the donor's children. This instance is of
no valae.
(9). Before settlement one Gulab Khan made a gift of his
land to a daughter and a daughter's son, who had also been, it
appears, adopted by the donor. The cousins and cousin's sons of
Qulab Khau sued the donees to set aside the gift. The first
Court dismissed the suit and the appeal was dismissed by the
Additional Commissioner of Jullnndnr on 12th December 1883.
The onui was laid upon the plaintiffs to show that the gift was
invalid and the decision was based upon some instances (the
nature and cfrcumBtanccs of which were not set out in the
judgment, a copy of which is on the record) in which gifts
to daughters were said to have been maintained among Rajputs
of the- JuUundnr and Hoshiarpur Districts. It was also
found that the daughter's son had boon adopted by the donor.
(10). This instanee is the subject of dispute in 0. A. No.
1096 of 1906.
(11). This instance is said to relate to the succession of
two daughters to their father's lard, but no particulars are
given and it took| place before settlement The patwari
states that a suit was brought, but there is no copy of a decision
on the file.
(12). One Mandi willed away his property five or six months
before the present suit to his daughters. No further particulars.
(13). A gift to a daughter's son 30 years ago. A suit was
brought, which ended in a compromise, the donee getting only
}th of the land gifted.
(14). This was a gift of |rd of the donor's estate to a
aiflter^s son before the present settlement in the presence
of minor sons. Not of much value.
(15). A verbal gift made about a month before the
suit to a sister's son of about ^th of the donor's land in
.preeenoe of a minor son.
(16). This is a case of adoption and hence inapplioable
to this case. *
(17). A gift to a Bister's son was set apide on suit
brought by ooHaterals.
482 ^^^^ JUDGMSKTS— Na 88. f
A carefal analyBiB of the aboTe insianoee serves to
show —
(1) that iQ some instances the alienations were of too
recent a date to be of mnoh practical yalne as
instances of eastern as they may, and in all
probability will be questioned and became the
subject of judicial inyestigation ;
(2) that in others the amounts of the land alienated
were too small to arouse any effective opposition
on the part of collaterals ;
(3) that in others again the alienations were made
either with the consent of collaterals or in the
presence of minor heirs who could not object ;
(4) that in no single instance in which an alienatioa
was questioned in Court was there a thorough
enquiry into the power of a eonless proprietor among
the parties' tribe to make a gift to his daughters
upon lines approved by the recent decisions of this
Oourt.
It follows, therefore, that in our opinion the donee in
the present case, upon whom the onus lay, has faOed to
prove that in the presence of the plaintiffs, who are not
shown to be remote collaterals of the donor, the gift in
dispute is valid by oustpm«
Of the published decisions of this Court which haTS
been cited before us in argument none is directly iu point
We may, however, note that the following judgments quoted
by the learned pleader for the respondents appear to have
a bearing upon the question under consideration:
In Imam-iMltn v. WoMir JB^an (*), it was held that
among Muhammadan Bhatti Rajputs of the Ourdaspur Distrieti
a sonless proprietor was not competent by custom to sell
his ancestral land to his son-in-law with the OQUsent of
his collaterals, except for necessity.
In 8u6hei Singh v. Banka (*) it was held that there
was no custom among Hindu Bhatti Rajputs of the Dasnya
ialmlf Hoshiarpur District, permitting a propiietor to
bequeath ancestral property to near relations in the presenee
of other near relations The provisions of the Btufaj^-am
bearing upon the question of alienatioA are fully disousMd
in this decision.
(») U P. R, 1S«0. (t) 90 jp. &, 1891.
AuoVR 1907. ]
CIVIL jnDOMINT&-No. 89.
488
SuUan Bahhsh v. Mussammat Mdkia/n (^), and Uv'iBammat
Lahhan v. BahmcU Khan (*) relate to Ghorewala Etajpnta of
the Hoshiarpor and the Jnllundar Districts, respectiyely,
and lay down that a gift by a sonless proprietor to a
daughter is inTalid by cnstom in the presence of
collaterals. In the latter decision the collaterals were of tho
fifth degree.
Amir Khan v. Sardara (') is an important decision relating
to Nam Rajpats of the Hoshiarpnr District, in which a
large nnmber of authorities bearing npon the question of
custom applicable to Narus are discussed. The rule laid
down is that among Nam Rajputs a gift by a sonless
proprietor to a sister's son who is alno a collateral is
invalid in presence of other collaterals.
In Vmar Khan v. Samand Khan (♦) it was held that a
sonless proprietor among Nam Rajputs of [tho Jnllundur
District has not an unrestricted power of alienation of
ancestral property in presence of collaterals.
The weight of the aboye decisions, so far as they may
be said to be relevant to the present enquiry, is in favour
of the plaintiffs-respondents' position, and as the appellants'
counsel has been unable to cite to us a single ruling of
equal relevancy, we cnnnot but hold npon the materials
before us that the donee has failed to prove thai the gift
in dispute is valid by custom.
The appeal accordingly fails and is dismissed with
ooete.
Appeml dismssed.
No. sa
Before Mr. Justice Reid.
BEL^GAT RAM,— (Dbpbndint),— APPELLANT,
Ver8u$
^ GANDA SINGH,- (Plaihtjf?),— RESPONDENT.
Civil Appeal No. 772 of 1906.
Arhitrcitum^ Award" Delivery of, within the period allowed by the Court
— Cttni Procedure Code, 1882, 8ection$ 508, £21.
Seld, that an award made and signed within the period fixed by the
Court even when filed in Oourt after the expiry of that period is valid
^AnrnjjsM Bnm.
C) 46 P. B., 1894.
(•) 101 P.R^ 1«86.
•) 110 P. B., 1894.
C«)146P.&, 1894.
4ig4 OlflL JUDOBftflNTS-^Ko. ^. [ilooBD
wder ANsiiont 508 and 521 of the€od« of Civil Prooednre.
The expwBsion" delivery "in Section 506 mewiH " making " and not
•* filing in Court."
Umersey Premji v. Shamji Kanji (>)., iJrui.j7am Ohetii v. Jrwiacfcafam
Ohcttf (•), and 8ita Bam v. Bfcat«Mw Dm fiam (^) followed.
Cfcit^ar Mai v. flan ffawi (♦) and Raja Bar Narain Singh v, CfcandAnmi
Bfcofifwattt JTuar (•) distinguifllied. *
Further afpealfrom the decree of Captain A. A, Irvine^ Addiitonal
Divisional Judge, Amritsar Ltu'skn, datid ^th April WC6.
Roflhan Lai, for appellant.
At the first heariDg of this appeal the judgment of the Court
was delivered as follows by
2nd Jany. 1907. Eeid, J.— The qnestion for decision is whether an award
written and signed before the date fixed by the Conrt ander
Section 508 of the Code of Civil Procedure for delivery but not
filed in Court until after that date was " made within the
" penod allowed by the Court " within tlie meaning of Section
521 of the Code.,
The Lower Appelate Court has relied on Umersey Premji
V. Shamji Kanji (*) as authority for holding that the award was
made within time, but this ruling is opposed to the judgment in
Chuhar Mai v. Bari Bam (*), of which their Lordships of the
Piivy Council," entirely approved "in Baja Bar Narain Singh
V. Ohaudhrani Bhagwant Kuat (s).
The final judgment of the Court was delivered as follows by
2\gt May 1907. ^^^^^ J.— My order of the 2nd January 1907 will be read
with this.
The question raised has been considered by a Division Bench
of the Madras High Court in Arumugam Ghetti v. ArufMckalam
Ohetti ('), and by a Single Bench in Sita Bam v. Bhawani Din
Bam (^). In each case the ruling of their Lordships of the Privy
Council, previously cited, was considered. And in the Allahabad
ca9e a mass of authority was considered. In both cases it was
held that an award made within the period fixed, but not filed
in Court before the expiry of that period, was valid and in the
Madras cape it was specifically held that " delivery " in Section
508 of the Code of Civil Procrdure meant " making," and did
not mean *' filing in Court." It is true that in the Allahabad
case the awatd bad been made over to a peon of the Court within
(») /. L. R, Xnl Bom,, 119.. (») /. £. -B., 2JVI All,, 105.
(•) /. X. R, XXII Mad., 22. (*) I, L, J?.. YIU All,, 548.
(•) /. X. B., XIll, Ml., 800 f • 0.
Aoausr 1^37. ] OIVLL JCJDaitfiNTd-No, 90. 48^
the period fixed, the Ocmrt being dosed, bat Borkitt, J., who
decided the oaaa, held that this delivery to the peon would be a
safficient compliance with the order that the award shoald be
submitted, if there were any donbt in the matter.
flow far delivery to peon, after Court honrs, would
amount to filing in Court need not be deoided now.
Burkitt, J., stated that the gist of the cases cited
seemt d ta him to be that the date to be looked at m the dat^ on
which the arbitrators made* the aw^rd, and not the date on
which the award may have reached the Court. Tho point wafr
not dealt with in Ohuhar Mai and Baja Ear Narain SingVs
cases. I concur in this viow of the law, and in the fiading of the-
liower Appellate Court that the award was made within the
period fixed by the Court.
The appeal fails and is dismissed.
Appeal dismissed.
No. 90
Before Mr, Justice Battigan and Mr, Justice Lai Chand,
MUHAMMAD DIN.- {Plaintiff),— APPELLANT,
Versus
SHAH DIN AND ANOTHER, -(Dependants),—
RESPONDENTS.
Civil Appeal No. 298 of 1907.
Custom— Preemption ^Pre-ernption of existence of tight in respect to area
converted into huilding «»tefi— Killa Gw/ar 8*ng/v— Suimrba o/ Lohore— Puiy'ab
Laws Act, 1872, Sections 10, 11, 12.
A certain area of laod was originally comprised within the village of
Killa Go jar Bingb, a suburb of Lahore city, and hod been io years past
Agricultural land. For some time past, however, it had bean usod as a site
for building purposes and had been gradually absorped within the limits of
Ijabore city.^ ,
Beldy under these circumstanoes that the land must be regarded as^
land situate in a town and that there was therefore no presumption that the
ocistom of pre-emption existed in reapeot of a sale of such land.
timnd upoQ the evidQuoe that •the plaintiff had failed to prove that
tlie OQstom of pre-emption existed in respect of a sale of such land.
Kishan Dial y. Ali BaJchsh i^\ and Karam Ilahi v. Bahna Mai (*)
cnted^
JPurther appeal from the decree of Captain A. A. Irvine, Additional
Divisional Judge, Lahore Division, dated 8th November 1906.
Orej and Moti Lai, for appellant.
Shadi Lai, for respondents.
i») 87 P. «., 1880. (»> 21 f. B., 1900.
Afpbllatb Sidb.
J
4A^ CIVIL JltDaBf ANTS— No. 90. , [ iboosi
The jodgment of the Oonrt was delivered by
17tt May 1907. Rattigan, J. -The facts are aaffioieatly clear from the
jadgmeats of the Ooarts below. Plaiat.ifE is saing to pre-empt
certain land which is stated to be sitaate withia the limits o!
what is kaowQ as the Ooal Mandi of KtUa Gajar Siagh. Ad-
mittedly at the time of the sale, in respect of which the present
^'laim is preferred, the land in suit wan not ** agricaltural land"
as that term is defined in the Panjab Tenancy Act of 1887, On
the contrary, it is alleged by defeniUnts, and not denied by
plaintiff, that it is the site of baildin;^^ some 200 in namber.
The lower Ooarts hive dismissed the claim on the groands (1)
that KiUa Qnjar Singh is not a village and does not contain a
village commnnity, and that, therefore, no pre-emption arises io
favour of the existence of a custom of pre-emption ; and (2) that
plaintifif has failed to prove that he is by custom entitled to
pre-empt the property.
Plaintiff has preferred a further appeal to thii Oourt, aad
we have heard lengthy arguments as to whether or not KiUn
On jar Singh is a village and contains " a village community",
within the meaning and for the purposes of Section 10 of the
Punjab Laws Act, 1872. lu this connection we may note that
both sides rely on the definition of '* villago community " given
by their Lordships of the Privy Council in the case reported as
Rahim'ud'din v. Raioal (^).
It seems to us, however, quite unnecessary to enter into a
decision upon this extromely vezata questio* We may assume
that to a considerable extent the quarter known as Killa Gujar
Singh, even to this day, constitutes a village and contains a
village comraunity.
There is within its bouudarie^ a fairly large area of agrioul*
tural land which is assasaed to land revenue, and there are alsa
the ordinary village abadi, the ordiniry vill.ige proprietary body,
the ordinary village officers, a record-of-rights, etc. It may,
therefore, be that KtUa Gujar Singh, in part at all events, retains
its former character as a village community. It may be so, but
upon this point we are not called up)n to give any definite
opinion as we decide this case purely on its own facts. Upon
these facts we are satisfied that the p reseat land in suit does
not in reality now form part of the old village of Killa
Ghijar Singh.
During the last 17 or 18 yearn it has been gradually built
upon, and there are now some 200 buildings standing upon it.
(») 66 P. B., 1908, P. 0.
AutfUOT 1907. ] OIVIL JUDGBIBNTS-No. 91. 4g^
It 868013 to as that the area in qaeation has been absorbed with-
in the licnits of L ihore city which has been spreading very
exteasively ia this direotioQ, aad this extension has been partion-
larly noticeable of recent yeiPS. WKtle therefore it is qnite
possible that KilU Gnjar Singh still in partretains its former
oharaoter of a village, we cannot bat conclade from the evidence
that the area now in dtsptUe has for some time past become part
and parcel of Lahore city. In this respect the present case
resembles that reported as Rishan Dial v. AU Bakhsh {}), {cf.
also Karam Hahi v, Bahna Mai (*) ).
Upon this view of the case, we mast hold that no presnmp-
tion arises in favonr of plaintiff's clainii and that it is for him to
prove that in this sab-division of L%hore city or that in Lahore
city generally the cnstom of pre-emption does exist. This he
has clearly failed to establish. A few instances have been given
by him of the eastern, bat all these instances relate to agricaltaral
land within the old village* of Killa Gnjar Singh. On the
other hand, the Lists A, B and 0 filed by the patwaris show that
there have been a very large namber of sales of hoase property
within the area in dispute and in its vicinity, and that no claims
for |Hre-emptive rights were preferred in any single case.
We must accordingly dismiss this appeal with costs.
Appeal dinmssed.
No. 91.
Before Mr. Justice Chatterji, G.LB,, and
Mr. Justice Johnstone.
NUB MUHAMMAD,-(Plaintifp), --APPELLANT,
Versus
AIMNA AND 0THERS,-(Dbfbndant8),— RESPONDENTS.
Civil Appeal No. 1241 of 1906.
Hinor ^Settlement on behalf of a Muhammadan minor by his brothere^
Oompsteney of minor to repudiaU through a neU friend 8uch settlement
without restoring other party to position he occupied at time of arrangement^
Maintainability of suit.
Held, that no auit cim be maintained on behalf of a minor to set aside
a settlement which has been made on his behalf by liis brothers daring his
minority and had been aoted upon by the other party thereto, even ^n the
ground that nnder Biahammadan Law the brothers had no power to contract
on behalf of their minor brother, without first restoring that party to
the position which he occupied at the time the settlement was made.
AppbllAti 8»i.
(») 87 P. B., 1890. ( •) 21 P. B., 1800.
4)8 ^^^^ jraoaiiai^i^s-No. ol. rioou^
Further aopddlffom the dic^ee of Mijor B. 0. B;3, Dloinoini
Judgey Julluniur Division, ditei ^ist Aujust 1903.
Sohaa LU and Browaoi for appellant.
Vishna Singh, for respondents.
Tb3 jalgmeat of the Ooart was delivered bj
8th April 1907. OflATTERji, J.— -The material facts are given in the jadgmeote
of the Lower O^arta. The plaintiff and his brothers are the
next reversioners of Bata, deceased, the original owner o! the
disputed land, kttev BatVi da^th, the propsrty lefl by him
was recorded in the names of his two widows, and on the death
of Mnssammat TJmri, one of them, in the sole name of the other,
Massammat Aimna. la 1894 the plaintiff*s brothers, on his
b3half ai wjII as f>r th^nmlvei, omi to an arraigam^al; «rith
Mnssammat Aimna, by which she surrendered her life estate to
them and to one Fanja, the sister's son of her husband, in the pro-
portion of one-third and two-thirds, and Fauja took upon himself
to pay Buta's debts amounting to Rii. 300 and to maintsin
Mussammat Aimna. This was recorded in the revenue papers aod
is said to be the result of a village panchayat. Plaintiffs and
heir brothers are in the enjoyment of their one«third share of
land, but as the plaintiff was and still is a minor, his brother-ia-
law, as his next friend, has brought the present suit foe a decla^
ation that the widow's alienation of two-thirds of Buta's land in
favpur of Fanja is bad and does not bind him. He repudiates
the right of his brothers to enter iiito*the compromise with
Fanja and Mussammat Aimna, but does not in his plaint
offer to return the benefit he got under it, nor seek to set
aside the entire alienation by the widow.
The Lower Courts have dismissed the claim on the ground
that the ir range lue at waiS on the whole a beneficial one for the
minor, and that his brothers acted in good faith and with
authority. The plaintiff appeals through his next friend and
insists that whether the arrangement is beneficial or not, his
brothers had no authority under Muhammadan Law to do anj
such act as regards his immovable property. He refers to
Bahim Bakhsh v. Ohulami (*), a oaso among the Qujarsof
Hoshiarpnr District, like the parties, in which the Mahammadan
Law was followec(, it being found on inquiry that there was no
custom to the contrary.
(^) 65 P. R., 1898.
AuoUR 1907. ] OIYIL JUBGMBNTS-No. 92. 489
We are of opinion that there is force in the contention
nnder Mnhammadan Law, and there was no siftisg inquiry
into cnstom. Bnt in onr opinion the suit as laid oaght
not to be entertained. The plaintiff is a minor and seeks
to repudiate the act of his brothers, who had the right to
be, and who actually were, his guardians. He is unable
to exercise his own independent judgment as to the merits
of the compromise. He certainly cannot avoid it and
retain the benefits he received under it. He must return
tbe land he got and pay his proportionate share of Buta's
debts. The offer to pay the debt and the surrender of
the land are conditions precedent to his bringing the suit.
As he did not do these his suit should not be allowed
to proceed. His hand, moreover, oaght not be allowed to
be forced by an irresponsible person like his present next
friend. The principle is a well known one of equity. We
think, therefore, the suit should be dismissed on the above
ground alone, leaving plaintiff liberty to sue if he is so *
advised when he attains majority and is able to jadge
for himself.
We accoi-dingly modify the decree of the Lower Courts
by dismissing the suit on tbe above terms. Parties to pay
their own costs in this Court.
Appeal dismissed.
No. 92-
Before Mr. Juetice Shah Din.
GIRDHARI LAL,— PBTITIONBR,
y^rsus ] Rwnsum Bam.
BHAQO,— RESPONDENT.
Civil Revision No. 2481 of 1906.
8aU in eaeeution of decree—Effect of eale when not set aeide
either under Section 810 A or dU— Competency of eaecuting Court to allow
time to judgmefiUdeltor to raise amount of decree after euch eaU— Civil
Procedure Code, 1882, Bectione 806. 810^1 ZU-^Revieion^ Error of law--
JHeregard of imperative ruUe—M^terial irregulaHty- Punjab Courts Act,
1884, flection 70^.
Held, that where hnmovable property has once been lold In
execution of a money decree the ezecutirg Cm/t bos no anibcrify to
allow time to tbe jndgv^ent- debtor to enable him to raise the amount
ot the decree by a private tianafer tf the property or otherwiee ap
^jf^ OlSrth JUDGMBFPS-Mo. M. I BMii
proyided by Section 8(6 of the Code of Civil Procedure ; 8iid,if eoch
a sale 18 not 8<^t af ide either under Fecficn 810 A or 811 tf tbe Code, tie
Court has no rption bnt to confirm (he sale as provided by Sectioi
812.
Held, also, that a complete misapprehenBion of the powers of u
ezecnting Oonrt and the disregard of the imperative rales of prooedore
resulting for instance in Betting adde a sale in ezecnticn of a money decree
where noobjeotioo to the sale had been raised nnder Section 311, is amateriftl
irregnlaiity within the mearing of claoBO (o) of Section 70 (1) of the
Punjab Courts ^ot, 1884.
Peiitionfor revision of the order of W, A, Le Bossignoly Btquin,
Dimaional Judge^ Amritiar Division, dated IQth July 1906.
Tamer and Bap Lai, for petitioner.
Shadi Lai and Balia Ram, for respondent
The jadgment of the learned Jadge was as follows ^-«
6ih April 1907. Shah Dm, J.» After hearing the learned coonsel od
both sides and referring to the record, I am of opinion
that the Lower Appellate Court has acted with material
irregalarity in the exercise of its jarisdiotion in this case,
and its order cannot, therefore, be allowed to stand. It
appears from the file of the ezecation proceedinfi^s that
ihe execation sale took place on 4th November 1905 in
faToar of the petitioners, and that no application was made
by the jadgment-debtors to have the sale set aside either
nnder Section 310 A, Civil Procednre Code, on making thi
necessary deposit reqaired to be made ander that seotdoD, or
nnder Section 311 on the groand of a material irregalarity in
pnblisbing or condncting the sale. That being so, the execndng
Conrt was boand nnder the imperative provisions of S^ion 312,
Civil Procednre Code, to pass an order confirming the sale after
the expiry of the period of limitation prescribed for applications
nnder the aforesaid sections of the Code, see KhetterNath Biswu
V. Fait'Ud-din Alt (*), at page 684, and Umesh Chandra Dai v.
SW5 J/aroin JfandaZ (a), at page 1013. One of the jadgment.
debtors, Mnssammat Bhago, however, filed an application on the
27th of November 1905, purporting to do so nnder Sectioa 305,
' Civil Procednre Code, asking for time to enable her to raise the
amonnt of the decree by mortgage of the property sold by
anotion, and the Conrt granted the application without issning
notice to or obtaining the consent of the anotion purchasers, and
allowed the applicant time till the 5th of January 1906 to
effect the mortgage and deposit the amonnt in Court. It is clear
(>) I. L. B., XilV Calc, 682. (i) /. i. a., 2IXJ Cale., lOU.
AvoOCT 1907. ) OITIL JUDGMENTS— No. 91. 442
that the auction sale haTing taken place befoie tie last mecticn-
cd application wbb filed by tie baid jni'pn entdtbtor, Piclion 805,
Civil Prccednre Code, had absolutely no bearirg ufrn the case,
and the executing Ccnrt had no power to grant the application
nnder that seotioQ. This is not serionnly dispoted bj the
learned counsel for the respondent. Farther, it i?onld appear
that althoogh the said application pni ported to have been made
nnder Seotion 305, the order of the Court was not passed under
its proviBions, for otherwise in pursuance of the second paragraph
of that section the Court would have granted a certificate to the
applicant authorizing her to make the proposed mortgage, and
no such oertifioate seems to have been granted at all. It is
jnst possible that the Court was under the impression that the
judgment-debtor's application was one made under Section 310 A,
but in that case the deposit contemplated in that section should
have been directed to be made along with the application, which
obviously was not done.
Under these circumstances, the order of the Court granting
time to the judgment-debtor till the 5th of Janunry 1906 to
pay the amount of the decree into Court was unquestionably
uUra niresj and the said Court was justified, upon application
being made by the auction purchasers on the 8th December 1905
and after giving the judgment-debtors sufficient opportunity to
•how cause against it« being granted, in correcting the glaring
error of procedure which it had committed and in confirming
the sale as required, nnder Section 312, Civil Procedure
Code.
Apparently all objections to the sale which the judgment-
debtors could have raised under Section 311 were waived, and it
cannot be urged that they have been seriously prejudiced by
reason of a wrong order under Section 305 having been passed.
Be that, however, as it may, it is manifest that the order of
the first Court nnder oonsideration was strictly in aecordanoe
with the provisions of the Code of Civil Procedure, and the Lower
Appellate Court has, in upsetting that order, acted, it seems to me,
upon a complete misripprehension of the powers of an executing
Court and wholly disregarded the imperative rules of law which
regulates the matter under consideration. Such action on the
part of the Lower Appellate Court is tantamount, in my opinion,
to its having acted in the exercise of its jurisdiction with
material irregularity and fully warrants the interference by this
Court on the revision side nnder clause (a) of Section 70 of the
Pnnjab Oonrta Act.
442 CIVIL JUDGMBNTS— No. 98. [ Bmou
ApmXiTB 8IDI.
I aocordlDgly accept tbe reTision and setting aside the
order of the Lower Appellate Court restore that of the Com t of
first iDSfance. Under the circumstaDces I leave the parties to
bear their own costs throughout.
Application attowed.
No. 93.
Before Mr. Justice Chatterji^ CLE., a/nd Mr. Justice
Johnstone.
BICHHA LAL,— (PLAiimFP),^APPBIiLANT,
Versus
GUMANI AND OTHERS,— (Dobndants),—RBSPON.
DENTS.
Civil Appeal No. 1360 of 1906.
Mortgage — Conditional sale — Reference by Oivil Court under evh^aeeUon
8 of Section 9 of Punjab Alienation of Land Act, 1900— fic/usai of Deputy
Commissioner to take action after the non'aeceptanee of his proposal by tht
mortgagor — Procedure for mortgagee^ Regulation XVII of 1806-Puti/a5
Alienation of Land Act, 1900.
A mortgage made berore the commenoeinent of the PtiQJab AL'enation
of Land Act by an agrionltarist of his land in which there was a oondition
intended to operate by way of conditional sale and still current wai
bronghfc by the District Jndge, who was moved to issue a notice of
foreclosure under Regulation XYII of 1806 after the Act bad come into
force, to the notice of the Deputy Oommissioner, The mortgagee accepted
the new mortgage as proposed by the Deputy Oommissioner in lieu of the
original one but the mortgagor refused. The Deputy Commissioner
thereupon decided that nothing further could be done and returned the
reference to the District Judge. Notice of foreclosure was then
issued and after the expiration of the year of grace the mortgagee
instituted a suit for possession as owner.
Eeld, that in these circumstances the foreclosure proceedings xmdet
Regulation X VII of 1806 were nou barred by the provisions of the Punjab
Alienation of Land Act, and that it was not necessary for the Oivil Court
upon the institution of the suit for possession to refer the matter again to
the Deputy Commissioner under sub-section 8 of Section 9 as the mortgage
had then ceased to exist and the mortgagee had beoome ipso facto owner
of the property by purchase.
The interpretation of the provisions of the Punjab Alienation of Land
Act applicable to the subject discussed by Johnstone J.
Further appeal from the decree of 8, Clifford^ Esquire^ Additional
Divisional Judge, Delhi Division, dated 2nd October 1906.
Shadi Lai, for appellant.
Gutcharau Singh, fcr reBpcndetite,
AtfodBT 1907. ) ^ Onnti JUOaMBNTS-No. 03. 448
The jadgment q€ the Goart was delivered by
Johnstons, J.-^The faots fchafc mast be stated for the parpose 2ith April 1907.
ot tha deoisioc of this appeal are these. On 15th February
1897 the foar brothers, Gamaal and others, mortgaged the laad
in sait to plaiatiff for Es 1,0 JO, of whioh Rs 303 was
kept by plaiatiff for pay meat to Diwaa Singh, previoos mort-
gagee of bhis Uad, with s>m 3 8 bighas more. Interest was to
be charged at R^. 1-8 per ceot. per measem, the sum kept for
Diwan Singh to carry iateresfc oaly after p\ym)at to him.
ilortgagjrs agreed that if the total sum due, principal and
interest, was not pud off on the expiry of five years from date of
deed, the laai should be deemed sold to plaintiff.
Before the five years' term expired, the Punjab Alienation of
Land Act (X[[l of 1900) came into force ; aud so, when on 3rd
N«)vember 1903, the tern bBiDg up, plaintiff applied to the
District Judge for issue of notice of foreclosure under Regulation
XVn of 1806, that o fi33r referred the mabter to the Collector
under Section 9 (2) of the 3%il Act. O i 6r.h January 1904 three
of the mortgagor*.^ appeared, Ram Ohand being absent. Those
three said the latid should be made over to mortgagee for as many
years as the Collector might think right. The Collector
recorded an order that Ram Chand must appear and
added a note that a mottgage for 20 years would meet the
case and fixed 19th January. On 18th January the aforesaid
three mortgagors appeared and put in a petition to the effect that
they could not consent to a mortgage for more than seven years.
On this the Collector on the following day decided that nothing
farther could be done and so returned the papars to the District
Judge. The noticer for foreclosure then issued, and the year of
grace having expired, plaintiff brought this suit for possession
as owner, without impleading Diwan Singh, previous
mortgagee.
Defendants expressed willingness that the land be made
over to plaintiff in mortgage for 20 years ; but plaintiff now holds
out for the ownership of the land.
The first Court looked at Financial Commissioner's Circular
Letter No. 3482 of 6th June 1903 and held that it could not
again refer the matter to the Collector, who had, in aooordance
with paragraphs 4 to 6 of that Circular Letter, considered himself
functus officio. It then went on to find that the notice of
foreclosure was regular and complete, that there was no need to
serve any notioe on Diwan Singh, and that plaintiff must have
a decree for possession as owner on payment of Bs. 365
444 ^^^^ JUDGMBNTS— No. 98. [ RmooftD
to Diwan Singh, i-e , Ks. 300 prinoipal and Rs. 65
interest.
The learned Additional Olriaional Jadge only dealt with
the qnestion arising nnder Section 9, Pnnjab Alienation o!
Land Act. He held that plainti£E is not entitled to foreclose ;
that '' the object of Section 9 of the Act was to prevent the
'^ enforcement of conditional sale olanses where snch had not
" become absolnto by notice and expiry of the year of graoe
" before the Act came into force "; that, if the mortgagee elects
before the Oollector for a mortgage under Section 6 of the Act,
all that remains is for the mortgagee to sae for possession as
mortgagee and for the Oivil Oonrt to decree possession for the
term and sum 6xed by the Oollector ; that if the mortgagee
refnses to make election before the Collector and saes in Oivil
Court, the suit should " abate "; and that, inasmuch as in the
present case mortgagee did consent to a mortgage under Section
6 for 20 ye^rs and the defe id^nts are now willing to agree
to this, the Oivil Court should decree possession as mortgagee
for 20 ye^rs. The Divisional Judi^e tharefore accepted the
appeal and gave plaintiff the decree indicated.
Plaintiff appeals, urging—
(a) that the Divisional Judge had no jurisdictioti to pass
such a decree as the above ;
(6) that the Collector's powers were exhausted on I9th
January 19045 and the Civil Court was bound to
give possession as owner to plaintiff by w.iy of
foreclosure ;
(c) that in any case interest should have been awarded
on the outetanding debt from date of defendants'
refusal before Collector.
The learned Divisional Judge has in my opinion misunder-
stood the proceedings of the Collector and the meaning of the
relevant sections of the Act, and has gone beyond his powers in
giving a decree for possession as mortgagee for 20 years.
Regarding this last point there is no difference between the
parties, defendante admitting that the Civil Court had no
power to fix a term of years for automatic liquidation of
the debt.
Certain parts of the Alienation of Land Act, 1900, must be
set out here in order that my view of the case may be made
dear.
AuGCiT 1907. 1 OlVlL JUDGMt)M(rS-No. 08. 445
" m
Section 2 (4). " The expression * permanent alienation '
*' inclndes saleF, exchanges gifts and willp, bnt does not inclode
*• anj gift for a religioaB or charitable purpose whether made
" inter vivos or by will."
Section 3 (1). ** A person who desires to make a permanent
" alienation of his land shall be at liberty to make snoh
" alienation where—
(o) • • • *
(ft) • ♦ • ♦
(c) * • ♦
provided that ♦ * ♦ -
(2). " Bzcept in the cases provided for in sab-seotion (1), a
*' permanent alienation of land shall not take effect as snoh unless
*' and until sanction is given thereto by a Deputy Oommissioner."
• • ♦ • • # •
Section 9 (1). " If a member of an agricultural tribe makes
'' a mortgage of his land in any manner or form not permitted by
'*or under this Act, the Deputy Commissioner shall have authority
" to revise and alter the terms of the mortgage so as to bring it
'' into accordance with such form of mortgage permitted by or
*' under this Act as the mortgagee appears to him to be equitably
** entitled to claim.
(2). ** If a member of an agricultural tribe has before the
" commencement of this Act made a mort^aj^e of his land in which
" there is a condition intended to operate by way of conditional
'' sale, the Deputy Commissioner shall be empowered at any time
** during the currency of the mortgage to put the mortgagee to his
" election whether he will agree to the said coodition being struck
" out, or to accept in lieu of the said mortgage a mortgage which
" may at the mortgagee's option be either in form (a) or in form
'' (6) as permitted by Section 6, and which shall be made for such
'' period not exceeding the period permitted by the said section
*'and for such sum of money as the Deputy Commissioner
*' considers to be reasonable.
(3). **If proceeding for the enforcement of a condition
'^ intended to operate by way of conditional sale are instituted or
*< are pending at the commencement of this Act in any Civil Court,
'' or if a suit is instituted in any Civil Court on a mortgage to
^ which snbHsection (I) or sub-section (2) applies, the Court
'' shall refer the case to the Deputy Commissioner ivith a view to
** the ezerdse of the power conferred by the sub-section applying
•* thereto."
446 CIVIL JtiDGMBNlB-No. 93. t Becoed
S ectioD 6 (1). " If a mdnber of an agiicultural tribe mort-
" gages his land and the mortgagee is Dot a member of the same
" tribe, or of a tribe in the same group, the mortgage shall be
'* made in one of the following forms :
(a) ** In the form of a usufrnctnary mortgage by which
"the mortgagor delivers possession of the land
*'to the mortgagee aLd authorizes bim to
" retain such possession and to receive the rents and
'* profits of the land in lien of interest and towards
'* payment of the principal, on condition that after
'* the expiry of the term agreed on or (if no term is
" agreed on, or if the term agreed on exoeeds twenty
'* years) after the expiry of twenty years, the land
** shall be re-delivered to the mortgagor ; or
(6) *' in the form of a mortgage without possession, subject
" to the condition that if the mortgagor fails to pay
" principal and interest according to bis contract,
'* the mortgagee may apply to the Deputy Com-
" missioner to place him in possession for such term,
'^ not exceeding twenty years, as the Deputy Com-
*< missioner may consider to be equitable, the mort-
"gag© to be treated as a usufructuary mortgage for
" the term of the mortgagee's possession and for such
** sum as may be due to the mortgagee on account of the
" balance of principal due and of interest due not
" exceeding the amoant claimable as simple interest
'* at such rate and for snch period as the Deputy
<* Commissioner thinks reasonable. "
Section 14. " Any permanent alienation which under
" Section 3 is not to take efiFect as snch until the sanction of the
** Depoty Commissioner has been given thereto shall, uotil such
*' sanction is given or if such sanction has been refused, take
'* effect as a usufructuary mortgage in form (a) permitted by
" Section 6 for such term not exceeding twenty years and on
*< such conditions as the Deputy Commissioner considers to be
** reasonable. "
Section 10. " In any mortgage of land made after the
" commencement of this Act any condition which is intended to
** operate by way of conditional sale shall be null and void."
Upon a consideration of these provisions of law one
principle that emerges is that conditions of sale are only
absolately and necessarily null and void by the operation of the
August 1^7. ] ClVIL JtHX^MfiKTS— No. 98. 447
new law if ocoarring in n ortgages 'made after commencement of the
Act. If I therefore, the condition of sale in the present case is
nail and void or is unenforceable, it must be by virtue of some
section ofcher thau Section 10. Section (3) refers to cafles of
permanent ah'enaitons which persons desire to mdkej and it applies,
of course, to transactions entered into after the Act comes into
force. In the present cuse the alienor made a mortgage (a
temporary aliMnatiin, not a permanent one, c/. Section 2 (4))
before the Act came into force ; and in my opinion it would be
a straining of language to hold that when upon the expiry of
the period for redemption (tlmt is here, after the Act came into
forct^), the alienor found him«»elf unable to raise the money and
pay his debt, he desired to make a permanent alienation. There-
fore, in my opinion. Section 3 has no application to the present
case. Whatever he desired to do he did before the Act came
into force ; and so even if it be taken, by using violence
to the wording of the mortgage deed, that when he executed the
deed, he desired to make a permanent alienation, that was done
by him befoie the Act came into force and thus equally Section
3 does not apply.
Taming to Section 14 I find that its opening words shew
it to be wholly inapplioablo to the present case. It applies Only
where Section 3 applies ; and thus I am driven to the conclnsion
that Section 9 is the only refuge for the mortgagors against Iosh
of their land, if indeed any refu;?e remains at all. Sub-section
(1) of Section 9 has obviously no bearing on the case, and so we
have to see what is the effect nf sub-sections (2) and (.S). Under
the former sub-section the Deputy Commissioner is " empowered "
to offer certain alternatives to the mortgagee. In the present
case he did so and the mortgagee accepted the second alternative,
the term fixed being twenty years. Mortgagors refused to execute
the proposed new mortgage; and so the Deputy Commissioner,
folio wing the Financial Comn^ipsioncrs Circular Letter aforesaid,
annourced that he must refrain from further action. It is
urged on behalf of the dtfendants mortgagors that the Deputy
CommissioLer should have insisted upon the proposed mortgage,
though it is not explained how the new deed was to be executed
ptr invitum. It seems to mo that this view is unsound. If the
Deputy Commissioner has an option in regard to the original
offer of alternatives— that is, if he can, even when the
matter first comes to his notice, decline to intervene,
ho can surely drop the whole thing and refuse intervention
when, after questioning the parties, ho finds diflSoulties
arise. The Financial Commis'^ioner s instructions authorize
448 ^^^^^ JUDGllBMl^B-nBo. 9l \ tmcimb
bim to drop the whole thing and, in my opinion, whether
it 18 correct or rot, to^ pay that he must drop it, he cer-
tainly may do so if he thinks fit ; and it seems to roe
thai the necessary ojoseqaenoe of his action was that the
ordinary law took its oonrse, seeing that nnder no other section
of the Act, as we have seen, is the completion of the forecloFiire
bamd.
It is farther argued that, when this sait was filed, the
Oivil Oiart shonld haye again referred the matter to the Depniy
Oommissioner onder sab-aeotioD (3) of Section 9. But that
sab-seotioa oan only be used, when either sab-section (1) or (2)
lilies; and here neither applies— (1) obvionsly, and (2)
beoaase of the words in it *' daring the cairei cy of the mortgage."
It is settled law, that apon the expiry of the year of grace
allowed by Begnlation XVII of 1806 the mortgagee becomee
• ipao facto owner of the property by parchase even tboagh he
may still have to sae.for possession. It follows that this sait
was not instituted " dttring the currency of the mortgage '*, and
therefore the Deputy Commissioner had no power, after sait
was institoted, to pat the mortgagee to his election und&c
sab-seotion (2).
Our attention has bren drawn to G. B. 1426 of 190.') of ihis
Ooort, and in it I find authority for another way of locking at
* the present case, which is equally fatal to defendants' conten-
tions. It was ruled there inter alia that, when the Deputy Oom-
missioner, acting ander Section 9 (2) of the Act, dedi.iee to
interfere, he thereby sanctions the permanent aliena tion. I
need not enlarge upon this. It seems to me the dktum is
peculiarly appropriate to a case like the present, where the
reference by the District Judge to the Deputy Oommissioner in
a very special way broaght to the notice of tbe latter that
if he did not intervene, the proprietary right in the land woald
shirtly pans to the noii-agricaltaridt mortgagee. It is no forced
interpretation of the Deputy Oommissioner's action in ihP
present case to hold that by implication he said — Let
it 10 pass.
For these reasons I would accept the appeal, set aside the
decree of the Lower Appellate Oourt and remand the ease to that
Ooart for re-trial of the appeal on the remaining questions
arising, inclading the qaestion of the efEect upon plaintiff's claim
of his not having paid off Diwan Singh, prior mortgagee.
J 'I 1907. Chattebji, J.— I concur generally in the foregoing judgmeat.
Appeal aUowecL
August 1907. ] CIVIL JUDGMENTS— Na 94. 449
No«94.
Before Sir William Clark, KL, Chief Judge.
RAM CHAND AND OTHBRS,-(PLAumffs),— APPELLANTS,
Versus \ Appblliti Sidi.
THAKAR DAS AND ANOTHER,— (Dbpbndants),—
RESPONDENTS.
Civil Appeal No. 816 of 1906.
Custom — Adoption ^Adoption of wifti*a brother's son^Bindn Law or
custom^Brahmans of mauza Dialpur, tahsil ^osf^r, Lahore District —
Locaa standi of the reversioners of the eigMh degree to contest such adoption
^Burden qf proof.
Held, that in matters of adoption Brahmana of mauza Dialpar, tahsil
^ Kasnr, in the Lahore District, who are foil proprietors with share of shamilat
in the village, and had settled with the founder, had for eight generations
caltivated land, and had closely associated themselveH with the Jat proprie«
tors of the village, were governed by the general rules of agrionltural
custom and not by Hindu Law, and that the defendants had failed
to discharge tho burden which, under the cirouoiataooes, lay upon them of
proving that the adoptiou of a wife's brother's son was valid by custom, or
that the ooUaterals of the eighth degree were not entitled to contest saoh
au adoption,
Moti Ram v. Sant Bam (*), Shazan Singh v. Rein {*), Natha Singh v.
Mohan Singh (»), Kariar Singh v, Mathar Singh (•), Oirdhari Lai v,
Dallu Mai ('), and Nur Muhammad v. AlimtUiah (<*), referred u>.
Further appeal from the decree of 0. L. Dundas^ Esquire, Divisional
Judge, Lahore Division, dated 1 Uh December 1905.
Sakli Dial, for appellants.
Tirath Ram, for respondents.
The judgment of the learned Chief Jadge was as follows : —
CuiBK, C. J. —This was a suit between Brahmans of Dialpar, 22nd March 1907.
tahsil Kasar, Lahore District, to set aside an adoption of a wife's
brother's son by a sonless proprietor.
This Brahman family settled in the village some 200 years
ago with the founder, 100 bighas having been given as sankalp
by the Jat founder to the common ance^ 3r of the parties, •
Lakhmi Das. The adopter, Thakar Das, represents half the
family and owns some 50 bighas, and plaintiffs are some of the
other half of tife family, and own their share of the other
50 highas.
(>) 103 F. R., 1902. (*) 94 P. R., 1898.
(•) 35 P. B., 1906. (•) 3 P. -R., 1901.
(•) 98 P. B., 1906. (•) 75 P. B., 1892.
450 ^'^^ JUDGMENTS— No. 94. t JIkjoed
Thakar Das was in the eighth degree from the oommon
anoeator, ooanting both Thakar Das and the common ancestor.
The land owaod by Thakar Das was certainly ancestral property
with reference to plaintiffs.
The first question for decision is whether the parties follow
custom or Hindu Law.
Plaintiffs put fiorward custom and defendants Hinda Law.
Defendants rely upon MoH Bam v. 8ant fiam(^), a case,
of Brahmans of Manhala, said to be only a few miles from
Dialpur. The Brahmans there held land, but were not fall
proprietors, had no share of the ahamilat and depended
[ largely for their support on contributions from their fajwutntt
and had not settled with the founders ; they were held to follow
Hindu Law.
In this case the parties cultivate land, and plainti& also
keep a shop and receive virt^ but they are full proprietors in
the village with share of shamikU and were settled with
the founder. They were also parties to the wajib-td-^vrM and
agreed to the same conditions as the Jats as to the alienation of
lands, and as to the non-succession of daughters.
The adoption is really the appointment of an heir and
similar to the alienation of land, and I hold that in matters of
adoption the parties follow custom and not Hindu Law.
The next question is whether plaintiffs beiog in the eighth
degree from the adopter can challenge the adoption. Following
Khazan iiingh v. lielu (^), I hold that it was for defendants co
prove that they cannot challenge the alienation, and they have
failed to do this.
Natha Singh v. Mohan Singh (^) is quoted against this view,
but that judgment was based on the special facts of that case
and does not go counter to the general principle laid down in
Khazan Singh's case.
The next question then is whether the adoption of a wife's
brother's son is invalid by custom of Jats (and oonseqaently
Brahmans) of this village.
Here also the question of onus has been argued at length.
For defendants Kartar Singh y, Mathar Singh {^)ia relied
upon. This was a case of Sikh Khatris of Rawalpindi. The
(») 108 P. a, 1902. <•) 93 P. B., 1906.
(•) 35 P. B., 1906, (•)94P.B.,1898.
Aoouar 1907. CIVIL J01>aMBNTS-No. 95. 451
parties did not belong to an agrionltnral community, and as
aooording to the personal law of the parties, Hindu Law, the
adoption of a wife's brother's son was valid, it was held that the
onfis of proving its invalidity by custom lay upon the challenger
of the adoption. Also Oirdhari Lai v. DaUa Mai (^). This
was a case of Dhawan Khatris of B^erozepore, the adopted child
was a wife's Sister's son. It was held that presumably the
parties followed custom, bat not the custom of agricultaral tribes,
and that this custom was not shown to differ in essential particu-
lars from Hindu Law and the factum, and the validity of the
adoption was held proved.
This case is distinguished from both these cases by the
fact that the Brahmans in this case, as I have shown above, have
closely associated themselves with the Jat proprietors of the
village in which they live and in some matters at least have
adopted their customs.
An adoption of this kind is so nnasual and so at variance
with the agnatic rule of inheritance that I think the onus of prov-
ing its validity lay on defendants (vide Nur Muhammad v.
AlimuUah (*) ) and they have failed to discharge it.
I therefore accept the appeal and set aside the orders of
both Courts and decree declaring that the adoption of Atma Ram
by Thakar Das is Dull and void as against plaintiffs' reversionary
rights with costs throughout.
Appeal aUcwed,
No. 95.
Before Mr, Justice Bolertson and Mr, Justice Kensington.
RAJ SARUP,—(PLAiNTiFf),— PETITIONER, -v
Versus VRbyision Sidi.
HARDAWARI,—(D!BFBndant),— RESPONDENT, ^
Civil Revision No. 84 of 1905.
Kndhi kamini— fifuit for the recovery of -^Village cess^Jurisdiction of
Civil or Revenue Oourt^Punjdb Tenancy Act, 1877, Section 77 (8) 0'>.
Held, that hudhi Jcamini is a " village cess ** within the meaning of
Seotion 77 (3) 0'} of the Punjab Tenancj Aot, and a suit therefore for
it8 recovery is cognizable by the Revenae and not by the Civil Gonrts.
FoMati. damandar Khan (*>, Qowhra v. Alt Cktuhar (*), and Shahya v,
Karm Khan (■) followed.
C) tP.B,. 190L (•) 49 P. B., 1891.
(•> 7ft P. B.. 1803. (*) 11 P. B., 1890, Bev.
(•) 95P.B^1907,lfote.
452 ^^^IL JUDGMBNTS— No. 96. ^ I Bboord
Petition for remsion of the order of Lata Ude Earn, Mwmf,
Bohtalc, dated i9th November 1904.
Lakshmi Narain, for petitioner.
The judgment of the Court was delivered by
bth April 1907. Kensington, J.— In the case a snit for recovery of certain
Jcudhi kamini dues has been decided by a Small Ganse
Court. The question before us is whether such suit would lie in
a Civil or a Revenue Court.
We take the term Jcudhi kamini to mean a hearth cess and
to be the equivalent of the door cess or haqq-huha of districts
in the Western Punjab. See paragraph 94 of Mr. Douie's
Settlement Manual for the Punjab.
Following the decision jjiven in Fazal v. Sam^ndar Khan {})
and in Oowhra v. Alt Oauhar (•) and an unpublished
judgment of this Court, dated 8th March 1906, on Civil Reference
No. 11 of 1904 (^), we hold that kudhi kamini is a village oess
within th^ meaning of Section 77 (3) (j) of the Punjab
Tenancy Act, and that a suit for recovery of the dues is
excluded from the jorisdiotion of the Civil Courts.
We are unable to rectify the error by registering the decree
of the Lower Court as a Reveuue Court decree under Section 100
of the Tenancy Act, as the suit has been dealt with by an officer
exercising Small Cause Court powers. We must, therefore,
accept the application for revision, set aside the proceedings of
the Lower Court on the ground that the Court had no jurisdictiou,
and direct that the plaint be returned to the plaintiff for
presentation in the Revenue Court of an Assistant Collector of
the Ist grade.
No order as to costs in this Court. The plaintiffs-petitioners
are responsible for their own mistake ani the defendant
respondent has incurred none.
(0 49 P. B., 1891. (•) 11 P. «.. 1890, Rev.
(*) Published as note to this case.
SiPTE. 1907. ] CIVIL JUDGMENTS— No. 95. 45g
* Rbfbioncb Sidb.
Note.^The following is the unpubliBhea case referred to in the
above jndgment.
Before Mr, Justice Robertson and Mr. Justice Kensington.
SHAHTA AND OTHBRS,-(Depbndants),-APPBLLANTS,
Versus
KARM KHAN AND OTHERS,- (Plaintiffs),— RESPON-
DENTS.
Civil Reference No. 11 of 1904.
Oase referred by Major 0. P. Egerton, Deputy Oommisnoner,
Bawalptndi,
Nanak Chaod, for appellants.
The judgment of the Chief Court was delivered by
Kkhsiugton, J.— The term haq buha, which forma the subject 8th March 1905.
matter of the suit before us, is explained in paragraph 143 of the
Rawalpirdi Pinal Settlement Report of 1887.
It has been held both by this Court (Fatal v. Samandar
Khan(^y), and by the Financial Comrais?'ioner (Qowhra v. Ali
Oauhar (^)), that customary dues of this nature, levied by the
proprietary body of a village from non-proprietary residents,
fall within the definition of village cess contained in clause (12)
of Section 4 of the Tenancy Act. Suits for recovery of these
dues are therefore cognizJtble by the Revenue Courts under
Section 77 (3) (j) of the Act.
It follows that under the ruling in Bahadur Khan v.
Sartiar (•), with which wo agree, the present suit has been
correctly instituted in a Revenue Court, though brought for a
declaration in regard to the dues under Section 45 of the Land
Revenue Act. We do not think that there is any serious conflict
between the ruling last quoted and that contained in Baja blur
Khan v. Mussammat Varab Khatun (*), which dealt with a
different matter and was strictly conSned to the case then before
the Court. It does not follow that because a Civil Court
can entertain a declaratory suit in regard to title as entered
in the record of rights, it will, therefore, have jurisdiction
in declaratory suits of a different nature, covering matters
spocifioally referred to in Section 77 of the Tenancy Act,
Our reply to the reference is that the Revenue Couiia in
this case have jurisdiction and that the appeal should be heard
by the Collector. We make no order as to costs.
(») 49 P. R., 189L (•) 89 P. B., 1895.
(•) 11 P. fi., 1890, Beo, (♦) 36 P. «., 1889,
454 ^'^^^ JCBGMEl^S-No. 96. ( Biooss
No. 96.
Before Mr. Justice Rattigom and Mr. Justice Chitty.
PAIZ BAKHSH AND OTHERS,— (Plaintiffs),— APPEL-
LANTS,
Versus
Appbluti Sidb. <
/ JAHAN SHAH AND OTHERS,- (Dbfbindants),— BBS-
PONDENTS.
Civil Appeal No. 1094 of 1905.
Cuatom^Alienation^Qift hy a ehildleU proprietor of his entire eitete to
tuH) of his grand-nephews in presence of other nephews and grand-n^jlhsKn^
Uair Rajputs of Chakwal tahsil of the Jhelum District.
Fotmd that nmongBt Mair Rajpnts of the Chakwal tahsU of the Jhelom
Diitriot, a gift by a ohildless proprietor of his entire eetate in faYoiir of two
of his grand-nephews in the presence of other nephews and grand-nephewi
' is valid by cnstom.
Further appeal from the decree of Oaptain B. 0. Boe, Bivisiowd
Judge^ Jhelum Division^ dated \4dih August 1905.
Ganpat Rai, for appellants.
Nanak Ghaod, for respoQdents.
The jndgment of the Coart was delivered hj
og^. Jfat/ 1906 Rattigan, J. — The parties are Mair Rajpats of the Chakwal
tahsiU Jhelam District, and the question involved is whether a
childless proprietor is competent to transiPer hy gift the whole of
his estate in favour of two of his grand-nephews in the presence
of other nephews and grandnephews P The case reported as
TSiaz Alt V. Ahmad Bin (0 « directly in point, and it was thew
held (after a remand for full inquiry) that a gift by will in favour
of one nephew was valid by the custom of Mair Rajputs of this
very tahsil. We see no reason to doubt the correctness of ibis
decision which was referred to with approval in 8her Jang ▼•
GhuUm-Mohi'ud^n (*)yHJid upon its authority (reading it with the
ruling of the Full Bench in Mustammat Banc v. Faieh Khan (')),
we hold that the gift to Jahan Shah and Karm Shah was valid
and the plaintifiEs' suit was, therefore, rightly dismissed. Mr.
Ganpat Rai urged that an opportunity should be given to
plaintiffs to produoe further evidence in support of their case, bat
we do not think that any good and suflScient reason has been given
for further protracting this litigation. The parties had ample
(0109 P. B., 1882. (•) 22 P. B^ 1904.
(•)48P.B.,1908, F. 3,
SiPTB. 1007. ]
CIVIL JUDeHfiNTS— No. d7.
456
opportaDity of prodnoing evidenoe in connection with the third
issne, and if plaintiffs' evidence npon the qnestion of cnstom is
weak, its weakness is presamably dne to the fact that cnstom is
against them. That this presumption is justifiable is apparent
not only from the finding in Nicus Ali v. Ahmad Bin (*), but
also from the &ct that 5 oat of 8 reversioners have not joined
plaintiffs in this suit.
We dismiss the appeal with costs.
Appeal dismissed.
RBVISION i^IDB.
No. 97.
Before Mr. Justice Chatterj\ C, L E., and Mr. Justice
Johnstone.
JIWANI,—(PLAiHTiFf),— PETITIONER,
Versus
BHAGEL SINGH,— (Dbfehdaot),— RESPONDENT.
Civil Revision No. 2183 of 1904.
Revision-^ IHsmUsal of application Jor default- Potcer of Court to retiore
such application-^Sufficient cause-^-'Civil Procedure Code, 1882, Sections 103,
647.
Held, that Section 108 of the Code of Civil Procedure applies by virtue
of the provifiioDS of Section 647 to an application for revision disniissed for
the default of the petitioner, and that the non-appearance of the counsel
on behalf of a parda-nashin lady owing to an unusual combination of
oiroomstances is a sufficient cause for setting aside the default.
Court of Wards v. Fatteh Birigh (>) dissented from.
Umar Din v. Ala BaJchth (*), Coates v. Kashi Bam v»), Keshori Mohan
8eth V. Qui Muhammad Shah (♦), and fiiira Mai v. Kuria (•) referred to
and distinguished.
Application for re-admission of the application for revision dismissed
in defauU by the Chief Court on Ihth May 1906.
^ Ishwar Das, for petitioner.
Dhanpat Bai, for respondent.
The indgment of the Court so far as is material for the
porposee of this report was delivered by
JoBNSTONi, J.— On 16th May 1906 a Judge of this 2'nd April 1907.
Ooort dismissed this revision petition for default. On 12th
(*)109P.B^1882.
(•) 75 P. R., 1881,
(*)64P.£., 1001,/.B.
(*) 76 P. «., 1903.
i^)l.L.R.,XVOalc.,Vn.
(•) 62 P. &• 1884.
456 CIVIL JUDGMENTS- No. 07. [ Bicobd
June the petitioner applied for restoration of the petition to
the file and, in the alternative, for admieaion of the application
as a fresh leyision petition. This application has been refeired to
a Division Bench, and we have heard argaments.
The first qaestion is whether an application for restoration
can be entertained at all, and in connection therewith we have
been referred to the following authorities : Court of Wards v.
Fatteh Singh (^)i VmarDinY. Ala Bakhsh (^)^ Goates y. Kashi
Bam (•), Keshori Mohan Seth v. Ovl Mohamed Shdha (*) and
Bur a Mai v. Kuria (•) Wo have also read Section
102, Section 566, and Section 647 of the Civil ProceduTO Code.
Mr. Dhanpat Rai relies mainly on the Panjab mlings in
Court of Wards v. Fatteh Singh (») and Umar Din v.
Ala Bakhsh (*). The first is in terms directly in
favour ; but the decision on the point there is stated
in a single sentence withoat discDSsioL, and the Beuch allowed
the petition to be taken as a second petition on the merits. At
that time the stamp on a revision petition and the stamp on an
application for restoration to file were the same, and therefore
the question was one of little practical importance, and so we
. see that the ruling is by no means a valuable authority. In Umar
Din's case the immediate point for decision was diiferent and the
case of Court of Wards was merely incidentally cited with
approval) again without any formal discassion of the point now
before us and without any formal reiteration of the dictum upon
which Mr. Dhanpat Bai relies.
Th raling Bura Mai v. Kuria dealt with a matter of exe-
cution. An objection petition under Section 278, Civil ProcedoiQ
Code, bad been dismissed for default, and ifc was held that
no petition for its restoration to the file was admissible, Section
64.7, Civil Procedure Code, being taken as not extending to
execution proceedings. We do not think this any guide here.
In connection with execution of decrees, the code contains a
long and elaborate chapter of procedure, and it may be right to
say that all possibilities in connection with execution can be
found there.
We do not think that the Punjab ruling in Coates v. Kashi
Bam or the Calcutta ruling in Keshori Mohan Seth help respon-
dent much. In the latter the learned Bench decided the matter
of transfer of execation proceedings from one Court io another
V) 76 P, R., ISSl, (») 76 P. B., 1903
(•> 54 P. a, 1901, F. B. (*) /. L. iJ., Xr Gate,, 177.
(•) 63P.B., 1894.
SiPTB. 1907, ]
CIVIL JUDGMENTS— No. 97.
467
as a pore matter of Bengal practice and not as a matter of
law. Clearly the dictum there is no gaide to as here. In the
Panjab raling it was laid down that in execntion proceedings an
applicant cannot avail himself of Section 103, Civil Proced are
Code, and thereby get an objection restored which has been
dismissed for default : that in absence of prosecation of an objec-
tion to attachment, the Court should dismiss in defaalt, that if an
objection has been disposed of on the merits, a fresh objection
by the same objector cannot be entertained, the objector's remedy
being, if any exists, by vtAj of review ; and that this Court will
not interfere on the revision side if a convenient remedy othec
than revision exists.
Our view is that, though Section 647, Civil Procedure Code,
may not extend to execution proceedings, there is no clear author-
ity that it does not extend to revision proceedings. The dictum
in Oou/rt of Wards v. Fatteh Singh is probably unsound, and is,
as we have shewn, of little valae as an authority. Taking
the words of Section 647 • in their plain meaning, we are unable
to see why they should not apply to revision proceedings.
But apart from this there is another way of looking
at the matter, even if Section 647 be ignored. Under Section 621,
Civil Procedure Code, this Court in revising can pass virtaally
any order it thinks fit, and it can certainly (and probably should,
see Ooales v. Kashi Bum quoted above) dismiss for defaalt
in the case of failare to prosecute. The powers, then, in sach cases,
are something like the powers of an Appellate Coart — less than
those powers in that some matters that can be taken up in appeal
cannot be taken up in revision, bat quite equal to these powers
in dealing with the case within the sometimes restricted limits.
Among other things, as we have already stated, the revising
Court can dismiss for defaalt, though this is not plainly stated
in any Section ; and in oar opinion the power to dismiss for
defaolt, in proceedings which in their nature so much approzi*
mate to appellate proceedings, naturally connotes the power to
restore after defaalt, when the default is satisfactorily explained.
If a petitioner has been prevented, by some cause beyond his
control, from prosecuting a revision petition under the Pnnjab
Courts Act, he is in no way to blame. It is uaaally no ase to him
that the law allows him to present a fresh revision petition, for
the time-baj!' comes in. Even if no time-bar supervenes, he
has to pay another ad valorem daty, though he has been in no
way to blame, and we c\nnofc think thafc fcho Legi^^lature intend-
ed in these ways to penalise innocent defaults.
• Section 647, Oivil
Procedure Code,
The procedure *,
herein prescribed
shall be followed as
far as it can be made
applicable in all pro-
ceeding in any Oourt
of Civil jurisdiction
other than suits and
appeals.
Explanation,
This section does
not apply to applica-
tions for the execu-
tion of decrees,
which are proceed-
ings in suits.
458 CIVIL JUDGMENTS— No. 99. [ Becow
In onr opinion, then, a petition for restoration is competent,
and we admit the petition now before as and overrnle the res-
pondent's objection.
The next question is whether there was in fact sufficient
canse for the default. Here the important facts are that the
petitioner is a lady, who, according to the customs of the coaniry
can hardly be expected to appear in person in Court, and that
she engaged ttoo counsel to represent her. Owing to an nnosual
combination of circumstances neither could appear, and we thiok
it would be harsh and pedantic to rule that the default cannoi be
condoned in the case of a lady, who rather went out of her way
to ensure an appearance being put in for her. We hold that
there was sufficient excuse for default and we restore the
revision petition.
Ifote.— The rest of the. judgment is not material to the report.
Full Bench.
No. 98.
Before Sir William Clark, Kt, Chief Judge, Mr. Justice
Chatterji, and Mr. Justice Robertson.
ABDTJLLA,—(PLAiHTirp),— APPELLANT,
Appbluti SiPB, \ Venus
ALLAH DAD AND OTHERS,— (Defendants),— RESPONDENTS
CivQ Appeal No. 1131 of 1904.
Custom'^ Alienation — Alienation of occupancy rights — Right of reversioner
to restrain such alienation ^Burden of proof^Punjab Tenancy i4c(, 1887,
Section 69.
Held, by the Full Bench that, where, in a enit by a collateral o£ u
oooDpancy tenant to obtain a declaration that a certain alienation by u
occnpanoy tenant of his occupancy rights would not bind his reversioiiirj
interests, it is proved, that the plaintiff was entitled to succeed to oocnpancj
rights on the death of the alienor and that had the subject matter in qaestioo
been a proprietary right instead of a right of occopancy he could hare main*
tained the suit, the onus of proving a special custom that the plaintiff was
not competent to maintain his sait will lie on the person asserting the
existence of such a custom.
Karam Din v, BharafDin (*), Faiz Baksh v. Ditta (•), and Bart Chand t.
Dhera (•), referred to.
Further appeal from the decree of TT. Ohevis^ Esquire, Dtristonal
Judge, Batoalpinii Division, dated 2^d Ma/rch 1904.
Rosban Lai, for appellant.
Bodh Raj, for respondents. ^^
(M 89 p. R., l«n F. B. (•) 115 P. R., 1901.
(>)12,P. B.,1904.
Sbptb. 1907. ] CIVIL JUDGMENTS-No. 88. 459
This was a reference to a Fall Bench made by Rattigan
and Lai Chand, JJ., to determine, whether in a snit brought by a
collateral of an occupancy tenant for obtaining a declaration
that an alienation of occupancy rights by the occupancy tenant
would not bind his reversionary interests, the onus is on plaintiff
to proye that by custom he is competent to contest such aliena-
tion or whether it is for the defence to prove that by custom the
plaintifE has no such right.
At the first hearing the point of law involved was referred
to a Division Bench by the following order of the learned Judge
in Chambers :—
Lal Chand, J.— The Divisional Judge has held in this case 1^^ May 1906.
relying on Faiz Bakhsh v. Bitta (Oi t^a* the onus lay on plaintiff
to prove that by custom he is entitled to question the validity of
the alienation of occupancy rights made by his father. At
contrary view was taken in Hari Chand v. Bhcra («), but withou
any reference to Faiz Bakhsh y. Dttta (O,orto the reasoning
adopted in that judgment. I therefore refer this case to a
Division Bench with a view to further reference to Pull Bench
if under the circumstances it be considered necessary and
desirable.
An early date should be given.
The order of the Division Bench (Rattigan and Lal
Chand, JJ.) referring the question of law to a Pull Bench was
as follows "—
Rattigan, J.— The question in this case is whether the onus 7^;^ j^iy x906,
was on plaintiff to prove that he had by custom the right to
contest the alienation of occopancy lights mad^ by his father, or
whether it was on defendants to prove that by custom plaintiff
had no such right.
The decisions of this Court upon the point are conflicting,
(see Faiz BaJchsh v. Bitta (>) and Hari Ohand v. Dhera («) and
we accordingly refer the question to a Pull Bench for determi-
nation.
The judgment of the learned Judges constituting the Pull
Bench was delivered by
Robertson, J.—Thls case has been referred to a Pull Bench 29th Now, 1906.
in const qnence of an apparent ccuflict between the decisions in
(J) 115 P. JR., 1901. V) 12 P. B.,ld04.
460 CIVIL JUDGMENTfi-No. C'8. [ Bbcobd
Fatz Bakhsh and others v. Bitta and others (^), and in flan
Ohand and others v. Lhera and others (•). There is, however, it
appears to ns, no snbstantial disagreement. It was laid down in
Karam Din v. Sharaf Din (*), that in considering whether
collaterals had the right to restrain an aliejiation of an ocenpancy
right, evidence that such a restriction ooald be applied were the
subject matter a proprietary right instead of a right of occupancy
woald be relevant.
In Faiz Bakhsh's case it was pointed ont that oooapancy
rights are acquired in such a multitude of difEercnt ways, and
are enjoyed by such a variety of classes that it could not ho.
said correctly ah initio that the collaterals of an occupancy right-
holder must be presumed to have a right to restrain an aliena-
tion of such a holding.
In Hari Ghand's case it was laid down as follows :—
" In our opinion, therefore, if plaintiffs have shown that by
" tho custom the parties follow, proprietary rights cannot be
*' gifted, the onus lies on defendants to show that by custom
" occupancy rights can be gifted. "
Briefly the conclusions which we draw from Karam Din v.
Sharaf Din (^), Faiz Bakhsh y. Ditta (i), and Bari Chand v.
Dhera ('), are :—
When a collateral seeks to restrain an alienation of any
oocupancy right by an occupancy tenant, proof that such a
power of restriction exists in respect of proprietary rights would
be relevant.
"When such a suit is brought, the initial onus lies on tlie
plaintiff, but when ho has proved first, that he is entitled to
succeed to ocenpancy right on the death of the occupancy tenant ;
and, second that had the subject matter in question been a
proprietary right instead of a right of occupancy he could
have maintained the suit, the onus will be shifted and it will
be upon the person, who asserts that no such custom obtains
as to occupancy rights to prove that contention.
With these remarks, we remand the appeal for decision by
tho Division Bench.
(^) 115 P. R„ 1901. (•) 12 P. K., 1904.
(*)89P. R., 1898. P. B.
8IPTB. 1907. ] OIVIL JUDGMBNTS-No. 99. 46l
No. 99.
Before Mr. Justice Robertson and Mr. Justice Chevis.
, RADHO,—(Puintipf),— APPELLANT, \
Versus ^Appblutb Sidb.
HARNAMAN,—(DBfENDiNT),— RESPONDENT. \
Civil Appeal No. 1096 of 1906.
Custom^Inheriiance'^Aroraa of Amrittar City — Succession of brother
in preference to a daughter^Hindu Law^Burden of proof ,
Beld, that the defendant upon whom the onus lay had failed to estab-
lish that in matters of saooession the Aroras of Amritsar city were
governed by custom and not by Hindu Law, or that oollaterals were entitled
to succeed to the ezolnsion of a daughter.
LaehoBaiT. Asa Nand (^\ MoJcanda v. BaUi Singh (•), fitamhar v.
QaneshaBim (.»), Nihal Chand v. Premi Bat {*), Anant Ram v. Hukman
Mai C) referred to.
The burden of proof that high caste Hindus, residents of cities like
Amritsar, follow a particular custom in derogation of their personal law lie
heavily on the person making such an allegation.
Rama Nand v. Surgiani (•), Maharaj Narain v. Ba/noji ('), Day a Ram
V, Sohel Singh (*), Chandika Bakhsh v. Muna Kumoar (»), Muhammad ,
Eusain v. Sultan Alt (*o), and Ear Narain v. Deoki (^') cited.
Further appeal from the decree of A. E. Hurry ^ Esquire^ Divisicnal
JudgCf Amritsar Division, dated bth April 1906.
Turner, for appellant.
Roshan Lai, for respondent.
The judgment of the Court was delivered by
RoBEBTSON, J. — ^The parties to this suit are Aroras of the o^ i -Mr inn?
Amritsar City. The plaintifE is the daughter of one Nathu Mai, ^
Arora, and claims to succeed to his property after the death of
his widow. The defendant is a half brother of Nathu Mal» who
in in possession of Nathu Mai's property. It is a curious fact
that Nathu Mai also had two brothers of the full blood, and two
brothers of the half blood, but only one, Harbaman, of the half
brothers is a party to this suit. The position of the two full
brothers and the remainiDg half brother Sant Ram has been in
no way explained.
C) 144 p. i?., 1882. (6) /. i^ R XVI Ali., 221.
(») 85 p. R, 1884. 0)34 P. H., 1907.
") 148 P. R, 1890. (.) 110 P. R. 1906.
i*) 148 P. B., 1890, Note. (•) I. L B., XXIV AU-, 273.
() 62 P. B., 1902. (* «) 24 P. R, 1893.
(»»)fi4P.B,1903.
462 ^IVIL JUDGltBNTS-No. 99. [ RicoEO
The Aroras claim to be, and are admittedly, high caste
Hindus. Probably it wonld be a safe description to say that
they are high caste without being very high caste. Bat it is
fnlly admitted, nay, claimed by both parties that the Aroras are
governed by Hindn Law. Snch being the case it is quite clear
that if no evidence were offered by either party, the claim most
be decreed at once, as under Hindu Law the family not being
joint a daughter excludes her father's brother. The defendants,
however, set up a custom in entire opposition to Hindu Law and
alleged the existence of a custom among the Arora<; of the
Amritsar City whereby daughters are excluded from successioD.
Now it is quite clear that the onus of proving the oxistence of
this custom lay heavily on the person or the defendant who
asserts its existence (Bama Nandy, Surgtani (*), Maharaj Narain
V. J^nq;V (*), at page 147) and what we have to see is simply
whether or not the custom set up has boon proved to obtain
among the Aroras, high caste Hindus, in an ancient city like
Amritsar, in direct contravention of the personal law of the
parties.
It has been sought to establish the custom by reference to
published rulings of this Court referring to Aroras of other
parts of country, and by oral evidence.
It cannot be accepted as an axiom that the Aroras of Amrit-
sar are bound by custom found to obtain in other partd of the
country, but rulings of this Court on the question of the custom
obtaining among Aroras in other parts may be usefully examined
and may in some cases be relevant. We will first consider
the rulings before proceeding to deal with the oral evidence.
The first case quoted is that of Mussammat Lacho Bat and
others v. Asa Nand and others (*). This was a suit by certain
collaterals, Aroras of Multan, to contest an alienation by a
widow. One of the contentions was that the plaintiff had no
locus standi in presence of a daughter and daughter's son. The
case does not help us at all, both sides alleged that they were
governed by custom and no mention was made of Hindu Law,
and all that was decided was that the position of the plaintiff
justified them in maintaining a declaratory suit. The Judges
were careful to say : ''It seems enough to decide that the
''plaintiff is not proved not to be the next reversioner, without
" attempting to decide finally whether daughters* sons are by
" 0 uetom excluded from the snccosaiou." They were aUo care-
er) I, £. JJ., XVI AH., 221. (^) 34 P. R^im.
C) 144 P. «., 1882.
8£PTB, 1907. ] OITIL JUDGMENTS— Na 99. 4g3
fal to point oat that the presence of a daaghier, who takes only
on a life tennre, even if entitled to snoceed, wonld have been no
bar to the plaintiff's suit (see pages 425, 426). The next case
is that of Mohanda v. BalU Singh (M* In that case the parties
were Aroras living in Amritsar, bat stated to be of Maltan
origin. This case also is of little use to as. The parties repre-
sented themselves as being bound by the custom of the Multan
Aroras. Neither side appear to have alleged that they were
bound by Hindu Law, and the ontis of proving that a daaghter's
son could sncceed was thrown on the daaghter's son, it being
accepted that there was a general custom to the contrary. This
judgment therefore is of little assistance to us. We next oome
to the case of Pitambar and Mussammat Qaneshi Bat v. Oanesha
Ram (*). The parties to that suit were Aroras of the Dera
Ismail Khan District.. In that oase it was held that by custom
nephews excluded daughters from inheritance. Hinda Law was
left on one side, and the effect of Lacho Bai v. Asa Nand (^),
was somewhat misquoted. But attached to that ruling ^at page
477 of the Punjab Record of 1890, is an exceedingly careful and
well reasoned Judgment No. 1422 of 1887 (Nthal Ohand v.
Ptemi Bat (*), in which it was held that there being no custom
proved to the exclusion of daughters, daughters were entitled to
sncceed, a method of viewing the question which we venture
to consider the correct one. In Anant Ram v. Eukman Mai (^),
this principle was followed. The parties to that case were
Aroras of Easur town, and the onus of proving that brothers
excluded daughters was correctly thrown apon the plaintiffs, the
brothers, who asserted it. No doubt the case of Nihal Chand v.
Premi Bai (^) just alluded to was misunderstood to be in favour
of the alleged custom whereas it is in fact against it, but the
final result was that a Division Bench found that among Aroras ^
of Kasur daughters are excluded from succession by nephews.
This case is of value to the defendants, no doubt, as Easur is in
the next district to Amritsar. It of course proceeded upon the
evidence adduced in that case and there appear to have been six
instances quoted in support of the custom set up.
It vrill be seen that of two decisions in which the investiga-
tion was approached in the manner which it should be according
to the principles of Baya Ram v. Sohel Singh (*'), Nihal Ohand
V. Premi Bad (*), was in favour of the succession of daughters,
the other Anant Ram v. HuJcman Mai (* ), was against their claim.
(») 85 P. B.y 1884. (*) 148 P. B., 1890, Note.
(•) 148 P. R., 1890. (•) 62 P. H., 1902.
(*) 144 P. R., 1882. («) 110 P. «., 1906, P. B.
464 0^1^^^ judgments-No. 99. [ rmqbd
The other ralings are of mnoh lees valae, m it was
either assumed that custom of some kind must obtain, or, as in
Lacho Bat 7. Asa Nand (1), this point was not really deoided.
On the other hand Mr. Turner quoted Mido v. Phvlo Missar (»),
Ami Ohand v. Ohasita Mai (»), and Lahhmt Das v. Eishen
Ohand (*), out of numerous rulings referring to high oaste
Hindus to show that among saoh high caste Uindas of cities
daughters succeed in preference to collaterals, as of course they
would among any really high caste Hindas under Hindu Law.
fioth parties to this suit are Aroras and claim to be high oaste
Hindus under Hindu Law in general, otherwise it might possibly
be said that they are not really of sufficiently high caste to follow
Hindu Law in the matter of daaghters' succession. Wo now
come to the direct evidence put forward by the defendant
in support of the custom put forward by him. He has produced
a number of Arora witnesses to say that among Aroras of
Amritsar collaterals exclude daughters, but many of these say
also that in matters of inheritance the Aroras are bound by
Hindu Law of inheritance. Of all the instances g^ven by them
only three at most are in favour of daughters' exclusion by
collaterals. In all the other cases there were members of a joint
Hindu family who took by survivorship.
We will proceed to ex h mine these three instances.
In the case cited by Jasvi^ant Singh, D. W. 10, a daughter
does appesr to have been excluded from succession by collaterals.
In a case quoted by Hazara Singh, a little girl aged 10 only
was excluded by collaterals. The case quoted by Ealu Singh,
D. W. 21, is the strongest in defendant's favour. He says that
his own wife was deprived of her father's property by the
collaterals, and that it was given up on demand without a suit.
This concludes all the evidence in favour of the exclusion of
daughters by collar rals. No judicial decision among Aroras of
Amritsar were puf forward. It was, however, contended that
no evidence had been given for the defence to which it is replied
that the onus lay on the defendant and he clearly failed to dis-
charge it, so that it was unnecessary to call any evidence. No
doubt this is true, but cases in which daughters had succeeded
in the ordinary oonrse under Hindn Law would have been in
point.
Four cases were alluded to by Mr. burner. In one relating
to a claim for a s accession certificate Miscellaneous Appeal
(>)144 P. /?., 1882. (•) 148 P. B., 1882.
(•) 108 P. B., 1888. (*) 9 P.B., I88f.
SfPTft. 19)7. 1 0I7IG JODa&fB>rTi--Efj. 99. 455
CiTil No. 51 of 1890, Diyisional Jadge, Amritsar, do final deoision
w<ie oome to, bu^ a certifi'iate was granted to the daaghter, and
B8 nothing has been shown t J the contrary, she probably got
the property eventually.
In another case Civil Appeal No. 587 of 1895, Divisional
Judge, Amritsar, it was held not to be proved that a daughter do^
not sQoceed to self-acqaired property among Aroras of Amritsar.
Copies of the judgments in these cases were tendered in this
Court for the first time. It may therefore be said that th ere is
no evidence by way of local judicial decision upon the record.
Mr. Turner mentioned a more recent case in Amritsar in which
the District Judge had held that no custom excluding da nghters
had been established, but of this we can take notice.
The position therefore stands thus, the parties are, as both
sides assert, high caste Hindus. That being so, and they being
residents of a large city, it clearly lies heavily upon the party
asserting the existence of a custom which contr^iveues their
personal law to prove it. Ha) the defendant suooeeded in doing
soP
In considering the points we wirth to bear in mind certain
observations in previous rulings connected with proof of custom.
In Ohandiha Bakhsh v. Muna Kunwar and others (* ), their
lordships of the Privy Counoil'remark :—
'* The result is that in support of the alleged custom four
'* instances at most can be adduced, and those of a comparatively
'' modern date, and that there is no other evidence. It is obvious
'^ that a family custom in derogation of the ordinary law cannot
'* be supported on so slender a foundation."
The observations in Muhammad Htusain v. Sultan AU (')
at pa^e 209 are too long to qaote but are much in point in' regard
to the question before us.
(I) In Ear Narain and others v. Mussatmnat Deoki and others^ (*),
leamed Judees (Roe and Frizelle) say : ** There is no doubt
'* a general tendency of the stronger to override the weak, and
'* raany instances may occur of the males of a family depriving
" females of right to which the latter are legally entitled. Such
" instances may be followed so generally as to establish a custom
" even though the origin of the custom was usurpation, but the
" Courts are bound to carefully watch over the rights of the
(1) i. L. B., XXIF All, 278. (•) M P. R., 1908.
(»)24P.B.,1898.
46^ OI^tL jaDaBCS!7T3-No. 100. [ REOoftb
*' weaker party and to ref ase to hold that they have ceased to
'* exist anless a oaatom against them is m3st clearly established."
With these yiews we oabirely ooacar aad we shoald wish to
have them weicfhed and followed by all Courts in this Province.
Applying the principles indicated above can it be held that
the defendant has proved the custom set up by him in derogation
of the Hindu Law which is the personal law of the parties ? We
do not think it can.
We accordingly accept the appeal and remand the case br
decision on the remaining points under Section 562, Civil
Procedure Code. Stamp on appeal and cross-objections to be
refunded. Costs to be costs in the cause.
Appeal allowed.
No. 100.
Before Mr. Justice Bobertson and Mr. Justice Kensington.
iMUL RAJ,— (PLAnrrifF),— APPELLANT,
Versus
LADHA MAL,—(DBFBiiDANT),— RESPONDENT.
Civil Appeal No. 1105 of 1906.
Arbitration^ Aujard^Order refusing to file private awards AppealahiUty
of the order— Oivtl Procedure Code, 1882, Section 526.
fl«W, that an appeal lies from an order under Section 526 of the Code
of Civil Procedure, refusing to file an award made between the partiM
without the intervention of a Court.
Further appeal from the decree of Shaikh Asghar AU, Additional
Divisional Judge, Sialkot Division, dated ISth July 1906.
Ishvrar Das, for appellant.
Sheo Narain, for respondent.
The judgment of the Court was delivered by
6th May 1907. Robertson, J.— -The question before us is whether or not an
appeal lies from an order under Section 526, Civil Procedure
Code, refusing to file an award of arbitrators made out of Court
The learned Divisional Judge, following the Allahabad ruliog
in Katik Earn v. Bahu Lai ('), has decided that no appeal lies. As
pointed out, however, by a Division Bench of this Court in Civil
(»)/. L.B..XJrF/4W.,206.
SiPTB. 1907. ] OiyiL JUDGMBNTS-No. 101. 467
Appeal No. 862 of 1906 tTie contrary view bas been taken in by
9t Irast two otber Higb Oonrts, t.e., by Madras in Fonnummi
Mudali V. Mandi Smtdara Mvdali (0» ^nd Thtruvengada-
thiengar v. Vaidinatha Ayyar{*\ and by Calcutta in Muhammad
Wahtd'ud-din v. Bakiman ('), and Janokey Nath Ouha v. Brojo
Lai Chha (*), and by this Con rt in Jhangi Bam v. Budho Bat (*).
Tbe mling Jast qnoted hns bren followed in varions nnpub-
liflhed jadgments (see Civil Appeal No. 989 of 1903, decided 8tb
April 1905 and No. 1298 of 1906 decided 19tb March 1907, and
is supported by the remarks of their Lordships of tbe Privy
Council on page 99 of Ohtdam Jtlani v. Muhammad Hussnin (').
The point has also not been touched in the recent Full Bench
decision of this Conrt in Baaheshar Lai v. Natha Singh C)
dealing with the right of appeal where an order to file an award
has been given under Section 526, Civil Procedure Code. As
far as this Court is concerned therefore we are unable to follow
the Allahabad rulings in Katii Bam v. Bahu Lai and Basant
Lai V. Kunji Lai, and we hold that in this case an appeal does lie.
Tbe appeal is accepted and the case remanded to the Court
of the learned Divisional Judge under Section 562, Civil Proce-
dure Code, for decision upon the merit«. Stamp on appeal to be
refunded. Costs to be costa in the cause.
Appeal aUowed,
No. 101.
Before Mr, Justice Kensington and Mr, Justice Lai Chand.
MAHM U D,—(PLATimir»),— APPELLANT,
Versus
NUR AHMAD AND ANOTHER,— (Dbpbndants).— I Appbllati Sidi
RESPONDENTS.
Civil Appeal No. 66 of 1907.
Oustom — Pre-emption — Sale of agricultural land to an agriculturist— Suit
by a member of the alienors' tribe ^Superior right— Pwnjab Preemption Act,
1905, SeeUon 11.
Held, that by virtue of Section 11 of the Punjab Pre-emption Act, 1905,
a member of the alienors* tribe has a preferential right of pre-emption in
respect to a sale of agricaltoral land by a member of an agricultural tribe
to that of a vendee who was an agricaltnrist within the meaning of Section
2 of tbe Punjab 1 and Alienation Act, 1900.
O) 1. 1. B., XXVII Mad,, 266. (♦) /. L. B., XXXIU Cole., 757.
(•) /. L, B„ XXIX Mad,, 308. (») 84 P. R., 1901, F, B,
(*) I. L. B., XXV CaJc., 757. C) 25 P. B, 1902, P. 0.
l») P. B„ 1907, P. B.
468 OIYIL JUDOMSNTS-^No. lOl. T B>ooiO
further appeal from the decree of Khan Ahdid Ohafur Khan,
Divisional Judge, Jhelum Division, dated ^th November 1906.
Fazal Ilahi, for appellant.
GarcharaD Singh, for respondente.
The judgment of the Court was delivered hy
29(A March 1907. Lai Chand, J.— TJiis was a claim for pre-emption in-
stitnted on Ist Febrnary 1906, under the Punjab Pre-
emption Act, No. II of 1906. The property sought to be
pre-empted is agricultural land, situate in mauta Dbandoli,
iahsil Kharian, District Gujrat. The plaintiff-appellant
is a Oujar and a member of an agricultural tribe iib
notified for the Gujrat District under the Punjab Alienation
of Land Act and so is the vendor. The vendee is a Kashmiri by
caste and is found to be an agriculturist within Section
2 of the Punjab Alienation of Land Act. The sale was effected
on 14th September 1905 and registered on the 23rd idem,
but, before registration, the vendee had secured a oertiBcate
on 20th September from the Collector showing that he wis
an agriculturist. It was contended before us in reply to
appeal that the vendee was a Rajput, as ho was described
in the sale deed as a Bhatti Kashmiii. But this contention
is obviously futile in the face of the description contained
in the certificate as well as in the vendee's own application
for obtaining the certificate. The description given in the
sale deed evidently means a sub-caste of Kashmiris and not of
Rajputs.
The claim for pre-etnption was founded in the plaint
nr.j irly on an ©llrgHtion tI at the plfliutiff was a cojlattral
of the vendor and that was the principal issue fixed in the
case. The first Court held it proved that the plaintiff was
a collateral of the vendor and decreed the suit on payment
of Rs. 414, which the Court held to be the fair market
value of the property subject to a deduction of Re. 209 payable
to a prior mortgagee.
On appeal the Divisional Judge held that the alleged
relationship between the plaictiff and the vendor was not
proved by any satisfactory evidence, and he therefore dismissed
the suit as '* the parties being agriculturists and residente
" of the same village had equal power of purchase of the
land."
The fcuit fcr puipo^es of juiifdiction was valued in the
liower Courts at Bf. 140-10-0 beirg thiity times the Govern-
Stpnt. 1907. ] GIYIL JUDGHSNT8— Na-*101. 409
ment reTonne assessed on the land. A further appeal was
thos inadmissible, the jurisdiction value of the suit being
below Efl. 260. But it was contended for appellant on the
authority of Ohulam Ohaus v. Nabt Bakhsh (^) that the
decree directly involved a claim to property exceeding
Bs. 250 in value, i.e., the price claimed and allowed, and there-
fore a further appeal was admissible in the case. For
respondent, Nanha v. Kure (*) was relied upon to contend that the
suit for pre-emption having been dismissed by the Lower
Appellate Court, its decree did not diiectly involve a claim
or question relating to property of the valne <f over Bs. 260,
and therefore the principle laid down in the Full Bench
Judgment in Ohulam Ohatu v. Naht Bakhsh was inapplicable
It is unnecessary to decide in this case on the merits
of either contention, as we hold that the question of law
argued in appeal, vz«., that the plaintiff- appellant had a
superior right of pre-emption under the provisions of the
Pud jab Pre-emption Act is by itself suflBcient to induce
the application to be treated as an appeal, even under Section
70 (h) IV of the Punjab Courts Act. The contention put
forward for the appellant then briefly was that inasmuch
as both the vendor and the plaintiff-claimant for pre-emption
were members of an agricultural tribe, the plaintiff-appellant
was entitled to pre-emption under Section 11 of the Punjab
Pre-emption Act against the vendee, who was an agriculturist
but not a member of an agricultural tribe This contention
was not clearly entered in the grounds of appeal, but
it raised a question of law which went to the very root
of the dispute. We therefore gave leave to the appellant to
urge the contention, and on request by the counsel for the
respondent gave bim further time under Section 542, Civil
Procedure Code, for contesting tbe case on that ground.
After hearing arguments on either side and examining
in detail the provisions of the Punjab Pre-emption Act,
we are of opinion that tbe contention raised for the
appellant is sound and is bound to prevail. The right of
pre-emption is defined by Section 4 of the Act to ** mean
" the right of a person to acquire agricultural land
•• in preference to other persons." By Section 5 it is
enacted that '' a right of pre-emption shall exist in respect
«• of agricultural land and village immoveable property, but
" every such right shall be subject to all the provisions and
** limitations hereinafter in this Act contained." Section 1 1
" 0)24 P. i?., 1008, /.B. (•) 8 P. B., 1896.
470 CIVIL JDDGMBNTS— No. 101. [ Rwow
prescribes that " no person other than a member of an
" agricultural tribe shall have a right of pre-emption in
** respect of agricultural land **, piovided that if the vendor
is not a mt mber of 8n agrirnltnral tribe, the right of pre*
emption may be exercised also by a member of the same
tribe as the vendor under certain conditions embodied in
the' proviso. Section 1*^ ordains the order in which the
right of pre-emption in respect of agricultural land shall vest
subject to the provisions of Section 1 J, and Section 14 provides
for an exercise of the right where several pre-emptors are
found by the Court to be equally entitled to the right of
pre-emption. The procedure for giving notice where agrictd-
tural land proposed to be S(»ld is subject to a right of
pre-emption is laid down in Section 16, and Section 18
empowers any person entitled to a right of a pre-emption
to bring a suit to * enforce that right when the sale lias
been completed. Finally, after directing under Section 20
that in every suit for pre-emption in respect of agricultural
land the Court shall of its own motion enquire into and
decide certain prescribed issues whether the facts involved
therein be admitted or not, it is enacted under Section 21
that if in the case of a sale of agricultural land the Conrt
finds that the plaintiff is not a member of an agricultunl
tribe and is not entitled to claim pre-emption under the
proviso to Section 11 of the Act, the Court shall dismiss
the suit. It is clear on the face of these provisions that
a right of pre-emption in respect of agricultnral land is
prescribed by the Act to exist abpolutely and is declared io
be vested primarily in members of agricultural tribes. It is
conceded in favour of persons other tban such , members
contingent only on conditions laid down in the proviso to
Section 11, and the veiy first of ihei-e conditions is that
•* if the vendor is not a member of an agricultural tribe."
As against a vendor, who is a member of an apricultnial
tribe, any person other than a member of sn pgricnltural tribe
has absolutely no right of pre-emption, be he an agriculturist
or not. The whole scheme of the Act as laid down in
the various Fections already referred to palpably aims
at limiting the right of pre-emption in favour of a mem-
ber of an agricultural tribe when the vendor is a
member of an agricultural tribe. It was contended by the
counsel for the respondent tbat a sale in favour of an agri-
cnltnrist drep net ccnliaveie tie picvisitnB tf the Fnnjob
Alienation of Lard Act, tlal tie n'gll of fietnpticD in fsTiitf
Sans. l9ar.] OtVlL JUl>GMBNTS-No. lol. 4^1.
of an owner in the village was an ancient right, that such
right was not abrogated by the Aot and he relied apon Section
12, olaaae (a) of the Ait in order to sapport his oonbantion. Bat
the whole argament ia founded on a fallacy and is not in the
least supported by the provisions of the Act under consider-
ation. It is true that the Punjab Alienation of Land Aot justi-
fied a sale in favour of an agriculturist by a member of an
agricultural tribe, and the sale therefore in the present case
by a Gujar vendor to a Kashmiri vendee, who is an agri-
culturist, is legal and valid. But a right of pre-emption is
primarily and essoatially a right of priority to buy, and such
right, under such circumstances, is conferred by law on a mem-
ber of the agricultural tribe only and not upon a mere agri-
culturist. A right of pre-emption is a legal right such as need
not be exercised at all. If therefore no suit to enforce the
right were instituted, the vendee would be bompeteut to retaia
his sale. But if a member of the agricultural tribe elects to
exercise his prior right to buy, the law says he shall be en-
titled toexeroise it. It is au entire fallacy to say that a right
of preemptioQ was vested of old in an owner of bha village, and
therefore the plaintiff is not entitled to assert the right as
against such owner. The provisions of the Act are in the first
place exhaustive and make no such exception as is contended
for. But, moreover, the old custom doubtless preferred an
owner of a village to a stranger, whj did not occupy land
in the village. This is amply borue out by the provisions
embodied in the early settlement records. But there is no
warrant for the assertion that as between owners in the village
the old custom did not prefer a member of the same tribe to
a person who was not. Whether it was or was not the case
may possibly be a debatable question, but it has now been
finally set at rest by the provisions of the Punjab Pre-emption
Act. Section 12, clause (d), relied upon in aro^ument does not
in any manner support the respondent's contention. The
word pre'emption is not used in the clause, but the context
itself is expressly rendered subject to the provision of Section
11 which, as observed already distinctly, provides that ** No
*' person other than a member of an agricultural tribe BYteAl have
** a right of pre-emption in respect of agricultural land and
*' decidedly not when the vendee is a member of an agricultural
"tribe."
It was finally suggested by the counsel for the respondent
that the point raised being a novel one and of widespread
interest, the case be referred to a Full Bench for decision. But
4?2 ^^^ JT7DGMBNT8>Na loi. ( Bieott
we do not see saffioient groands for adopting the coarse smg-
gested for oar acceptance. The qaestion argaed is doobtless
noTcl as it woald be, the Act itself under which it is raised
being a recent provision, and it no doabt inyolves a point of
general interest. Bat the matter appears to as to be apparent
on a plain reading of the Sections and obvionsly admits of
no reasonable donbt in its solation or decision. We therefore
decline to make the suggested reference and hold that the
plaintiff is entitled to a right of pre-emption in this case
against the vendee, who is an agricaltarist, bat is not a mem-
ber of an agricaltaral tribe. There were two farther conten-
tions raised by the vendee in his groands of appeal in the
Lower Appellate Court, viz,^ that plaintiff had lost his right of
pre-emption by acquiescence in the bargain of sale, and that
the appellant was in any case entitled to receive the foil amoant
entered in the sale deed, viz., Rs. 600, as it was fixed band fide,
and, moreover, repfesented the fair market value of the pro-
perty sold. As regards acquiescence we are satisfied that no
legal acquiescence is proved on the record so as to stop
plaintiff from asserting his right of pre-emption. As regards
the price to be paid, the counsel for the parties agreed to leave
the matter in our hand^ in order to avoid further delay and
OKpeiidit are, which would be caused if the case were now re-
manded to the Lower Appellate Court. After considering the
matter, we are of opinion that Bs. 5)0 is the fair market
value of the p..opertj sold and fix it aooordingly. We accept
the appeal, reverue the decree of the Lower Appellate Court,
and in modification of the decree passed by the first Court
grant a decree to plaintiff for pre-emption of the land in suit
on payment of Rs. 500, subject to a deduction of Bs. 209,
payable to the prior mortgagee, and a further deduction of
such amount as he has already deposited in Court in pursuance
of the decree passed by the first Court. The plaintifl shall,
subject to deduction as aforesaid, pay the remaining balance
into Court on or before 15th May next, but on defaolt in sadtt
payment his suit shall stand dismissed with costs. As plain-
tiff has failed on the principal groand entered in his plaint
and has succeeded on a ground which does not appear to have
been expressby urged in the Lower Courts, we direct the
parties to bear their own costs throughout.
Appeal allowed.
> AppiLun 81DI,
. ^00^. ] CIVIL JaOGMKNTS-Ko. 102. 473
No. 102.
Before Mr. Justice Chatterji, CLE., and Mr. Justice
Johnstone.
BURA MAL AND OTHERS,— (Puintiffs),— APPELLANTS,
Versus
NARAIN DAS AND OTHERS,- (Dbptodantb),^
RESPONDENTS.
CivU Appeal No. 758 of 1906.
Cuitom—Inhtritanee^Bunjahi Khatria of Rav)alpindi--R%ght of
coXXaiwfiHA to succeed in fteference to daughter's eons and grandsons^Eindu
Law^Adverte fossession^ Possession of a widow in lieu of maintenance'^
Limitation Act, 1877, Schednle II, Article 144,
Eeldj tbat the defendant upon whom the onus lay had failed to
establish that in matters of inheritance the Banjahi Ehatris of
Bawslpindi City were governed by castom and not by Hindu Law or
tbat collaterals were entitled to succeed to the exdasion of daughter's
sons and grandsons of the deceased sonless proprietor.
Seldt also, that the mere fact that a widow of a predeceased son
entitled to maintenance from the estate of her father-in-law had been
in possession of the latter*s estate for a long time would not in the absence
of an assertion of any rival rights or pretension to adverse possostflon by
her, raise tue ordinary presumption that she had been in poisession
adversely to the real heir : especially where there was evidence that she had
been in possession with the consent of the distant reversioners in lieu of
maintenance.
First appeal from the decree of W. de M. Malan, Esquire, District
Judge, Rawalpindi, dated l^th May 1906.
Dwarka Das, Ishwar Das and Sewa Ram Singb, for appel-
lants.
Pestonji Dadabhai, M. S. Bhagat and Gobind Das, for
respondents.
The judgment of the Conrt was delivered by —
JoHHOTON»,J.-At page 4 of the paper book is a pedigi«j nqfA A^l, iqa7
table, which, for the purposes of this appeal, can conveniently ^^
be abridged thas —
WA8AKHI.
I
Ti«ty»8^- Fonrotherlons.
Defendants 1 to 1).
r \ ^>i
Ifnssammat Sondro Mussammat Bishn Devi 8ant Bam (mur^^
(married to Kahn Singh). (married BodhraJ). Mussamm^^hi
I . and died).
Plaintiffs 2 to 8 Bakhshi Bnra Mai, Mussammit BhanI
(soot and sons' sons). fplaintifl 1. | '
Defendants 17 and 18.
474 ^^^^^ JUDGMEKT8— Ko. 102. [ Bboou)
The property in suit, houses and shops in Bewalpindi
City, were owned by Tirath Singh, a Bnnjahi Khatri, who
^ died about 1869. At that time Sant Bam, his sod, was
alr^kdy dead. His widow Snkhi than held the propntj*
in what capacity is one of the chief issues in the case. She
died in 1903, whereupon defendants took possession and
between that time and date of suit recovered rents which pkia-
tiffs estimated roughly at Rs. 250. Plaintiffs sue for the pro-
perty and mesne pro€t8, as daughter's sons and grand-
sons, under Hindu Law. Defendants I to 11 assert the right
of collaterals to succeed in preference to daughter's aons
under the custom of the tribe^ and also plead acquiesoenee
and limitation as running from date of Tirath Singh's death
and also on the score of adverse possession by defendants
1 to 11 from that dafe. They farther claim reimbursement
of expenses on funeral ceremonies of Tirath Singh and on
the buildings. The position of defendants 17 and 18 is
peculiar. Their case is that though they are not in posses-
sion and have not yet brought a suit, they are better heiiB
than plaintiffs or than defendants 1 to 11, as being danghter's
sons of Sant Bam, son of Tirath Singh, or as being hein to
Mussammat Sukhi, who, they contend, did by long advene
possession acquire an absolute title.
The Court below found against the plaintiffs on the soore
of limitation as well as of acquiescence, and also held that
a special custom had been proved favouring collaterals as
compared with daughter's sons.
The decision as to limitation was based on the firdirg
that defendants 1 to 11 had *' virtually " adverse possession
against plaintiffs from the date of Tirath Singh's death, thoogfa
their actual possession was not found. These findings were
sufficient for the decision of the case, ard therefore no finding
was definitely arrived at regarding the pleas of defendant
17 and 18.
Plaintiffs have now appealed here and we have heard
lengthy and elaborate arguments. The first eight grounds
of appeal relate to the matter of limitation, the ninth ground
denounces the asserted special custom in preference of ooUaterals,
the tenth combats the lower Court's view that Tirath Singh and
his brothers held the family property jointly, the eleventh
denies acquiescence and the last repeats the daim of rent.
There is not a word about defendants 17 and 18, and it is not
asked that the issue (9) between them and plaintift be
decided.
Octtt. 1907. ] OlTtL JtJDGMBlNTS-No. lOl 475
To clear the groand I will deal first briefly with the
eleventh groand. It seems to me absard to assert that, it
time was not raoning against plaintiffs in Mnssammat
Sakhi's life-time, the mere fact that plaintiffs took no steps
till after her death can possibly prove acqaiescenoe in
defendants 1 to ll's claim to succeed after her. On the
other hand, if time did mn against plaintifEs from Tirath
Singh's death, or even from 1874, when defendants 1 to 11
sued Mnssammat Sukhi t) re^tra'n her from alienating the
property, then th) sait is abanitnbly barred by time and
no qaestJoi of a'jqai^scanoa arise?. In 1874 Mnssammat
Sakhi had made no alienation? in fact, and the snit was
for au injancfcioa against hdv ma,kin^ any. This prayer W8W
refusal, bit thi Ojirt daalarjd tha,fc the thei plaintiffs were
to sux53ed aft5r Ma^s\mnat Sakhi'?, de^th. Saoh a suit was en-
tirely opt'onal. Present plaintiffs, wh> Wira mt parties, were
not boaad to take any notioa of it or to rush into Court
unless they pleased. I would find in favour of plaintifb on
this point.
Turning next to the tenth ground I remark that defea d«
ants 1 to II benefit »by the Lower Court's deoision on the
point, inasmuch as, if Tirath Singh and his broth ers con-
stituted a joint Hindu family and the property in suit was
part of the joint estate, those defendants would take by
survivorship. No other view is possible than that the bro-
thers were separate, two of the defendants, Narain Das and
Hari Bam, when, examined as witnesses for plaintiffs, admit
this to have been the case, as also do two of defendant's
witnesses Ganesha and Chaudhri Qanga Elam. There is not
a particle of evidence to the contrary, and I would therefore
overrule the Lower Court's finding on the point.
We come next to the question of limitation* I think it
may ba taken as clear without lengthy disoussion (a) that
after the death of Tirath Singh, Mnssammat Sukhi and not
defendants 1 to 11 had actual possession, (6) that the lady
was not entitled to possession as of right, but was certainly
entitled to maintenance from the estate of her father-in-law.
As regards (a) I need only note that defendants 1 to 11
virtually admit that she collected and enjoyed the rents ,
and that her possession is admitted by more than one of their
own witnesses, e. g., Ganga Ram (No, 3), Tara Chand (No, 6),
Gaoeeha (No. 6), who says she was malik, Sawan Mai,
(No. 7), SaWb Mai (No. 8) and others. Again, the value
47^ OIVIL JUDGMENTS— No. 103. [ Aaoofto
of the suit of 1874 shows she was then admittedly Id poesession.
There is no real dispute as to the oorrectness of proposition (6) ;
the law is quite clear, and of course such Khatris as these are
presumed to follow Hindu Law of the Mitaksbara SohooL
I will next take up, in conneotion with the question of time-
bar, the pretension of the plaintiffs to take advantage of Article
141, Schedule II, Limitation Act, 1877, by persaading the Courts
to recognise ^^&iai7 Mnssamm^kt Sundro, their mother and
grandmother, yhb alive until 1895, that they had no daim
during her life-time acd that they have sued within 12
years of her death and so within time. This contention
was never put forward daring the recording of the pleadiogs
nor was ary evidence tendered regarding it until after pliao-
tiffs formally closed their case on 4th April 1906. On that
day 27th April was fixed for filing of written arguments,
and it was in their written arguments then put in that the
Court first heard of the new contention. Ou 16th May when
it came to write its judgment, it noticed, for the first time,
that in support of the contentioa an extract from a death
register had been put on the file, whereupon the Court, in
my opinion qaite rightly, refused to consider the oontentioo
or to allow the extract to remain on the file. The reasons
why the court could hardly have acted otherwise are fairly
obvious. Defendants do not admit the genuineness of the extract
or that it refers to this same Mnssammat Suodro, and there-
fore clearly the assertion of the death of the lady io
1895 could not be deemed proved without regular enquiry
into defendants' objections to the extract, and plaintifis
had no right whatever, legal or mbral, to a further enquiry at
that stage of the case. I would hold, therefore, that plaintiffs
cannot be allowed to plead Artide 141, and that, even if they are
allowed as a matter of form to plead it, they have certainly not
proved the death of Mnssammat Sundro in 1895.
The next point is the nature of Mnssammat Sukhi's
poesession. I have already recorded my opinion that she held
not as of right, but in lieu of maintenance, that is, she was
neither heiress entitled to a fall estate nor even a widow
entitled to hold for life. In the proceedings of 1874, rightly
considered she never assei ted her own heirship, nor did she
arrogate to herself the position of a trespasser. This fally
distinguishes the present case from Itam Narain v. Maharaj
Naratn (^) relied upon by Mr. Pestonji. In that case the widow
expressly repudiated the $oUdUant adopted son . and held
(') 8 P. B.,1904.
OcTB. 1907. ] oiviL jaoaMJSNts— No. loa. 47f
. . ' I ■ I I pi
against him. The property, at least in those early days,
yielded not more thau enough for her reasonable- mainten-
aooe, and, in my opiaion, we cannot fairly say that she held
advenely to the next heirs whoever they might be when
she henelf did not clearly take np this attitnde. The oon*
tsDtion of defendants 1 to 11 that the proceedings of 1874 shew
that, though she held by arrangement with them, she held
adversely to plaintiffs, does not commend itself to me. My view
is that when in 1874 she took np the position of holding for life
in lien of maintenance, she held this position not only in
reference to defendants 1 to 11 bnt in reference to all per-
sons who might be fonnd to be the real heir^ of Tirath
Singh, c/. Muhammad Bin v. Fatteh Muhammad (^), Plain-
tifEs content with this arrangement of the matter could safely
await her death. I am nnable to assent to Mr. Pestonii's
proposition, based on 8ona$undara Muiali v. Kulandaiveul
Ptllai (*) that the decree of 1874 makes the question of the
heirship of defendants 1 to 11 rw judicata against plain-
tiffs.
Anotlier way of looking at the matter is this. Hindns
in the Punjab, though they may follow their personal law,
do not always follow in every particular the doctrines of the
Mitakshara. Without deserting Hindu Law a tribe may in-
troduce particular modi6cations, Sohan Singh v. Biwan Ohand (>);
and it is jnst possible that this tribe may have adopted
a variation under which the widow of a pre-deceased son
takes the same widow's estate which she would have taken
had her husband survived his father. If this is what has
happened, no argument is required to support the proposi-
tion that time only began to run against pUintiffs when
Muasammat Sakhi died.
The suit, then, is not time-barred. Adverse possession has
not been held *• / v -i before suit, nor
has plain tiffi' right (if any) beea eshiugaish3d under Se^ion
28, Limitation Act.
The question of custom in this case may be stated thus : In
this tribe do near collaterals exclude daughters and daughters'
sons ? According to Hindu Law the answer would be in the
negative, and the burden of proof has been rightly laid upon
the defendants 1 to 11. Among Punjab agriculturists generally
the onus would be on the daughter's sons ; but I can find on the
record no proof that these non-landholding Khatris have adopted
(») 24 P. M., me. (•) I. L. B., XXVlll Mad^ 457,
(•) 178 P. 1.^,1905.
478 ^^^ JUDGlf BNTS-No. lOd. [ RmotmB
agricultural onsiom as a whole. No doabt here and there Bedi
Khatrifl, who are said to be a eection of the Bnnjahis, haTO
beoome agricultarists and follow Jat oostom ; bat there is no
ground for holding that the Banjahi Khatris of Rawalpindi
City have gone that way. Therefore we have to see whether a
special custom in favour of collaterals as against daughter's son
has been established.
The District Judge has not discussed the instances in
detail. Indeed, in reference to practically all the issues in
the case he has referred generally to the written arguments
put in by the parties, has suggested that they be read as
part of his judgment, and has stated his conclusions merely.
Such a judgment is of little or no assistance to an appellate
Oourt, and hardly seems to me to be such a judgment as the
Code oontemplates.
Defendants' iustanoea are some 22 in number. The first case
is th%t of Megh EUj's property, mentioned by Bura Mai, plaintiff,
as witness for defendants. This case is not in point, Inasmuch
as Megh Baj left a son as well as a daughter, the son died and
was succeeded by his mother, and after that the oollaterals came
in. The instance is one of collaterals v, sister-^see evidenoe
of Hari Ohand, plaintiff's witness 11, and judgment of Commis-
sioner, Rawalpindi, of 18th Jaue 1883. The second case is that
of Sham Singh's ))roperty. Bhag Singh, witness 4 for defend-
ants, represents it as a case of collateral against daugh ters ;
but their witness No. 16 and also plaintiffs' witnes No. 14 shew
that Sham Singh's son survived him and took the estate. The
third case that of Badh Singh's property, mentioned by Tara
Chand, witness 5 for defendants, is open to precisely the same
criticism. All these three instances may be safely ignored, as
also the fourth case, Makhan Singh's on much the same ground.
Mr. Pestonji informs us that he does not rely upon them. The
5th instanoe (Ratna's) is criticised as a case of succession by
survivorship in a joint family of brothers to the share of a
deceased sonless brother who left a daughter, see evidence of
Sahib Mai, witness 8 for defendants. There is a conflict of
evidence here. Sahib Mai in ezamination-in-chief said separation
took place before Ratna's death. In cross-examination he
said the separation occurred two or three years after Ratna^s
death. Then 14 days later defendants called Ganga Ram
(witness 9), brother of Ratna, who said he and Ratna lived
separately and was sole owner of his house. Only one
brother succeeded. I do not consider this a very good instance :
there was no contest, and further Sahib Mai's contradiction is
OCTB. 1907. 3 CIVIL JUDQMBNTS-No. 1(«. 479
miBatiBfaotoiy. The next case is Lai Ohand's. Sahib Mai says the
&mi]y was joint; bat Bad hn Mai, witness 14, called at a later
date, sajs the opposite. The case is doubtful. The 7th instance,
Dani Ghand's, is not a good one. The property was a share in a
joint house, owned by him and his brother. The next case
(Man^l Singh's property) is in favour of defendants. There
was a suit and judgment of a Court dated 8th February 1889.
A widow gifted to her daughters and the collateral (Tahl Singh,
brother) of her husband sued and got the properly. The onus
may nominally have been wrongly laid, but the decision proceeded
upon positive evidence on the record. In case No. 19 (Jowala
Sahai's) the daughters were not parties t j the litigation between
the collaterals and the widow ; and further the daughters can
still sue. In Raj Kaur's case Sukh Bam, witness 10, the
oollaterals have turned out even the widow. As she is still
alivoi daughters need not sue till after her death. Further,
oases of forcible seizure are not good instances of custom
—MaulaBakhsh v. Muhammad Bakhsh (^% (at p. 210). The
oross-ezamination of Gurdas Mai, witness 13 for defendants,
shews that in Dnni Ghand's case (No. 11) the daughters starting
for their husbands* homes made a voluntary renunciation. The
same witness mentions the two Ram Ghand's cases [12 (a) and
(Z»)] and the Ganesha case (13). In all three Bam Ohand was the
contesting collateral and he succeeded against daughter's sons.
In the third case he succeeded only partially upon an arbitration,
as part of the property had bet>n vnlled to the daughter's sons.
Case No. • 14 (Raja Ram's) is still open to contest, and the next • Witness Narain
case (No. 15, Jawala Singh's) is not clear. Witness 20, Rup Ghand, ^^ No. 16.
who succeeded, says the property was joint and collaterals got it*
while the cash in Jowala Singh's separate business went to the
daughter. The instance is rather against defendants. The next
two instances (16 and 17) are of Gurdaspur and admittedly not
in point ; and No. 18 (Suba Mal'p) spoken of by Ditta Mai,
witness 23, is doubtful in connection with the alleged and denied
separation between Suba Mai and his brother, witrcfB* father.
Besides these cases defendants rely upon certain judgments.
Kalu Shah and others in 1875 got a decree in a case of alienation
by their collateral's widow, the daughter's rights being pleaded
against them in vain. The daughter was not a party but
Hari Ghand, the daughter's husband, admits that the collaterals
snooeeded when the widow died. In 1886 Nihal Ghand, a
collateral of last holder of a house and 5 ianaU of land, sued
the daughter and got decree for the land only, the house having
been rebuilt by the daughter. The land was very insignificant
(0 54 P. B^ 1906.
480 ^^^^ JUDQMBNTS-No. lOB. [ Bboo&d
in area. Batan Singh's case against his brother's widow, decided
in Deoember 1866 by Assistant Commissioner, Rawalpindi, does
not help maoh. It was decided not upon instances bat upon a
dictum in the Punjab Civil Code, and the " decision was also
eosjxir^ against the daughter.
The net result of this analysis is that we have in defendants'
favour at most Mangal Singh's case (No. 8), Ram Cband's 3 cases
(Nos. 12(a), 12(6) and 13), Kalu Shah's case of 1875, and
perhaps Nihal Chand's case of 1886. This is a very slender
basis upon which to hold that these Khatris, high class town
Hindus, follow a special eastern at variance with Hindu Law
especially as in Rawalpindi District we have at least two rulings
in which Hindu Law was applied notwithstanding the Eewaj-i-
am, viz., Sohna Shah v. Dipa Shah (*) (BhabraR of Rawalpindi)
and JTar^or 6'%^ V. Mai^ar fi»w^^ (•) (Khatris of Mauza Sukho).
and even without more I would hold that the o nus on defendants
1 to 11 had not been discharged. Bat even if this were in
doubt, examination of plaintiffs' precedents would at once turn
the scale in their favour. There are a large number of cases
of gifts and wills in favour of daughters, which are not strictly
in point but which shew the desire of these Khatris when sonless
' to be succeeded by daughters. Leaving these out, we have—
♦ Witness 18, for Chaudliri Ram Singh's case *, he was a Kohli Khatri
^^dant, Ishar ^^ ^^^^^ ^^^^ ^^^ j^.^ daughters excluded his collaterals.
t Witness 20, Rup Budha Singh's case t> oi Saidpur, near Rawalpindi : one
daughter succeeded.
X Witness 28, Saut Ham's case J : daughter succeeded, was unmarried.
DittaMal. Gurdas Ram's case § : daughter and her son and husband
excluded five or six collaterals.
§ Witness I . for Sobha Ram of Bewar's case § : daughter's son's took, but
plaintiff, Jiwan Singh ^^|.j^jg g^^jj|.y^ Three more cases by same witness with scanty
details, but not contradicted or cross-examined as to details.
II Witness 2, Jodh Sobha Singh's case 11 : one daughter who has sons excluded
Singh. collaterals.
^ Witness 8, Musadda Singh's case f : daughter's son * succeeded : no
^ cross-examination.
** Witness 12, Rup Hira's case ** : daughter inherited : Qujral Khatri : no cross-
Ohand. . ^.
examination.
tt Witness 18, Nand Singh's case f\ : daughter's son excluded collaterals.
JagatSin^^.
Besides these instances plaintiffs relied upon certain jadg
ments, namely—
(1) 16 P. «., 1902, (•) n P. B^ 1888.
OoiB. 1907. ] CIVIL JUDGUBKTS— Ko. 102. 481
Jadgment of Divisional Judge, Rawalpindi, of 4th Aagoit
1892, in Mussammat Makhni v. 8ant Earn, decided in favour of a
daughter against a collateral, under Hindu Law, a Khatri
case.
7wo judgments in Brahmin cases of Rawalpindi of 1873 and
1903: these we may disregard.
Judgment of Mr. Delmerick, Extra Assistant Gommissiontr,
10th April 1867, in Bukm Singh v, Nihal i^ingh, Khatris
of Saidpur : award in favour of daughter s son ; and one or
two other less valuable oases.
Mj conclusion is that plaintiffs' rights are superior to
those of the defendants 1 to 11, and I turn to the matter
of the interest of defendants 17 and 18 in the case. The
Court below, as we have seen, has not adjudicated with regard
to them, and a decision in their favour would not give them the
property but would simply result in the dismissal of plaintiffs* suit
It seems to me most convenient to leave them out of account in
this suit, a course which will not prevent their suing for the
property themselves.
Plaintiffs claim also mesne profits, i. e., rent, while defendants
1 to 11 set off against the plaintiffs' claims sums spent by them
on the funeral expenses of Tirath Singh and Mussammat Sukhi
(Rs. 2,500) and on repairs, etc., to the buildings (Rs. 500}. The
Court below has found that the evidence on their counter-claim
produced by defendants 1 to 11 is inconclusive, and it has come to
no finding on the matter of rent. In my opinion it is so impro-
bable that defendants 1 to 11 rather than Mussammat Sukhi paid
up at Tirath Singh's funeral, and the matter is so old a one, that
we cannot safely bold that defendants spent anything out of their
own pockets. As regards repairs it is also extremely unlikely
that defendants would not call upon Mussammat Sukhi to pay up
etpeoially as the property had increased so enormously in rental
value, and there is no proof of any expenditure worth mentioning
after her death. Defendants 1 to 11 assert that they spent a con-
siderable sum on a new pakka building ; but I cannot hold this
proved.
Plaintiffs asked for Rs. 250 rent, or so much more as may
have been collected. I do not think they can be tied down to the
figure 250. They have proved prtmd facie the collection by
defendants 1 to 11 of Rs. 440-1-3, and defendants, who should
have produced accounts, have offered no rebuttal. Making the
Dfual allowance for cost of collection and for maintenance of
^^tdHingBf 1 would give plaintiffs a decree for possession of the
482
CIVIL JUDGMENTS-No. 102.
[ RscokD
property (ex parte against absent ilefeDdanis) and for Bs. 400
cash against defendants 1 to 11 (npon their making up the Conrt
fee to the proper figare), with costs in fall against defendants
1 to ] 1 in both Coarts.
29th April 1907. Chattebji, J. — 1 concur. A decree will be drawn np, accept-
ing the appeal in terms of my learned colleague's judgment.
Appeal allowed.
APPBLLiTB SiBB.
i2nd April 1907.
No. 103.
Before Mr. Justice Chatterji, C. L E., and Mr, Justice
Johnstone,
MUHAMMAD UMAR AND ANOTHER,— (Dbfbndants),—
APPELLANTS,
Versus,
ABDUL KARIM AND OTHERS,— (Plaintiffs),— RBSFON-
DENTS.
Civil Appeal No. 49 of 1907.
Cuttom— Alienation —Power of widow to make a son.in-lav) khana-
damad or to gift to ^axghter and her husband — Arains of Naraingarh, UmhaUa
District— Ancestral and acquired property-LocuB standi of reverui<m9r f»
presence of daughter.
Found, that amon^; AraiDS of NaraiDgarb in the Umballa District no
special castom has been proved whereby a widow in possession of her
deceased husband's estate for life is oompeteot, in tbe presence of the first
coasins of her late husband, to make a son-in.law a Jchanadamad or to
gift her husband's propoity to him or to her daughter.
In matters of alienation a widow in possession of self-acquired
immoveable property of her basbard is subject to tbe same restrictions as
if the property were ancestral ; and the existence of a dsoghter does not
preclude a near reversioner such as a firrt coucin frrm oontestioir an
alienation effected by such a widow.
Jvioi Y,Oahiya (*), Foda v. Bamam (■), Chiiah v. Ishar kour (»), Chimgh
Din y. Mamman {*) acd 8ant Sigh v. Jowala Singh ('), referred to.
Further appeal from the decree of 0, L. DundaSf Esquire^
Divisional Judge, Umhalla Division, dated 20th November 1906.
Mahammad Shafi, for appellants.
Dwarka Dae, for respondents.
The judgment of the Court was delivered by—
Johnstone, J. — Plaintiffs are tbe nearest male oollaterals oi
one AH Muhammad deceased, whose property is in suit. On
(^) 98 P. B., 1891.
(.)
") 18 P. I?., 1895.
(•)58P. B,1899.
(») 63 P. /?., 1895.
(•)28P.B., 1893.
OcTi. 1907. ] CIVIL JUDGMENTS- No. 108. 483
5tb Jnlj 1904, some 3 years and 10 months after the death
of AH Mahammad, his widow Massamnmt Senan, defendant 1,
ezecated in favour of her son-in-law Mahammad Umar,
defendant 2, two deed^ of cfift^one of the whole of deceased's
self*aoqnired immoveable property, and the other of one-fonrth of
his anoestral property. The snit is for a declaration that these
deeds shall not, after donor's death, affect the rights of the
phioti-fifs.
Defendants contended that the^ift«« were valid by oastom,
inasmuch as ther were made in compliance with the oral will
of the deceased Ali Mahammad and in favour of a "khanadamad.
Issuer were settled ani evidence taken and the first Court,
after a lengftby discussion, held —
(a) that the deceased did make an oral w 1 ;
(6) that that will was valid ;
(c) that defendant 2 is Jclianffiamai of d 'fecdant L ; and
(d) that an Arain widow i possession of her husband's
land can give it to a ^n -in-law in presence of near
collaterals to the extent noted below, namely,—
(t) acquired property— the whole.
(it) ancestral— one-fourth.
The learned Divisional Judge took a different line. He
utterly disbelieved the story of the will, and he found that Arain
widows cannot nlienat^ immoveable property by way of gift.
He considered the assertion of khanadamidi a mere concoction,
got up like the story of the will by the witness Kalu, Lambardar,
an enemy of plaintiffs.
Defendants have filed this further appeal and we have heard
arguments. I wll consider first the question of the oral will. The
witnesses who testify to it are Kalu, Lambardar, Hakim Ali,
Ali Bikhsh and Ilahi Bakhsh. The first three say they were sent
for at the time, the fourth says he went casually about his own
business to deceased's boase. To my mind none of them is a
plainly disinterested witness, and the first, third and fourth are
plainly unfriendly to ihe plaintiffs. This throws some doubt
upon their evidence; and it is contended with force by Mr.
Dwarka Das that the absence of a writing is suspicious. It is
admitted that deceased could at least write his name, and it is
Slid that Elalu c%n read and write, and no registration of a will
is required. Mr. Shafi urges that, inasmuch as the Riwaj-i'arn
of Naraingarh tdhsil. allows wills, both written and oral,
deceased and hia friends knew that no writing was necessary ;
bat even 80| I think that in these days when land is valuable and
484
CIVIL JUDGMBNTS-No. lOS. [ taccmo
reversioners are tenacioas of their rights, a man won Id hardly,
in the presence of near reversioners, trast the interests of his
daughter to the chances of oral testimony heing believed.
Further, I do not think that the argfument of the first Oonrt
based on the peculiar nature of the disease of which A.li
Muhammad died is worth much.
But there is much more still against the factum of the will,
first, there is the long delay in acting upon it. The District
Judge's attempted explanation of this, with Mr. Shaft's improve-
ments upott it, is to my mrind quite insufficient. The idea is that
defendant 2 was only son of his fatber Usaf Ali and that it took
time to persuade the latter to let the former be a hhanadamad.
But in February 1904 Usaf Ali became by virtue of a power-of-
attorney agent for defendant 1, who even then described herself
as owner of Ali Muhammad's estate, making no mention of
defendant 2 and his status and rights. Again, when Ali
Muhammad's death was reported on same day (18th September
1900) to the Patwari no mention of the alleged oral will was
made, and mutation was effected in favour of defendant 1 as his
heiress. In fact, the oral will and the Jchanadamadi of
defendant 2 were apparently never heard of until July 1904,
when in order to bolster up the gifts they were mentioned in the
deeds. I would hold then that the oral will is not proved.
The next question is the right of the reversioners to contest
the alienation of non-ancestral property by a widow. I take this
question apart from all considerations of who the alienee itaay
be, because Mr. Shafi insists that in the case of non-ancestral
property the '' agnatic theory*' and its consequence, the right of
collaterals to control the disposition of property by the holder for
the time being, have no application. I am unable to fall in with
his view of the matter. He relies upon the passage occurring at
page 183 in Haidar Khm v. Jahan Khan (^), bsginning *' It is self-
evident," and he argues that, because the " agnatic theory" does not
apply, plaintiffs have no locus stinii at all where non-ancestral
property is concerned. But in my opinion ho overlooks the essential
disiinotion between a male proprietor under customary law and
the widow of a male proprietor. Leaving out of account for the
moment the rights of d^u^hters, th3 mile colUterals of Ali
Muhammad npoa his d^^ath became at once the owners of all his
estate, ancestral or otherwise, though their estate was postponed
and the property would not fall into possession until the widow's
death ; while in the case of a male holder his heirs have no vested
estate until be dies. The reversioner can under customary law
contest alienations by a male proprietor of ancestral estate only :
' ~^ (0.50 P. ^.,1903. ' '
OOTB. 1907. ] OIYIL JUDGHBNTS-No. 108. 4gS
that law g^yes him a sort of interest in such estate in the hands
even of a male proprietor, bat not in non-aacestral estate. The
distinction, then, is clear. Plaintiffs can sue in regard to (he non-
ancestral property in suit as well as the ancestral, beoanse they
are (leaving oat of accoant for the moment the rights of
daaghters) already the owners of all Ali Mohammad's property,
and so of coarse tbey have the right to interview if any attamp t
is made by the holder for life to waste it or make away with it.
Bat Mr. Shafi says that the actual castom of the Naraingarh
Arains allows widows to make gifts even of ancestral estate to
daughters and sons-in-law. I cannot find in the TUwaj-i^am of
the tahnls or of the other tahsils of the District of Umb vUa, or in
any Wajih-ul-ari — several of 1853 are on the record— any warrant
for this. In them I find indicatiors that male proprieton have
here and there certain powers of disposition, but there is not
a word as to widows. And, in my opinion, the instances relied
npon by the connsel do not prove his point. They are seven in
number as detailed by the District Judge. The last was a gift to
tkpichlag. It was contested and set aside, \i being Agreed by
way of compromise that upon death of widow half should go to
the pichlag and half to collaterals. In No. 6 the mutation entry
expressly says no jadcUs exist. In No. 5 we have no document*
ary proof, and the witness first stated that the reversioners
Riied and got possession, and then contradicting himself said they
failed and bought the land. Anyhow, the reversioners have the
land. No. 4 is entirely based on the hearsay evidence of one
witness ; and the same remark applies to No. 2. No. 1 is an
alienation of recent date ani may still be oontested, and so it
appears that No. 3 is the only instance worth anything at all.
To me it is qaite clear that the crediting of unusual and
extensive powers to*agricalturist widows is hardly warranted on
data such as the above; cf. Jivi v. Oahiya (^), Boda v. ffamaw(»),
Oulah V. IsTiar hoar (»), Ohiragh Din v. Marnman (♦) and
8ant Singh Y. J^wala Singh ("). and the instances of gifts by
males to daughters and Chief Conrt rulings in favour of such
gifts are wholly irrelevant.
It follows from this that the widow could alienate in
presence of plaintiffs only to some one having a better right
to inherit than the plaintiffs, or to some one else only if there was
/M98 (»)68P. /?., 1895.
' (•) 58 P. B. 1899.
486 c^viL judgments-No. 9. [ reooho
in existence some one wbose existence bars plaintiffs. In the
present case tbis can only he if—
(1) Defendant 2 is a real khanadamad, and a khanadamad
inherits to the exclnffion of npar collfiterals, or
(2) The'daaghter fhis wife) is a better heir than plaintiffs,
and her existence bars plaintiffs ; or
(3) Defendant 2, by virtne of beinj? her hnsband, has the
same rights that she wonld have, the gifts being taken as made
to her.
The first of these alternatives is easily disposed of. I agree
with the learned Divisional Jndge that the hhanadamadi of
defendant 2 heard of for the first time in Jaly 1904, is a fiction.
There is no proof bnt ^something like disproof of its existence
before the date of the deedi^. There was no anthority from the
hnsband io create it ; and thongh among A rains as a whole
daughters are no donbt a favoured class, I know of no warrant
for the contention that an Arain widow, either in Naraingarh
or anywhere else, can make a son-in-lww khanadamad in the
sense that he thereby becomos as it were a son. -
At regards points (2) and (3), the rnlings in Mussammai
Begam v. Nur Bihi (0 and Slier Muhammad v. ThuLa (*), have
been quoted as shewing that, when a widow surrenders the
estate to the next heir, remoter heirs have no locus standi tooooteet
her act. Bnt defendant is not the next heir and the rnlings
hardly apply, and the only remaining point really is whether the
the existence of the danghter bars plaintiffs* suit, which is a snit
for a declaration, not specifically against the danghter that
the gifts to defendant 2 shall, not affect pl>)inciffs* rights fiiat
death of the donor widow.
Plaintiffs are collaterals in the third degree of Ali Mnham*
mad, >.e., first coasins. The danghter is not a pkrty to this suit,
and BO no finding as to her and plaintiffs' relative rights of in-
heritance can possibly bind her. Bat the question is not only
whether, apart from the gifts, she wonld sncceed to the gifted
property on death of her mother in preference to plaintiffs, bnt
also whether she wonld sncceed, as a son woald succeed in such a
capacity as to bar plaintiffs from suing now. It seems to me
clear that she wonld succeed to the ordinary estate of a female
under customary law though perhaps if she had male issue the
property wonld devolve upon that male issue upon her death.
As a matter of fact I understand she has no male issue, so that
between plaintiffs and the property at the worst there are only
two females, the widow and the danghter, and the existence of
(0 46 P. H^ 1892. C) 8 P. £., 1889.
dcTB. ie07. ] \ CIVIL JUDGMENTS— No. iOi. 4j^f
neither prevents plaiDttffs from saiDg for the declaration prayed
for here.
Taking thin view of the matter I need not attempt to deoide
whethez among these A rains, on the death of a sonless widow
holding ancestral estate of her husband, her dangbter or ber
hnsband^B first cousins wonld take the property. I need only
decide that the gifts to defendant 2 are invalid in presence o'
plaintiffs and that the existence of the daoghter does not bar
the snit. The matter of the relative claims of plaintiffs and the
the daughter to possession on death of the widow can naost
conveniently be left for disposal then, if plaintiffs and the
daughter disagree on the point.
I wonld dismiss the appeal with costs.
Appeal cUsmisBed.
No. 104
Before Mr, Justice Chatterji^ C. I. E., and Mr. Justice
Johnstone.
IMAM DIN,- (Plaintiff), —APPELLANT, %
Versus ^AmLLiTi Sidi.
MULLAAND OTHERS,— (Defbndants),- RESPONDENTS. ^
Civil Appeal No. 1218 of 1906.
Ou9tom'~ Alienation^ Gift hy daughter's son of ancestral maternal estate
inheritsd by his mother from her Jothsr under a gift — Jats of Mathothial gAt of
mauza Kulchpur, tahsil Kharian^ Oujrat District,
Found, that among Jats of the Mathothial g6t of mausa Kalcbpar,
tahsil Kharian, in the Qnjrat Distriot, a daughter's son who had saoceeded
to the property which had heen gifted to his mother by her father is
competent by custom to gift the said property to his danghter.
Muhammad V. Hayat Bihi 0) and Samman v. Ala Bakhsh (•), referred to.
Further appeal from the decree of Khan Abdul Ohafur Khan^
Divisional Judge, Jhelum Division, dated 3rd May 1906.
Bam Bhaj Datta, for appellant.
Beeohey, for respondents.
The judgment of the Oonrt was delivered by—
JoHHSTowi, J.— In this case the pedigree table given l6th April 190?.
by the first Gonrt differs in one point from that
given by the learned Divisional Judge, and the real tHith of the
■~ (^00 P. B., 1891. " (•) 106 P. B., 1901.
-^Igg OIVIL JUDGMBNTS— No. 104. [ Rioqid
matter is not quite dear. In the former table Khana is shown u
having one son, Bakhsh, in the latter as having two sons, H&sht,
called original donor, and Bakhsh, father of Mnssammat Ahmad
Bano, donee. Further, in at least one Revenue record Haahi is
spoken of as father of the lady. For oar parpoees, however, the
matter is not important. We may take it that the fint
departure from the ordinary rule of succession among theie
Jats of the Mathothial gAt was the gift to Mussammat Ahmad
Bano of ancestral estate by her father. She was married to a
man of the Ehntrial gdt When she died, her son Mulla, defendaot
1, succeeded, and he in turn being sonless gifted the property to
his daughters, defendants 2 and 3. Plaintiff related to Bakhsh in
the fourth degree^ though they are in the seventh generation
from the common ancestor— sues to contest this gift as ultra vim.
The first Court finds that plaintiff *" meets " in the 6th
degree, which is wrong ; that in this gSt relatives so distant are
not heirs, though perhaps relations in the fourth or fifth degree
might be ; that a gift to a daughter followed by possession is
valid ; and that defendants 2 and 3 are ** resident " married
daughters of defendant 1 and so have the rights of Ithcm*
damads*
The suit being on these findings dismissed, plaintiff
appealed to the,^ Divisional Court, which held that Mossanunat
Ahmad Bano, when the gift was made to her, held with the
same rights as a khanadamadi that defendant 1 succeeded her
as full owner, and his powers of dealing with the propertj
were the same as those of any other sonless proprietor; that
by custom he could gift it to his daughters ** by asscciatiBg
" them with himself in his house and specially in his old age ;
that this power is clear from the circumstance that he alienated
other portions of the land without protest by plaintiff ; and that
the suit was rightly dismissed.
This petition by plaintiff has been admitted under Section
70 (1) (6), Punjab Courts Act, and we have heard arguments
regarding the status and powers of defendant 1, and also
regarding the nature of the connection between him and his
two daughters. The latter point I will take up now, and!haTiog
decided it, I will then state the further, points that have to be
adjudicated upon.
Defendant's case is that the daughters are "resident"
daughters, their husbands holding the position of 1chanadam(k
Plaintiff's contention is that they are ordinary married daughters
and that the case must be decided on the basis of the po^
OoTR. 1907. ] CIVIL JUDGtfENTS-No. 104. 489
ofsiioh amao as defendant 1, himself a daaghter*s son, whose
another aoqaired t he property hy ifift from her father, to make a
gift to a daughter. In my opinion defendant 2, quondam, wife of
Nek Alam, deceased, and present wife of Jivan, is a ** resident ''
daughter, whereas defendant 3 is not. Defendant 2*8 first and
second husbands are both natives of Saila, District Jhelam,
while the property is in Kalohpar, District Gajrat, where
the family resides. Nek Alam seems never to have lived at
Kalchpnr. His name never appears in the Revenue records
of Enlchpar and his children were born at Saila, where he owned
and cultivated land. Muhammad, the Imabind of defendant
3, has also lived continuously at Saila and held land there ; and
it ban safely be said that neither of these men was a hhana^
damad of defendant 1. But the case of Jivan, assuming that
lik*inadamadi is recognised, is different Though he has held
no land in Kulchpur, his five children by defend ant 2 have
been bom there in defendant I's house, and the evidence shows
that he has resided in that house fdr some years. Thus,
'^^hough defendant 2's doli did, in the first instance, leave her
father's house, and though it is not certain that upon her
second marriage sh^ began at once to reside with her father,
I am inclined to thinV, if khanadamQdt is to be recognised,
that her husband has the status of a khanadamad and she of a
** resident" daughter: cf. Muhammid v. Hayat Bibt (^) and
Bamman v. Ala Bahhah (*).
The remaining questions are
(1) Has defendant 1 the same powers, in the matter of *
dealing with ancestral estate, as an ordinary sonless
proprietor of the Mathothial got, or aro his powers
specially restricted from the circumstance that he *
inherited the property from his mother who had
received it by gift from her father P
(2) Can a sonless proprietor in that got make a gift of
ancestral estate in the preHcnce of near collaterals to a
daughter (a) who is a '' resident'* daughter, (6) who
is not a ** resident*' daughter P
I am awnre of no clear authority regardiofr the first
question applicable to any agricultural tribe in the Province.
Gifts to a daughter, where allowed, are, among Punjabi
agrienlturists, intended for the benefit of a daughter and her
male issue. Mu%ammat Ahmad Banc had a son, defendant 1,
who has no sons. In the absence of a gift by him to a
0) 109 F.B., 1891. (V10eP.iJ^X901.
4Mf OIYIA jnD01ilNn-*Mo. 104. [ BltosLik
daughter, the property wonid nndoubtedly pro to plaintiffs at
hi» death. But, taking it for the sake of argament that pne or
both sections of qaestion (2) are answered in the affirmative,
can he make a valid gift to either or both daughters ? I moeh
donbt whether he would be permitted to adopt a son not a
yakjaddi of Mussammat Ahmad Bano's father, but he can
undoubtedly alienate for ^' necessity'^ exactly as an ordinary
sonless proprietor can, and T sm on the whole inclined to rule
that he can make a daughter a ^* resident'* daughter and her
husband a Wianadamad and can gift to her, if an ordinary
sonless proprietor of the tribe can. I am led to this oonolnsion
by a consideration of the view, expressed in more than one
published judgment, that where a daughter is recognised as
heiress of a sonless mati to the exclusion of his callaterals or as
a fit donee of ancestral estate, she is virtually looked upon as a
son. I do not mean by this that she has exactly the status of a
male proprietor, but that, she having passed on the estate to a
son, that son is treated as if he had inherited through males.
In the peculiar oiroamstances of the present case the answer
to question (2) is, by no means, easy. There are two
oontradictory sets of con<)iderations, one set in favour of plaintiff
and the other set in favour of defendants. The parties are
Jats and pure agriculturists, and I think there can be no doubt
on the authorities that the general presumption for the
Province as a whole is against the validity of adoption fay an
agriculturist of a daughter's son and against gifts to daughters
and their sons in presence of near collaterals. The institution
of lAanadamadi also cannot be said to be prevalent in the
Province as a whole. Next, in this g6b we have only one
instance of these things, namely, the case of Mussammat Ahmad
Banc herself, ^* resident '* daughter of Bakhsh or Hasht and
donee of his ancestral estate. The reason of this is said to be
that this^ has a custom of its own, declared specifically in
1868 at Settlement in the shajra naaabt where we find it
recorded that the gSi does not allow gifts to danghters, and that
the instance of Mussammat Ahmad Banc should not be treated
as a precedent. Again in the Wajtb-td-arz of 1857 of this
village it is said that a father may give a portion of his estate
as dowry to a daughter, apparently even in presence of sons, and
nothing specific is said regarding gifts to daughters in presence
of callaterals only. Further, while the Biwaj-i-am of 1868,
which seems to have been little, if at all, altered in 1892 at
Settlement, in questions 10 and 13 recognises khatkaiamadi and
gifts to "resident" dsi^ghters, certain trih^„ of Jats are
6cTB 1907. ] CIVIL rat>QHlVTt--llo« 10(. , ^491
meDtiosed, bat Deither the tribe of Bakbsh nor the tribe of
defendant 1. Thos, we have in favour of plaintiff : (1) general
prefnmption for Prcviice ;(2) ab^fnce in this g6t of initincee
the other way ; (3) f te dennndation in <he skajra fiasah of 1868
of gifts even to " resident ^ daoghiers.
These oonsiderations are, bj no means, slight. Bat when
I tain to the indications in favour of defendants, 1 find them
more oogent. In the Oujrat Dipirict geneially it is well known
that daughters are looked upon with favour among the
dominant tribes of Gujars and at least the larger seotioas of
Jats such as the Varaioh git. Bakbsh 's aneestors have been
settled in Gojrat for at least 200 years (seven generations), and
the g6t is said to be a comparatively small one. Khanddamadi
is a very convenient institution, and both it and the practice of
gifts to '* resident*' daughters and their husbands are extremely
common in the district, and, on the whole, I alrtive at the
condlnsion, though not without heeitalMn, that Ibis gdt should
not be held to follow customs different from the powerful
sections of Jatb inhabiting the district. I am confirmed in this
view by the ciicumstance that*^ | defendant 1 lias, without
objection, sold two plots of land, no doubt small in area,
to individual reversioners, while Mussammat Ahmad Bano gifted
25 hanalfi 2 marUu to her oousio Ghaugatta. These things, so far
as they go, are baldly compatible with a consistent attitude
adverse to the powers of daughters and to the status of
daughters' sons as ordinary proprietors. I may also note that in
1892, when for compilation of the volume of *' Oustomary Law"
58 clans of Jats were questioned, no mention is made of the
dissent of the Mathothial git from the general rule given iu
answers 10 and 13.
I would, therefore, dismiss plaintiff's appeal, but without oosfts.
Appeal ditmitsed.
No. 105.
Before Mr, Justice Johnstone dnd ilr. Justice Rcdtigan.
BHAGIRATH AND OTHERS,— (Diibndants),— APPELLANTS,
Versus
NATH MAL,—(PujNTiw),— RESPONDENT.
Civil Appeal No. 683 of 1906.
M^rigtigs- Conditional «ol#— fbnwJwur*— Jl#jfirfd/iaii JVIi of 1806—
FoltcUtf cf %atic€ oj foreelomr§'-0hj6ction idkon forfir9t tirM on ^ppoal,
InasuitfcT posssssicm of immovable property u|ider a deed of condi-
tional sale itid to have been foreclosed under Regulation XVn of 1806 the
AppiiLiffi 8m.
402 CIt 1 L J DDGM ENT8— Ko. 105. [ Bbcobd
defendants practically adi^itted the validity of the Lotice issued under the
Regulation, their main contention being that no demand preyions to the issue
of the notice had been made. The Court having found this point against the
defence decreed the claim. On appeal the mortgagors challenged the validity
of the notice on the grounds, amongst others, that neither khatra and hhe%oai
numbers nor the principal and interest were specified in it, and that it did not
bear the proper official signature of the Judge inasmuch as Ms offidal
designation was in print instead of being in the Judge*s own hand.
Beld, that it is not essential to the validity of a notice that it ahoold
contain the khaarj and hhewat numbers or the precise amount doe on
account of principal and interest (especially where a gross amount due is
stated in addition to the expression " or the balance doe **) or tlie official
designation of the Judge in his own hand-writing under his signature when
it already existed in print at the place required.
Held, per Johnstone, J. (Rattigan, J., doubting as to this) that in the
above circumstances an appellant should not be permitted to plead the
aforesaid defects in the notice for the first time in appeal.
Lachmi v. Tota (') and Ifodho Fertad v. Qajudhar (•) referred to.
The judgment of the Gonit veas delivered by
21<^ JanV' 1907 Johkstonb, J.— This is a first appeal against the jodgmeDt of
the District Judge of Hisssr. The enit is based on a hauhHruxrfa,
dated 22nd Kovember 1895. Plaintifi claims to have become
full owner, by virtue of the deed and of the action taken by him
under Regulation XVII of 1806, on 8th May 1902. He brought
his suit in January 1906. Upon the pleadings issnes were
diawn ; and the Couit below has held as follows :<—
(a) The full mortgage-money was paid to the mort^agorB-
defendants.
(6) Defendants may have deposited Bs.500 of the loan with
mortgagee, but this does not invalidate the mortgage,
inasmuch as it does not amount as defendants contend
to a failure of part of the oonsideration.
(c) Demand by mortgagee before issue of notioe is proved.
(d) The parties being Brahmins, the Land Alienation Act
does not apply to the case.
These findings covered all the pleas of the defendants in the
Court below. They admitted receipt of the foreclosure notice
and did not say a word about any Irregularity or defect in it
Defendants mortgagors have appealed against the decree
passed by the Conrt below on the basis of the above findings.
They began by again pleading the Punjab Alienation of Land
B»U (*) 16 P. ft., 1888. (•) I. L, R.,XlOale„ni P.O.I
OcTB. 1907. ] CIVIL JUDGMENTS— No. 105. 4^3
Act, but their learned pleader expressly renouooed the plea
before ns as ansastainable.
They then (ground 3 of appeal) contended that the notice
nnder the Begolation of 1806 was defective because —
(0 area of land and khasra and khewat nambers are
entered neither in the notice nor in theftpplication for
its issoe ;
(n) the notice states that Bs. 7,876 should be paid ;
(tit) amoants of principal and interest are not specified in
the notice ;
(iv) the signature of the District Judge on the notice is
not his proper official signature, the woids *' District
Judge " being printed in vernacular below the signa-
ture instead of being in the Judge's own (land.
Next they again deny that demand was made ; and contend
that the interest is of a peoal nature. [The latter part of this
was not pressed].
Lastly they again raise the objection that Be. 500 of the
mortgage money was never paid to them.
All this is in the memorandum of appeal. In addition they
urge orally that Section 8 of the aforesaid Regulation reqniree
ihat the notice should make reference to Section 7 or it is invalid,
and this notice never mentions Section 7. And further they assert
that the copies of noticed actually received by them differ from
the notice on the file and are incorrect in certain particulars.
The first objection taken by the plaintiffs* counsel to all this
is that all pleas regarding defects in the notice and in its
pervioe should be taken to be waived in the Court below, where
receipt of notice was admitted without any comment except that
demand was not made before issue of notice.
There is no doubt that in the interests of the class for whose
protection Regulation XVII of 1806 was passed, the ordinary
rules of pleading have been by high authority somewhat departed
from. Section 146, Civil Procedure Code, sets forth the circum*
stances in which issues arise—** when a material proposition of
*' fact or law is affirmed by the one party and denied by the
" other." In ordinary circumRtances a Civil Court's duty is to
enquire into and decide the issues that arise in a case before it.
U a defendant does not raise the plea that something done by
plaintiff Wfes irregular, ordinarily the Court would not itself raise
ihe point. In an ordinary way the only exceptions are in regard
to such matters as limitation or want of jurisdiction. In the
latter oase the Court takes notice of the matter, even though not
'494 CIVIL JUDGIIBNT8-N0. 105. c idioo»D
^ . ^
pleaded, beoaose if the joiisdiotion is barred, the Court has no
power to deal with the soit at all ; aod an unpleaded queetion cf
limitation is taken notice of on somewhat similar grounds. But
hei-e plaintiff stated that he had dalj served his notiee and had
thereby gained an absolute title ; and in reply defendants
retorted. '* We have received your notice ; bat oar objeotion is
" that before notice yoo made do demand as reqoirod by Imw.**
I am very doobtfal whether any rule of pleading or of equity
after this warrants a defendant's pleading for the first time in
the Appellate Court that the notice itself contains defects, if ^e
notice is on the face of it complete.
Two rulings have been quoted by Lala Ishwar Da«, for
appellants, in suppoitof the contention that such matters ean
be raised for the first time in appeal, vtV, Lachmi v, Tota (')
and Madho Persad v. Qajudhaf (*). In the former it was held
that this Court could and nhould take up in foreclosuie cases the
question of demand prior to notices even if it had not been
mentioned below. The principle laid down was that the pro-
visions of the Regulation are not merely directory but imperative.
"It would appear, therefore," the learned Judges remarked,
" incumbent upon the morfgngee, who seeks to enforce a foffeitnre
" under the Regulation, to prove aflBrmatively that each and all
**of the prescribed conditions have been fulfilled His
" plaint should distinctly state not only that the year ol grace
" had expired but that the procedure prescribed by law, both
*' preparatory to and in connection with the notice of foreclosnre,
•* had been duly observed.^
In Madho Persad's case the mortgagor had in the first ConH
rested his case solely on the absence of consideration of the
mortgage and had admitted receipt of notice of foreclosure, no
issue as to validity of notice being drawn. Ob appeal to the
Judicial Commissioner of Oudh the matter of invalidity of the
foreclosure proceedings was taken up and the Court ordered
enquiry and found that the foreclosure was ineffectual owing to
iiregularities. Their Lordships in further appeal decUned to
condemn this procedure of the Judicial Commissioner and used
words, regarding the nature of the provisions of the Regulation
which'were evidently borrowed by the Judges of this Court who
decided iocfcmt v. Toto, aforesaid.
Now in the present case the plaint asserted that on sach a
day notice of foreclosure, for a period of one year, was caused
to be iPsaedbythe Court of the District Judge ; that the said
notice was duly served on 7th May 1902 ; that the file of the ("-
(I) 16 P B., 1888 (•) I. L^R., XI Oak., Ill P. 0.
OOHL 1907. ] CIVIL JUDaMBNTS-Na 105. 49 j^,
was duly ooiisigned to the Becord Boom on completion. It also
aflfierted that demands had been made before issue of notice and
had not been attended to. In my opinion these assertions cover
alia plaintiff is called apon to make in his plaint. He need
not, for instance, wade throngh hII the rulings of aathority on
defects in notice? and assert :— " The notice was signed in fall by
" theDistrint Judge and not merely initialled"; " the signature of
" the District Judge wa<9 followed by his oflScial designation " ;
and so on. In my opinion each case of this kind should be
treated equitably on its own facts. There are of course cases in
which even an Appellate Court should itself most carefully scru-
tinise the notice and the proceedings connected with it. The Privy
Coonoil ruling dis'sussed above only goes the length of saying
(a) that wbere a [jower Appellate Court has ordered a further
enquiry into pleas of irregularity of notice not put forward in
the firit Court, the Judicial Committee will not condemn and
reverse the action of the Lower Appellate Court; and (b) that the
pro?isions of the Regalation are imperative and not merely
directory. Let us see, then, what the Regulation really preacribea
in set terms. Section 8 lays it down that the mortgagee
desirous of foreclosing must ^
(a) make demand ;
(6) apply to the District Court in writing.
That the Court should then—
(c) serve the mortgagor with a copy of the application;
(d) At some time notify to himhy parwana under it« seal
and official signature thaS if he shall not redeem the
property mortgaged "in the manner provided by the
"foregoing section*' within one year from the date of
the notification, the mortgage will ba finally foreclosed
and the conditional sale will become absolate.
If it appeared to an Appellate Court that the mortgagor was
totally ignorant oftheIaw*nd had no legal advice in the first
Court and that there were obvious errors in the notice, I think it
would be its duty to take the matter up, even sue rmtu, and
certainly upon objection raised in appeal ; but here mortgagors
evidently had legal help, for they noticed the requirement of prior
demand (a) above and pleaded its absence. It seems to me in
8uoh a case a little doubtful whether thoy should be allowed to
come up to an Appelate Court with a number of technical objections
to the notice which they had not put forward in the first Court,
the notice being ou the face of it sabstantially complete aud not
mialeadin^.
496 CIVIL JUDOMBNTB-Ko. lOS. [ Bmoid
I am aware that the tendency of the Conrta which have
followed the Privy Gonncil ml log qaofed above, has beeo to taks*^
a view rather differeDt from the above, and, therefore, I will take
up the object ions to the notice now nrged, one by one, notwith-
standing my personal view as to the manner in which such oases
ahonld be dealt with.
Mortgagors denj prior demand, but, in my opinion, the
evidence on the record f ally prjvea that demand was duly made.
It is admitted that written notice of demand'reabhed at least two
mortgagors ; and I see no renson to doubt the veracity of the
three witnesses who testify to the oral demand of Mangsar, Sambat
1958, and the second oral demand of a later date ; these demands
being made of all three mortgagors together.
As to absence of mention of kfiatra and khewat nambers, I
am nnable to see anything in Section 8 to make snch mention
necessary. As to the figure Hs. 7,876 being misleadiLg, I find
the notice runs thus : " Yon are hereby informed that if within
*' a year from date on which yon i*eceive this notice yon fail to
' " pay or tender to the minor mortgagee or his legal representa-
" tive the snm of Rs. 7,876 lent to yon under the deed, or the
** balance dne, together with the interest which may be due on
*' that snm, or to deposit the said snm in Oonrt within the time
** above specified, the mortgage will be finally foroolosed,
-Ac., Ac."
Now the principal snm stated in the deed amounts to
Rs. 4,200 and with interest the total due was R<t. 7,876. The
wording? of the notice is thus not happy, bat I am unable to see
that it is really misleading. In t^e first place, the deed provides
for oompound interest, so that at the end of a year the total
aocamnlation is, as it were, principal. Again, it was not necessary
to state the amonnt precisely at all ; and, in my opinion, this
consideration, together with the fact of the addition of the words
-or the balance dae*' prevents the infelioitoos diction from
being actually misleading.
As regards the signature on the notice the objecUon is that
the District Judge has written his name " Bhai Aya Singh" bat
has not himself written the words " DistricI Judge," these words
being in print below the signature. In my opinion this is an
adequate " oflScial signature.*'
Next, as regards the objection that the notice does not say
that the property shall be redeemed in the *' manner prorided
- for by the foregoing section," my opinion is that these if(ffii
Ocifc. 1907. ] CIVIL JUDGMBNTS-No. io5. ^i^f
need not appear in the notice. They would be useless to a
mortgagor who did not have a oopy of the regulation by him ;
and when we find that the not.ica repeats all the essential
portions of section 7, I woald hold that this part of section 8
has been fnlly and most satisfactorily complied with. In the
present case this is undoubtedly what has happened, as the
above quotation from the notice shows.
Lastly it is said now, for the first time, that the notices
actually served do not agree with the District Judge's office
oopy of the notice, which is the only notice on the record, and
are defective. I can only say as to this that this Oourt should
refuse to look at documeots which were not presented to the
lower Court, unless some good reaflon for the non- presentation
is made out. No such reason is made out here.
The notice then was quite regular, and it remains only
to discu8>H the plea that out of the consideration a so m of Rs, 500
did not pass. The lower Court has, to my mind, fully disposed
of this objection: the sam named did pass, and was then
deposited with the mortgagee.
For these reasons I would dismiss the appeal with costs.
Rattigan, J. — Upon the fact of this present case I agree 23rd /ana* 1907.
entirely with my brother's conclusions. The demand was, 1
think, undoubtedly made, and I do not consider the notice
issaed to be defective in any material respect. On the contrary, I
am of opinion that the notices if they erred at all, erred in giving
the mortgagors more information than was legally necessary.
Certainly they were in no sense misleading.
The mortgagors studiously refrained from producing the
original notices in the Court below, and in consequence the
plaintiff was obliged to rely on office copies. Presumably the
latter are correct, but if they are not the mortgagors cannot
at this stage of the case ask the Court to allow them to produce
the originals in evidence. They can g^ve no explanation of the
non-production of tl^ne originals at an earlier stage, and it
would be very unfair to the plaintiff to receive further evidence
upon this point now.
I also agree that full consideration passed, and that there is
no proof that plaintiff's father was after registration paid back
the sum of Bs. 500. I see no reason to doubt the correctness of
the lower Court's finding as regards this item.
As upon the facta I held that the defendants' objection
most fail, I do not feel called upon to express any opinion as to
whetbar in cases such as this the mortgagor is entitled on appeal
49d <^^^i^ JUDGltlBNtS-No. lOa. [ Kmxmb
to raise, for the first time, objectioiiB to the validity of a notioe
iasaed nnder the Regalatioo, he having in the first Court
practically admitted the validity of saoh notioe. As at present
advised I am inolined to agree with my brother upon this point,
bat I would prefer to reserve any definite decision thereon antil
the question has actually to be determined.
The appeal is dismissed with costs.
No. 106.
Before Mr, Justice Johnstone.
RAUSHAN,— (DgPBSDANr),— PBTITIONBR ,
RinsiON SiDB. \ Versus
MAKHAN,— (PLAiNriFP),--RB^P0NDB5TT.
Civil Revision No. 372 of 1905.
Preemption — Assignment of property by vendee — Suit 6y pr#»cinp<of
against \)eaiee alone sUb*eq>keni to thi saii aisijnnint^Partiei — Pfe-emptor
bound to implead tr^ineferee or to inntitu'e fresh, suit against him^Limitation
for such action ^Limitation Act^ 1^17, Schedule II, Article 10.
Held, that where the subject matter of a pre-emption suit has been
assigned by the original vendee before the pre-emptor had instituted his suit,
the latter is not entitled to recover the property from the transferee oo
the strength of a decree he obtains against the vendee alone. Id order
to obtain the property from the transferee he is bound either to implead bh e
latter as a party to his original pre-emption suit or to institute a fresh suit
witiiin the period of limitation prescribed in Article 10 of the Second Schedule
of the Limitation Act, 1877.
Nahi Bakhsh v. Fakir Muhammad ('), Bogha Singh v. Q^rmukk
Singh (*), and Bdkim Singh v. Indar (*) referred to.
Petition for revision of the decree of A. B, Uartineau, Esquire^
Divisional Judge^ Lahore Division, dated 24iith November 1904.
Roehan Lai and Gopal Chand, for petitioner.
Ganpat Rai, for respondent.
The judgment of the learned Judge was as follows : —
SOth Octr. 1906. Johnstonb, J. — In this case, one Makhan sued Wahid, vendee,
and his vendor, for pre-emption of a certain area of land. The
sale took place on 30th January 1900, and the suit was instituted
on 28th January 1901. Before this, one Dulo had sued the same
persons for pre-emption on 19th January 1901, and obtained a
(») 25 P. B., 1903. (•) 93 P. B., 1902.
(•) 46 P. R., 1902,
i
OCTE. 1907. ] CIVIL JUOailBNTS^Na 106.
decree od 28th Jnne 1901, which he never ezecated. Makhan
got his decree on 8th April 1902. Before any snit, on 9th May
1900, mntation of a part of the land had been sanctioncid in
favonr of Dasanndhi and Ranshan on the basis of an exchange
with the vendee, notice of which had been given to the
patwari on 1 4th April 1900, the nsoal proclamation following.
Similarly, notice had been given to the patw^ of the transfer
by way of exchange of a f ortber portion of the land to Gahna by
vendee on 13th December 1900, and mutation was sanctioned
fonr days later. Farther, on 13th November 1901, in the course
of Makhan's pre-emption suit the exchanges were clearly men*
tioned ; but plaintiff did not have the transferers impleaded.
Having secured his decree, plaintifE Makhan proceeded
to execution and, of coarse, easily got possession of so much of
the land as remained in the hands of the vendees ; bat possession
of the land in the hands of the aforesaid transferers was refused
by the holders under circumstances stated at length by the
Divisional Judge. On this plaintiff brought this separate
suit agaimt vendee and transferers, and the 6ist Conrt framing
the following issues :—
I. Was the plaintiff's application for execution against
the transferers rejected and so this suit is barred P
II. Can the plaintiff object to the exchanges, seeing they
were made before institution of his pre-emption snit P
III. Does Section 13, Civil Procedure Code, bar this snit
as regards the vendee P
IV. To what relief is plaintiff entitled P
Hehi, that Section 13, Civil Procedaro Code, barred this suit
as against defendant 1 (vendee) ; that the exchanges were invalid
^as being made before expiry of the period for pre-emption ; that
thns the transfereis are mf^re trespsBFeis ; and ihat plaintiff must
have a decree for the land agairst them.
The transferers appealed to the Divifional Court, vhich held
•*(!) that a separate suit Kud net fn appeal against the order
refusing possession by execution was the proper coarse inas-
much as there had been no obstruction or resistance and so Section
331, Civil Procedure Code, had no application ; (2) that the
present suit is not one for pre-emption, inasmuch as the
plaintiff has already got his decree for pre-emption and, having
paid the price 6xed by the Coart, stands already in the shoes
of the vecdee, the proprittaij light vestirg in him as from date
of fale ; (t^) ihai tleiifcie nil tiarhfris mrde after fale are
invalid against plaintiff acd the transferers are mere trespassers.
500 OIVIL JUDGIIBNTS-Na 106. [ Rbcobd
The DiyiflioDal Judge having thus dismissed the appeal,
the transferers oame up here on the revision side under Section
70 (1) (6), Panjab Coorte Act. For them Mr. Roshan Lai
oontents himself with urging that plaintiff is entitled, as regards
this land, to sue only by way of pre-emption ; that the previous
suit in no way affeots his clients who were not parties ; that,
taken as a pre-emption suit, the present suit is out of time ;
and he relies upon the remarks in Nahi Bahhsh v. Fakir
Muhammad (0, at page 81, 2nd paragraph.
Mr. Ganpat Baifor plaintiff contends (1) that the exohaogee
were " collusive ", though he does not say thty were fictitious ;
(2) tliat the title of the vendee at time of the exchanges was a
•« defective " title, and so the transfers effected in favour of
appellants are voidable at the instance of the plaintiff, Bogha
Singh v. Gtmnuih Singh («), page 419, and Hakim Singh v.
Indar («), page 165 ; (3) that transferers are thna mere tres-
passers ; (4) that the second transfer 4n Nabi Bakhsh's case
was by way of sale, not of exchanges, and so that ruling is
inapplicable, and so forth.
After considering the arguments and the authorities, I have
no doubt that Nabi Bakhsh's case is fully in point. I hold that
plaintiff has, even as against the tranyfefers, no suit except by way
of pre cmption. Had thty been impleaded in tie pnvicns suit,
they could certainly have pet np any defences the vendee might
have set up, and plaintiff cannot by keeping them out
of that suit deprive them of the right to make these
defences. What title is it that the transferers took upon their
exch anges ? They took the same title as the vendee had— see
page 420, middle of Bogha Singh v. Ourmukh Singh («), aheady
quoted— which included the right to resist the pre-emptor's claim
on all or any appropriate grounds. Plaintiff must, even as
against the transferers, prove (or get them to admit) his suit
to be within tiae under Article 10, Schedule II, Limitation Act,
1877 ; most prove that his right of pre-emption is superior to that
of the vendee ; and so forth. Clearly then any suit against the
transferers by plaintiff most amount to a pre-emption suit. The
suit is therefore time-barred.
This shows that the transferere are not mere trespassers any
more than the vendee was and ^hat the transfers are not
voidable or void at the mere option of plaintiff, apart from
( 1-) 26 P. R., 1908. (•) 98 P. R^ 1902, F. B.
^ (»)46P.^.,1802.
Ocn. 1907. ] CIVIL JUDQMBNT8— No. 107. 501
proof as agcdnH the transfereri^ that the plaintiff's right of
pre-emption is superior to that of the vendee and is enforceahle
against him; and also that the case of Nahi B;khsh (1903) is not
distingnishahle as the plaintiff seeks to dlitingnish it. The
assertion that the exchanges were ** oollns' e " is beside the
mark. It makes no difference in the case eye if we assnme the
transfers were effected to defeat pre-emption aid, farther, there is
no evidence of " collnsion."
The fact is that plaintiff had ample opportunity to implead
the transferers before the sait was barred against them, bat he
was badly advised and now has lost his rights.
I allow the petition [and, setting aside the findings and
decree of the Ooarts below, I dismiss plaintiff's sait with costs
throaghont.
Application aUowed*
No. 107.
Before Mr. Justice Johnstone.
N IHARKU,—(PLAiiiTiPF),— PETITIONER,
^^^•^ JrhtisionSim.
MADHO AND OTHERS,— (Dbibndamts),— RESPONDENTS.
Civil Revision No. 4M of 1904.
Partnerihip-^ Assignment of his share hy a fartner" Liability of
assignee on admission for dthts owing by the firm^ Contract Act, 187S,
SeetioM 110, 251.
Held, that the assignee of a share in a partnership concern ' when
admitted into partnership by the other partners is liable for the debts owing
by the firm as originally composed, notwithstanding the iaci that the creditor
may not. have accepted the assigDmeDt or absolved the assignor from
liability.
Petition for revision of the order of Major P. S. M. BurUon^ Judge^
Small Cause Oourt, Simla, dated SOth November 1903.
Sakh Dial and Harris, for petitioner.
Oonldsbary, for respondents.
The judgment of the learned Judge was as follows : —
JoHHSTONB, J. — In this case plaintiff sned defendants 1, 2 and qq^j^ Octr. 1906
3 for Rs. 199-10-0 on the ground that he had paid, on behalf of
the firm to which defendants belonged, Rs. 192 for them to the
Patiala State, he being surety for the firm in connection with
a certain contract^ and the fiim, in the peiscn of defendaLtl,
502 CIYIL JOOGMSNTB— No. 107. [ Rwou
haying expresslj engaged in writing to recoup him for this pay-
ment. A variety of pleas were put in ; but, for the purposes of
this revision, it is enoogh to state that the Small Cause
Court dismissed the claim as sgainst defendants 2 and 3 aod
decreed it as against defendant, and that now the question for
decision really is has plaintiff a cause of action against
defeodantR 2 and 3 P
The firm consisted at first of defendant 1 and Jagadhar, and
plaintiff became surety in the -firm's contract with the Patiala
Durbar. Then Jagadhar sold his interest to defendants 2 and
3, the latter being a minor at the time. Defendant 3 accepted
the situation when he came of age on 7th November 1902 and
remained a partner. On 10th April 1903 plaintiff made two
payments to the Patiala people on account of the aforesaid
contract, fu., of Us. 105 and Us. 87, respectively. On 21st April
1903 defendant, professin^c to act for the firm of defendants 1, 2
and 3, executed a deed promising to repay with interest this
amount of Rs 192 and also any further sams plaintiff might pay
in the same way. The Court below has held, on these fac(«, that
Section 140, Indian Contract Act, applies, and that plaintiff has
a canse of action only against defendant and Jagfadhar.
Plaintiff comes up on the revision side and con);ends that
the law has been wrongly applied ; that immediately defendants
2 and 3 became paitners— or at least immediately after defendant
3 came of age and ratified the introdnct ion of himself into the
piLrtncrship defendants 2 and 3 became liable for all that Jagadhar
would have been liable for, including the re-imborsement to
plaintiff of sums paid by him under his security bond, and that the
deed of 21st April 1903 bonnd all three defendants.
In reply Mr. Qoaldsbary Foggeets coll osion between defendant
1 and plaintiff as to cxicuticn of the deed of 21st April 1903;
denies defendant I's power to bind defendants 2 and 3 by it ; points
out that this deed was Lot cue cf the conditions of the entry of
defendants 2 and 3 into the fiim, as it was executed long after
that entry, and that Section 251, Contract Act, has no application
because the execution of the deed was not a thing ** necessaiy
for or usually done ' in carrying on the business ' of such a
partnership ". He also relied on Harrison v. Delhi and London
Bank ('), the bearing of which on the present case I am unable
to see.
My view of the case is that if at the time of the execntiouof
the deed of 21st April 1903 defendants 2 and 3 were not liable
{^)LL.B.,lVAll, p. 487.
Oct*. 190». ] OlVlL JUDQJtBN*S— No. 10^ £||g
to repay to plaintiff the sum of Rs. 192 aforesaid, or any other
sams payahle by him ander his seoarity bond, then the ezecntion
of the deed wonld not -come under Section 251, Contract Act, for
that deed was executed, so far as I can see, without actual
ooDsultation with defendants 2 and 3 and without their express
consent, and it was not in the case put an act necessary for or
usually done in carrying on the business of such a oofitract. It
is not open to a partner in a firm, who is himself alone under a
certain liability to an outsider, to engage on behalf of the whole
firm that all its members shall be subject to that liability, unless
he obtains authority from his partners so to engage. Therefore
we must go bick a little, and see whether defendants 2 and 3 i
were liable independently of the deed. If they were, then
defendant 1 had power to execute the deed as we have it.
I have little doubt of defendants 2 and 3*s liability* After
7th November 1902, if not earlier, they were undoubtedly
partners, and I can seo no reason wh y they should not be held
liable exactly as Jaga^l bar would have been liable. The Court
below ha^ misunderstood Section 140, Indian Contract Act. It
is true that the Patiala Durbar refuse*! to recognise defendants
2 and 3 as contracting with it and eontinuod to look to defendan t
1 and Jagadhar for fulfilment of the contract. But it is not
right to say that therefore the Patiala Darbar '* had rights"
only against defendant 1 and Jag'idhar. It undoubtedly had
rights against defendants 2 and 3 also, though it elected not to
enforce them and n^tto absolve Jagadhar. Hence it was wrong
to hold on the strength of the section quoted — see margin — that Section 140. Where ^
the surety (plaintiff) is invested with rights only against the p^'^^^^^^de^*^'*®
two original mennbers of the firn: and not also against defendants surety upon payment
2 and 3 . . . ofaUthathethe
principal debtor is
I allow the petition and give plaintiff h'*s decree against all with aU^ the"^ rShts
3 defendants, witb costs against all 3 defendants in the first Court ^^^h the creator
and in this Court sgainst defendants 2 and 3. dpaf^^or. ^ ^"^
Application aUawed.
AnWLLkJB. SiDB.
504 OlVtL jODOMbNTS-Na 106. [ Bjkxad
i
No. 108.
Before Mr. Justice Johnstone and Mr. Justice Rattigan,
IN AY AT KHAN AND OTHERS.— (Plaihtiws),—
APPELLANTS,
Versus
SHABU AND OTHERS,— (DBf«HDi]8Ts),— BBSP0NDENTS.
Civil Appeal No. 480 of 1906-
Alienation by nude proprietor o/aneeetral land—auU by after-bom ton (/
such proprietor to recover poeeession of $uch land^Limitation^StaHing point
of— Punjab Limitation Act, 1900.
Held, that under the proYisions of the Ponjab Limitatioii Act a snit bf a
son of a male proprietor governed by the Customary Law of the Punjab to
recover possession of ancestral land alienated by such proprietor during his
life-time, must be instituted within twelve years from the date on which the
alienation was attested by the Revenue officer in the register of mutations
maintained under the Punjab Land Revenue Act, 1887, and a son of such
proprietor bom after the date of such alienation is not exempted from its
operations by Sectbn 7 of the Indian Limitation Act, 1877, and can claim no
deduction on the ground of his minority, as when once time begins to run
no subsequent disability to sue stops it.
Jowala V. Hira Singh (i) and f^anpat v. Dhani Ram (•) referred to.
Gcvinda PeUai v. Thayam Mai (*), not approved.
FwUher appeal from the decree of Khan Ahdtd Ohctfur JQUw,
Divisiimal Judge^ Jhelum Division, dated \9th February 1906.
Ja1ul-ud-diD, for appellants.
Fazl-i-HaflSain, for reflpondents.
The judgment of the Ooort was delivered by —
2&nd Jany. 1907. Johhstohb, J.— The facts and pleadings, which appear in the
jadgmeot'S of the Coarts below need not be repeated here. The
craciai facts in the case are that the gift by Nnrdad, then a
sonless Ghijar, was made in 1877 and mntation thereon was
effected in 1878 ; that for some 10 years he remained sonless, one
son being bom to him in 1887 and another in 1888, two of the
plaintiffs ; that Nnrdad died in 1903; and that the suit was
brought to recover the gifted land from the alienees in 1905.
The first Oonrt dismissed the suit. It held that plaintiffs
had 9, locus standi to sue; that the gift was a valid one by
onstom; that the snit is not barred by Section 13, Civil
Procedure Code, in oonsequence of a previous suit by Nnrdad
(») 55, P. JR., 1908. (•J76P.ll.,1906.
0)U,Jf.li./..m
Ocn. 1907. ] CIVIL JUDGMENTS— Na 108. 505
himself J that, though Dittu, one donee, has died sonlesa,
plaintiffs do not succeed to his share, which goes to the other donee
hy survivorship. The learned Divisional Judge decided
the appeal lodged &y plaintiffs against them on the two grounds
that the suit is time-barred and that Section 13, Oivil Prooe-
dure Code, fully applies.
We have heard plaintiff s' further appeal to this Court on
the point of limitation alone. Having made up our minds that
the suit has been righily dismissed on this ground, we did not
think it neoes<»ary to hear plaintiffs' counsel on any otherpointi.
The way we look at the limitation question is this : If in
1877-78 there wa^ any revewioner of Nardad's in existence
capable of objecting to the gift, then time begin to run at onoe
in favour of the donees. Plaiotiff.^ undoubtedly on this
hypothesis had a right to sue for a declaration when they came
into existence ; but time did not then be^in to run afresh for
them, nor oaa thay (in view of Sjctiia 9, Limitation Act 1877)
take advantage of Section 7 of the same Act. Again, under
that Act they had the right to sue for possession within 12 years
of the death of Nurdad, but unfortunately for them the Punjab
Limitation Act had meantime come into force, and the time,
both for doolaration and possession is 12 years from mutation, ».«.,
from 1878. Here again they are on the hires of a dilemma.
If time did not begin to rnn against them in 1878, it could
only be because there was no living reversioner in 1878 to
contest the gift, in which case plaintiffs have no locus standi
at all ; and if time did begin to run, it did not cease to run on the
births of the plaintiffs, minors though they were.
In connection with the application of the Punjab Limitation
Act we have been referred to Section 4, General Clauses Act
(Punjab), and especially to the words " unless a different inten-
tion appears. " To our minds nothing can be clearer than that
the Punjab Limitation Act was intended to apply to all oases,
falling within its purview, instituted after its coming into force.
It is hardly necessary to quote authority for the propositions
stated above ; but we may refer to the Pull Bench ruling in
Jawaia v. Hira Singh (^), and to Oanpat v. Bhani Bam (•).
On the other side we have been referred to Oavinda PiUai v.
fhayam Mai (^), where it seems to have been laid down that a
minor born after an alienation is entitled to the benefit of
Section 7, Limitation Act 1877. This is contrary to the views
(')85P.B.,1C08,I'. B. (•) 76 P. B., 1906. *
(•)Ulf.L./.,200.
^05 OIVIL JUDGHIKTS-No. 109. [ Biomd
of this Court, see Umra v. Ohvlam, Civil Appeal 122 of 1905
(Division BeDcH Case); and we are unable to reconcile tbe
ruling with the plain wording of Section 9, Limitation Act.
For these reasons we dismiss the appeal with oosts.
Appeal Ditmisted.
No 109.
Before Mr. Justice Johnstone and Mr. Justice Burry.
PATBH DIN AND OTHERS— (DBTsHDAirre)— APPELLANTS,
ApniUTi Bam, [ Versus
BALLI AND OTHERS— (PLAiwwrs)— RESPONDENTS.
Civil Appeal No. 816 of 1905.
Person carrying on hu$ine$$ for parties otU of jurisdiction^ seognitei
Agent-^Agsnt without special authority cannot sue on contract entered
into by him on behalf of his principal^^OivU Procedure Ooie, 188S,
Sections 87, 51.
Esld, that a manager of a brandi.office of an export agency carrying on
business in the name of the owners of the firm resident in England, mider fiA
instmotions of a Ohief Manager, cannot be regarded a racognized agent of the
fjpn within the meaning of Section 87 of the Code of Oiyil Procedure, and that,
In the absence of a special authority on this behalf, he cannot either subscribe
or ^rify a plaint or sue for the enforcement of a contract entered into bf
him on behalf of his principals.
Nam Narain Singh v, Baghu Nath Sahai (>), Mahabir Prasad 7. 8heK
Wahib Alam referred to.
First appeal from the decree of Lata Karm Chand, Didrid
Judges Oujra nwala^ dated 2^th March 19('6.
Shah Din, for appellants.
Ishwar Das, for respondents.
The jadgment of the Gonrt was delivered by —
7 th July 1906. HueBT, J.— The facts are given in the jadgment of ibt
District Jndge. He has somewhat inoonvenientlj disposed of
5^ separate emts in one judgment, althongh the plaintiffs were
different, and the oontraots sued on were different.
In the present case Messers. Balli Brothers have sned Fateh
Din and Mangn for Bs. 6,054-11-0 for losses on breach of oertaia
C) I. J^. B.. W, Col., 078, (•) An., W. If. (1891), iw.
Oon. 190?. ] Oinh JUDQIf BNt8-No. lOd. 5^.
agreementB to sapply 2 »0 baga of ootboi to the plaiatiffd at
Saag[>i. PUiatlffj asserted t^ati defda lints had broken their
promise and had therabj iavoWel fchsm ia a Ioh af fch) riiDii t
claimed .
Defendants raised a variety of pleas, including objections as
to the frame and legality of the snit and as to the validity and
binding force of the agreements.
Issues were raised on the contentions of the parties and the
District Judge found for the plaintifiFs on all the issues save as
to proof of actual losses incurred. He decreed the suit for one-
half the sum claimed, holding this to be a fair allowance.
Out of this judgment two appeals have arisen in connection
with the present plaintiffs' suit Plaintiffs (Messrs Balli
Brothers) appeal in Civil Appeal I9o. 483 for the full amount to
be decreed to them, ivhile defendants appeal in Civil Appeal
No. 816 and again press their former objections.
The defendants* appeal h>v9 b^an first taken up and the
preliminary qn^sbim to be considered is whether the plaint
was filed with proper authority.
There is no indication that the pldintiff:)' firm ciiusists of
QDre than the 3 partners who figure in the plaint. So the first
olanse of the first ground of appeal has no force. A stronger
point, however, is that Mr. Chronopolo was not entitled to lodge
the suit oa behalf of the pUintiffs who appear to live in London.
This objeotion was substantially raised in the lower Court by
Fateh Din, defendant, in his pleas and it can therefore be validly
pressed in the appeal. It seems to me that this objeotion must
prevail. The plaint is in the names of the 3 partners of the
firm of Messrs. Balli Brothers, through Mr. E. 0. Ohronopolo,
their agent at Lyallpur. It is signed by Mr. Chronopolo, agent
of the plaintiffs, and by a pleader for this agent .
It is verified by Mr. Chronopolo only. No power of attorney
in favour of Mr. Chronopolo has been put in, but a letter is on
the file, dated the 21st October 1902, from the agents at Karachi,
intimating that Mr. Chronopolo will take charge of the LyaUpw
Agency. This Mr. Chronopolo takes as his authority to sue and
verify plaints for the firm. Further, he asserts that he brought
the suit with the permission of the Karachi agents, obtained a
few days ere filing the suit, but he declined to produce the letter
as being privileged.
Now it is an obvious proposition that a defendant is entitled
^0 question the authority of an agent to file a suit on behalf of
603' ^^^^ Jt7DOHBNT8-No. lOD. [ Biooto
I T \ — ~
his priDOipals, as if the aothority is def ectiye he is liable to be
saed afresh at the iostaDoe of the priacipUa {Nam Narain Singh
V. Baghu Nath Sahai (^)). It is also clear that a defect of ibis
kind caDDOt beenredyas a mere irregalarity nnder Section 578
of the Civil Procedore Code, for the foundation of the suit is a
valid plaint, and if there be no valid plaint the Gonrt has no
jorisdiction and tliere is no case to be tried by it.
Under Section 51, Civil Procednre Code, the plaint is to be
signed by the plaintiff and hi^ pleader (if any) provided that
if the plaintiff is, by reason of absence, or for other good caose
nnable to sign the plaint, it may be signed by any person daly
authorised by him in this behalf. Under Section 36 of the Code,
appearances, applications, or acts may be done by the party in
person or by his recognised agent or by a pleader dnly appointed
to act on his behalf.
The recognised agents in this Province inclnde—
See Rules and (c) Tenons carrying on trade or business for and in the
SSS^wwe ^ ^^^ fkime* of parHes not resideyit mthin the local limits of the
jurisdiction of the Oourt within which the app^.arance, application
or act is made or done, in matters connected mth such trade or
business only, where no other agent is expressly authorised to moh
or do such c^ppearances, applications and acts.
(d) Persons specially authorised by parties to appear and act
on their behalf in any particular suit.
For the dafend^ncs-appellants ifc is arged that Mr. Chronopolo
cannot take shelter nnder the former of these clauses^ partly
becaase it is not really he bat the Karachi agents who carry on
the trade and business of the plaintiff s, and partly becaase
there are other agents expressly authorised in matters of Gling
suits. As regards the latter clause it is contended tliat at
most Mr. Chronopolo was authorised to institute the suit by
mere agents and not by any of the actual parties. For the
plaintiffs it is answered that the present objection was not
distinctly raised in the lower court; that it has often been held
that in this Province a plaint can be filed by any one delegated
to do so even without written authorization ; that such a defect
is not fatal and that the Karachi agents have sufficiently
authorised Mr. Chronopolo to file the suit.
J think it mast be held that Mr. Chronopolo cannot be held
included in the 2 clauses (c) and (d) quoted above. The
plaintiffs have executed a power of attorney, dated the 26th
(0 /. Xi. A, 19 Cfal., 678.
OOTB.1907. ] GnriL Jin>GMBNTB-No. 109. 50g
April 1902, Iq favoar of 4 gdntlemea of B3mbay and 4 gentlemen
of Oaloatta. It eaip)Wdrei th'^m to site, appear in all courts,
pros3ci'e s'*Ui, app itnt pleaders, sign and verify plaints* There
was further a power to appoint 2 or more substittUes and to confer
upon such substitutes the same powers or more limited powers.
Now 2 of these Bombay attorneys, by a deed of substitation,
dated 9th April 1904, nominUed 5 goatlemen of Karachi to be
their sabstitntes giving power to 2 sabstitntes (or sabstitnte
and Attorney conjointly) to execnte the powers in claases 1 — 11
and 14 and 15 of the power of Attorney referred to above.
It is clear, therefore, that 2 substitutes at Karachi have
been given power to sue and appoint pleaders and sign and
verify plaints. It is impossible to say that the a^ent expressly
authorise I referred to in cUase (c) of the rules applicable to this
Province necessarily means an agent actually present in the
locality where the contract? are made or to be carried out. The
dependence of the Lyallpur agency is cle ir from Mr. Chronopolo's
own statement tbat ha got permission to Gle this suit from the
Karachi representatives of the firm. Indeed it would be an
absurdity to suppose that the large Karachi Office should
require an elab )rate authority ii writing to act and that agents
appointed by them without a power should be free to represent
the original plaintiffs without any authorisation whatever. I
thus conclude that the Karachi substitutes were the^agents
expressly authorised to act throughout the areas of agencies
under their control and, therefore, Mr. Chronopolo cannot sue
under clause (c).
As to clause (d) it is evident that at most Mr. Chronopolo
has the concurrence of the Karachi substitutes to sue. These
substitutes are not parties but are merely themselves recognised
agents of the plaintifif^^. It has no doubt been held that in this
Province a plaintiff can verbally authorise any person to file a
plaint or act on his behalf, but there is no indication here that
the plaintiffs, who live in England, have any knowledge of this
suit or have given any special directions on the subject to any
person. I hold, therefore, that Mr. Chronopolo cannot avail
himself of clause ((2) either.
As to the objection that the pleas did not distinctly dispute
Mr. Chronopolo's status, I have already observed that the
point was substantially raised in Fateh Din's pleas. It was
there denied that he is a harkun manager for the plaintiffs.
It was questioned if the plaintiffs could sue throngh a
gl^i . OIVIL JUDGH«NT8— No. llO, t *wottF
Prinoipal Officer as if they were a Company. There is no doubt
thai the statos of Mr. Ohronopolo to sae for his prtnoipala was
taken exception to,
I haTe also f oond that the defect is not a mere irregolarity.
The qQABtioQ then remains what action should now he (lakeD.
Plaintiffs' connsel wishes, if it he needful, to be allowed to amend
the plaint or to pn)care a power from Karachi at this stage,
bnt I do not think this should be allowed. Had Mr. Ohronopolo
filed the plaint inadvertently before arrival of a power of
attorney and supplied the omission as soon as objection was
taken, an amendment would perhaps have been proper. Here
Mr. Ohronopolo has declined to produce the letter of permission
which he says was given by the Karachi agents. In other
words, he has taken no stop whatever to cure the defect, which
was pointed out by the opposite party at the earliest opportunity,
up till the present moment. In Marghuh Ahmad v. Nthf^l Akmid
(1) the Allahabad High Oourt in a somewhat similar case ordered
the rejection of the plaint. On the other hand, in Mahahir
Prasad v. Shah Wahid Alam (')the same High Oourt appears to
have merely dismissed the suit. I think, under the
oiroumstanoes of this case, the present snit sbonld be
dismissed, the recognised attorneys of the plaintiffs having in no
sense intervened in the case or applied to the lower court or to
this Oourt to proceed with the suit at their instance.
I would accordingly dismiss plaintiffs' Appeal No. 483 and
accept defendants' Appeal No. 816 and dismiss plaintiffs' suit.
Although defendants win on a technical ground, yet they
put forward their objection at the commencement of the trial,
so they must get costs in both Oourts.
No. 110.
Before Ur. Jaetice ChctUerji, G. L B , and Mr.
Justice Johnstone.
GANGA ElAM«(DirKNDAKT)— APPELLANT,
Venu9
Apfilutb Smi. j RALLA SINGH AND OTHERS— (PLiiirnFFS)—
RESPONDENTS.
Civil Appeal No. 62 of 1907.
CoMeni to action against public charities^Oourt cannot entertain suit
asking rditifs noi included in the conaeut -CivU Procedure Code, 188S,
Section 539.
Held, that the provisions of Section 539 of the Code of Oivil Procedure are
express and are to be strictly adhered to, and a Court cannot entertain an
(») AU., W. If. (1899), 56. (•) ilM., TT. IT. (1891),162.
^OT^. 1907. ] CIVIL JUDGMENTS— Na 110. igjj
action unless it is lixmted to matters included in the sanction of the
Collector.
An action for the removal of a Mahant and that tiie public be given
authority to make a new appointment cannot, therefore, be entertained where
the sanction granted was to remove the present Mahant and to appoint a new
Mahant in his place, as the object of the suit was for appointment by the
public, whereas the Collector's consent was for an appointment by the
Court.
Sajedur Raja Ohoufdhuri Y, Qowr Uohsm Das Bais^nav (*), and Bayad
Bo&mn Miyan v. OciUetor of Kaira (•), roferred to.
Further appeal from ihe decree of W. Ohevis^ Esquire^ Addtfiotial
Divisional Judge, Sialhot THvision, dated I8th December 1906.
Grey and Duni Ohand for appellant.
Beeohey for respondents.
The judgment of the Court was delivered by
JoHNSTONB, J.— In this case three peraoos, claiming to be 9th April 1907.
interested in the Hindu temple, known as the Baoli Sahib,
Sialkot, bring a snit against the Mahant Gknga Bam» askiog—
(a) that'it be declared that he is unfit for the post of
Mahant and should be dismissed ;
( 5) that " the public " be given power to appoint a new
Mahant ;
(c) that a new scheme of management be settled for
the temple.
The suit being one of the kind dealt with in Section 539
Oivil Procedure Code, private persons can sue only under certain
oondiiions as to sanction to sae. The first Court held tfaat the
conditions had been complied with, inaRmach as plaintiffs had
received saccticn from the Collector of the district. It then went
on to hold that plaintiffs were interested persons and could
sue; that defendant had been proved unfit for the post;
that the temple >ad suffered severely through his misconduct,
and upon these findings it dismissed the Mahant and declared
that it was for the public ** interested as contemplated by
Section 539 of the Civil Procedure Code " to appoint a successor,
Bubjeot to the sanction of the Collector.
The learned Divisional Judge, when both parties appealed to
him, rejected defendant's appeal and accepted plaintiffs' ; ruling
that sanction by the Oolleotor was not necessary to appointment
hy the public.
(')/. li.B.,lJiFCal.,418. (•)/. X. R, M/ Bom., 267.
^2
^
CIVIL JUDGMBNTS-No. 110. [ Smoio
DefoDdant files a farther appeal here, acd we bave heaid
argnments od two points, t;u—
(a) Whether sanotion by the Oollector to plaintiCb to
bring a snit is sufficient sanotion andw the
law;
(&) Whether, if that question be answered in the
affirmative, the suit snffioientlj conforma to the
sanction actually given.
On the first point we have heard interesting and ingenious
argnments. It is conceded that the Local Government has
empowered all Collectors in the Pan jab to exercise the ^ powers "
of the Advocate-General nnder the Section ; and pemsal of Panjab
Government Notification No. 783 A of 21st October 1885, shows
that thia is so. Bat Mr. Grey argnes with much persistence
that the '' powers " spoken of in the last paragraph of the Section
aforesaid do not inclnde the powers to authorize suits by ptivtte
persons but only the power to sue— in short, that under the
notification the Collector might sae with the previous sanotioD, in
each case, of Local Government, but could not empower other
persons to sue. We are disposed to dissent from this view ; bnt
we need not insist upon the point, inasmuch as on the second
question (b) we think Mr. Grey's client must succeed. Mr.
Grey asserts that, so far as he knows, it is only in the Panjah
that pivate persons sue under sanotion of Collector [~; but Sajednr
Bqja Ohotodhuri Y. OouT MoTiem Da9 Baxshnav (*), showa that
in Bengal at least this does happen.
It is evident to us that the Legislature intended, when it
enacted Section 589, Civil Procedure Code, to lay down strict
rules with a view to protecting trustees of institutions like the
Baoli Sahib of Sialkot from vexatious and irresponsible suits, and
dearly, in our opinion, the plaintifiE in such enits must confom
to the terms of the sanction given. We have stated above the
prayers in the plaint : and these must be compared with the
wording of the Collector's order, namely—*
" I hereby give consent to the applicants to bring a suit for
the following objects or any of tbeni :—
(1) to remove Ganga Ram, the present Mahant, and
appoint a new trustee (Mahant) ;
(2) to vest the pi*operty in the trustee and to recover sooh
property for the purpose of the trust, if it has been
improperly alienated ;
(») /.L. A, 24 CaJ., 418.
OoTB. i90r. ] OIVIL JUDGMBNTS—Na 110. 51g
(3) to seHle a soheme «for the management of the
property*
Thnff, we see that the Oollector sanotioned a rait to aPPoint
a new trostee (mahant), whereas the suit filed asks (h) that the
pnblio be given power to mnke the appointment. To our mind
this is a very real and qnite inadmissible yariation. The Oollector
contemplated appointment by the Gonrt, p1ainti£Ps ask for
appointment by the pnbUc. It is impossible to say that the
Oollector sanotioned snob a prayer as has been pat into the
plaint If close correspondence between the terms of the sanction
and the prayers in the plaint filed npon that sanction is not
insisted npon, it seems to ns that the objects of Section 539, Oivil
Frocednre Oode, wonld be fmsttated.
Section (2) of the sanction does not agree with anything in
tbe plaint, bnt perhaps the words " or any of them ** in the
sanction make this yariation immaterial. Section (3) oorresponds
with (c) in the plaint.
We do not think it is pedantic to insist that the firsfc yaria-
tion noted condemns the snit. It is not a mere yariation in
words, bnt a substantial yariation, and it is one that the plaintiffs
pressed in first appeal, and pressed snccessfnlly which shows that
they tkemselyes considered it a real and important consideration.
It is snggested that the cane was one at the worst
for amendment of the plaint, and Mr. Beechey in support
of this proposition refers ns to Sayad Hussein Miyan v.
CMector of Kaira (^) which has been also relied npon by Mr. Grey
in another connection. Mr. Beechey points ont that in these the
Oonri did not dismiss the snit, bnt merely ezclnded from the
deoree whatever was not covered by the sanction, bnt, inasmuch
as in that case the plaint did actually agree with the sanction, the
ruling does not help Mr. Beechey. In our opinion plaintiffs
in the present instance are peculiarly debarred from amending
tbeir plaint at the present stage for they resisted in appeal even
the variation of their prayer introduced into the decree by the
first Court, which brought the matter of appointment of a new
mahant more or less into line with the Oollector*s intention.
In these drcurastances we think the proper course is to
dismiss the suit, accepting the appeal and setting aside the
decrees of the Courts below. In all the circumstances we think
the parties should bear their own costs.
Appeal allowed.
(«>j;L.a,xiiJBo»^«fr,
514 oiviL judgments-No. hi. [ bioobd
No. 111.
Before Mr. Justice Johnstone and Mr. Justice Ghitty.
QIBDHAR LAL AND ANOTHER,- (PLAnmifs),—
ApPBLLiTH 8u>M. I APPELLANTS.
Versus
DEOKI NANDAN,—(Dbfbndaht),— RESPONDENT.
Civil Appeal No. 363 of 1903.
Rm judieaia^Oowrt cf jurisdiction Competent to try »uh$equent nUt^
OivU Procedure Code, 1882, Section 13.
Eeld, that for the purposes of Section 13 of the Code of Civil Procedure,
the competency of a Court to try such sabsequent suit or the suit in
which such issue has been subsequently raised as compared with another ii
not affected by the circumstance that in one case an appeal liee in the first
instance to the Divisional Court and from that Court to the Chief Court, and
in the other directly to the Chief Court, and therefore the decree in one
operates as res- judicata in the other.
Shamas Din v. Qhulam Kadir (^), Kanhaya Singh v. Detoa Singh (*)
and Narain Das v. Fai» Shah (*) distinguished.
First appeal from the decree of T. P. Ellisj Bsquite, District
Judge, Delhi, daied 2^th January 1903.
Mnbammad Shafi and Piare Lai, for appellants.
Shadi Lai and E. 0. Cbatterji, for respondent.
The judgment of the Court, so far as is material for the
purposes of this report, was delivered by
1th Novr. 1906. Johnstonb, J.— A single judgment will snflBoe for the
disposal of this appeal (363 of 1903) and of 362 of 1903, and 394
and 1050 of 1903.
The plaintifiPs Oirdhar Lai and Anandi Lai are jewellers
and gold and silver-smiths carrying on business in Delhi and
Calcutta. The defendant Deoki Nandan is a hawker of jewellery.
The first suit between the parties was one by Deoki Nandao
against Girdhar Lai for rendition of accounts. I will revert to
this later — it is only indirectly connected with the appeals now
before us. Thereafter Oirdhar Lai and his nephew, on
18th March 1901, sued Deoki Nandan for a sum of money
with interest, and (in the alternative) for an account, alleging
that for four years or so (Sambat 1951 to Sambat 1955), plainti&
had by arrangement been sending goods from Delhi to Deoki
Nandan in Calcutta for sale by him ; that on 24th March 1898
Oirdhar Lai went to Calcutta and accounts were taken ; that
(0 20 P. A, 1891, F. B. (•) 27 P. B., 1879, f . B,
Ooift. 1907. ] OIVIL JUDGif BNTS— No. 111. gig
Bs. 4,315-7-0 came out as the aam dae to plaiDtifiPs ; tbat a
farther earn of Rs. 439-8*0 became due bj Deoki Nandan, being
the sam paid by plaintiffs to redeem orDaments belonging to
plaintiffs and pledged by defendant, that ont of this a sum of
Rs. 798-3-3 had been paid by defendant, who thns owed
Rs. 3,956-11-9, pins interest. The alternative prayer for
aooonnts is inserted in case the Goart shonld hold the alleged
settlement of balance of March 1898 not proved.
ibar days later, on 22nd March 1901, Deoki Nandan
laanched a sait against Girdhar Lai alone, in which he asserted
that after Qirdhar Lai's visit to Calcutta, daring which no
balance was settled as dae, both parties travelled to Delhi ; that
at the Howrah Station Deoki Nandan became ill and so made
over a box containing goods, papers, etc., to Girdhar Lai for
oastody, and waited for the next train ; that on arrival at Delhi
Girdhar Lai refused to retarn the box. On these allegations
Deoki Naifdan claimed retarn of the goods in the box or their
valne Bs. 3,974 and retarn of the papers, or their valae Rs. 1,708
—total Rs. 5,682. The papers, he alleged, contained proof of
outstanding claims Deoki Nandan had against third parties,
some of which are said to have become now time-barred, hence
the valuation.
Deoki Nandan denied, in reply to Girdhar's claim, that he
owed anything or that any balance was arrived at in March 1898,
while Girdhar in defence against the other daim alleged that the
box of goods was handed to him as secority for his claim against
Deoki Nandan, and that he was not bonnd to return it till his
claim was settled.
The learned District Judge, disposing of both suits in a
single judgment, written nearly two years later, gave Girdhar
a decree for Rs. 506-8-0 on a scrutiny of the accoants and
evidence, and gave Deoki Nandan a decree of a peculiar and
primd fade unworkable kind, thus — Girdhar Lai, who has
admitted receipt of certain goods with the box (list D), to
retarn those goods and to restore '* the outstanding. "
Then it suggested, though this does not appear in the
decree sheet, that Deoki Nandan, having got the papers— which
apparently District Jodge means when he writes *' outstand- '^
ings "—should sue his debtors and get what he can, finally
suing Girdhar for damages on account of all lapsed out-
standings.
llie defects in this decree are obvious. What is to be done
if the goods in list D are not returned P Or if the papers are
not returned by Girdhar P
^1^ OiVIL JUDOM BNtS-Ho. ill. [ ttmB^
Pour appeals have been filed. In GKrdbar's rait we have
the croBS-appeals —
(i) No. 1060 of 1903 by Deoki Nandan, asking for cancel-
lation of the decree for Ba. 506-8-0.
(ii) No. 363 of 1903 by Girdhar, asking for his /WZ claim.
[The grounds in this appeal are confusing, ^mixing np hoik
suits.]
In Deoki Nandan's suit we have cross-appeals.
(iii) No. 394 of 1903 by Deoki Nandan, asking tar^
(a) aU the goods claimed or their value ;
(i) the cash amonnt of the outstandings z all now kst
owing to Girdhar's conduct.
(iv) No. 362 of 1903 by Girdhar, asking for—
(a) cancellation of the decree as to goods and ontstandisga
** as the transaction was a pledge by way of secnriiy;
(b) cancellation of the suggestion as to f nrther snit by
Deoki Nandan for damages.
[ As regards the articles in list D aforesaid I should note
% that it appears that Deoki Nandan has ezecnted his decree lor
the goods, and that Girdhar Lai has produced the box and
its contents which are now lying in the Conrt below.]
We have heard theae appeals exhaastively argued. Pat
briefly, the questions for this Court to decide appear to be these—
(A) Are any and, if so what, issues res judicata by reason
♦Chief Conrt Civil ^^ *^® resnlt of Deoki Nandan's suit * for rendition of accounts ?
Appeal 433 of 1901. (gj i ^^^s there any settlement of accounts in March
1898 at Calcutta which should in all the circumstances be takeo
as binding P
(B) 2. What was the meaning of the handing over of the
box at Howrah staticm to Girdlar P
(C) If there was such a settlement then as should be taken
as a basis for the decision of Girdhar's suit, what modificatiooB
of the balance should be allowed in consideration of (a) obyions
errors, (6) subfiequent transactions P
(D) If there was no such settlement as aforesaid, then
should not an account be ordered to be rendered by Deob'
Nandan in accordance with Girdhar's alternative prayer P
Taking (A) first, I find that the earlier Eoit by Deoki
Nandan was finally decided by a single Judge of this Couit
00TB. 190^. ] OVflh JUDGMtSNTB-No. 111. 5|7
(Harris, J.) on 13th February 1903. The soit was heard by a
sabordiDate Jadge of the Ist class, appealed to the DivisioDal
Court, and appealed further to the Chief Court. Under the
mles of basiness of this Court, as then in force, the case was
triable by a single Judge ; but it seems to me quite clear that PunfaboSrts Act?
a single Judge in such circumstances is the ''Chief Coort" ^^^^^^•
exactly as a Division or Full Bench is. Again, the subordinate
Judge of the Ist dass, who tried the earlier case, could also bare
tried the present cases. But it is said that Section 13, Civil
Prooedore Code, does not apply because the course of appeal is
difierent in the present cases as compared with that case : there
the appeal lay to the Diyisional Judge and fiom him to the Chief
Court, here first appeal lay to the Chief Court. The only ruling
to which our attention has been drawn and to which I need refer
here is Bhamas Din v. Ohulam Kadir (^). The point is not an
easy one, but I am disposed to distinguish that ruling. To
make the distinction quite clear I must make a long quotation
from it, as follows : —
** The primary object of the rule as to competency of juris-
*' diction would appear to be ^ avoid binding the superior Courts
** by decisions of inferior Courts, which were not and could not have
** been cufisidered on the merits by the superior Court, We think
^ that this object may be attained by holding that the true test
*' of the oocbpetency of the Court which decided the former suit
*' or issue is not merely the jurisdictional powers of the original
** Court in which the previous suit was instituted, but the
'' jurisdiction of that Court viewed in connection with the course
** of appeal allowed in that particular case, and the degree of
^ finality attaching to the decisions of each of the Courts,
'^ original and appellate, which may be called upon to exercise
'* jurisdiction in the case
*' In the present case, the Munsif who tried the first suit
** would have had jurisdiction to entertain the present suits, which,
^ as we pointed out in the referring order, are of small pecuniary
*^ value. At the same time he would not have tried the second
** suit with the same jurisdiction as the first, inasmuch as the first
" suit was a small cause, and one appeal lay to the District
Judge, whose decision was final, whereas the present suits
*' are land suits appealable in the first instance to the Divisional
^ Judge, with a possible further appeal to this Court. Under
** the above circumstances we think that we should hold, both
<' upon principle and upon authority, that the Court deciding the
0) ao P. a, 1891, /.a,
gjg Civil judgmbnts-no. ill. [ bmogkd
** first salt was oot a Conrt competent to try the sabseqaeni
^ suits withiQ the meaning of Section 18 of the Code of 1882."
Adverting especially to the two passages in this qaotation
which I have italicised I am inclined to hold that they constitatB
the criteria for decision of a point like the present, rit. (a) we
mnst not so use Section 13, Civil Procedare Code, as to bind the
snperior Ooarts by decisions of inferior Courts, which were not
and ooold not have been considered on the merits by the saperior
Coart ; and (b) a decision by an officer presiding in a Goaii
passed in the exercise of a certain jarisdiction cannot be res
judicata in a sabsequent case triable by that o$cer bat not triable
in the exercise of that same jarisdiction bat of what might be
called a saperior jurisdiction.
In the case now before as these criteria form no bar to the
use of Section 13, Civil Procedare Code, because, as regards (a),
in the earlier and in the present suits alike, there was an appeal
on facts as well as law to the Chief Court : and, as regards (6), the
subordinate Judge tried the earlier case under his ordinary
powers, and he could have tried the present cases under the same
powers. I would hold, then, that the decision of Harris, J.,
binds both the parties in this case.
What, then, did Harris, J., decide P He decided that Deoki
Nandan had not proved that he was acting otherwise than as
agent for Qirdhar Lai, that therefore he could not call upon Oirdhar
Lai to account to him, and that as a matter of fact there was
no settlement of accounts in Calcutta in 1898 between the parties.
The first pcrint here stated as decided is certainly res judicata. It
was necessary to decide it, and the final order of Harris, J.,
dimissing plaintiffs' suit was wholly based on it. On the other
hand, the decision that there had been no settlement of accounts
had no eftect upon the form or contents of the final order. It
was unnecessary for the learned Judge to have expressed aay
opinion on the subject at all. Whatever his views upon it might
have been, the final order would have been a dismissal of the
plaintiffs' suit. But, if the Judge had held Deoki Nandan
principal and Oirdhar agent, and at the same time had found that
no settlement of accounts took place, he would have been oUiged
to pass a very different final order, namely, an order for rendition
of accounts. Two Punjab rulings bearing on this question have
been quoted by Mr. Shafi— «ee Kanhaya Singh v. Dewa Singh and
Nihala (>) and Narain Das v. FaiM Shah (^), but I hardly think
( ») »7 P. «., 1879, F. B. C*) 167 ?• B^ 1889, JP. &
Con. 1907.] OinL JUBOHBNTB-Mo. 112. {^19
I need dieonsa them. I find, then, that it is res judicata that
Deoki Nandan was agent and Girdhar principal, hnt not that
there was no settleoient of aoooants ; and so I decide question (A).
NoTB.— The rest of the judgmeat is not material to the report. -Ed., P. R. i
No. 112.
Before Mr. Justice Johnstone and Mr. Justice Hurry.
UTTAM CHAND,-(Dbfindaiit),"- APPELLANT.
LAHORI MAL,—(PuDrriF?),— RESPONDENT.
Civil Appeal No. 945 of 1904.
Pre'emption—SaU of Uoo housea adjoining one another^Vendee and
fire-emptor each having jtriority over ]one] house by reason of vieinage^-^
Pre-empt or not hound to acquire the whole bargain.
Held that in a case of sale of two houses adjoining one another a vendee
whose right of pre-emption by reason of contigoity only extends to one house
cannot defeat the n3itdo3r neighbDur of the second house on the ground
that by reason of his having rights over one house superior to plainti fl he
has a right with respect to the other house equal to those of plaintiil.
A bargain of distinct properties by a person having preferential rights
only to a p3rtiou of suoh bargain do33 not give him a right of pre-emption as
regards the simultaneously purchased other portion.
In such a case the pre>emptor whose ri^ts extend over only one lot is not
boand to take over the bargain in its entirety.
Further appeal from the deeret of A, E, Martineau^ Esquire^
Divisional Judge, Lahore Division, dated 29th August 1904.
Oertel, for appellant.
Shelverton and Tirath Bam, for respondent.
The judgment of the Court was deliTered by
JoHNSTOHi, J.— Id this pre-emption case both the Oonrts be- 2ft* April 1906.
low have written detailed judgmeuts, and the facts and plead-
ings fully appear therein. The first Court held—
(a) that the custom of pre«emption did exist in the MuhaUa
Jalotian, Lahore City, in whioh the property in Snit
is situated ;
(6) that plaintiff has not proved superior vioinsge as oom-
pared with the seoond vendee, defendant 3
(e) that the sale to def an iant 3 by defendant 2 is genuine ;
{d) that plaintiff oannot cUimto pre-empt sepakrately that
one of the tw^ houses in suit whioh adj'>ins his h^use
520 ^^^^ J0DOMBNT8— Na 113. t ^
'OID
and does not adjoin defendant 3*s house ;— * — — ^
« y and 80 forth.
Thus, the first Court dismissed the suit, whereupon plaintiff
appealed to the Divisional Court, which has decreed for bim as
regards house No. 2. which is next to his owa ho lae, firing tha
market-value of it at Rupees 950, from which it dedncted
Be. 489 due to plaintifiF from the vendor as proportionate Bbaw
of mortgage-money out of Re. 700 for which sum vendor had
mortga^d hoth houses to plaintifF.
Defendant 3 having died, his son appeals to this Court
agaiust the decree of the Divisional Judge, alleging that tbe
so-called two houses aie one house ; contending that even if
the houses are two, his right of pre-emption extends to both of
them ; and further, that plsintifE mu^t take the whole bargain
or nothing, and as he cannot get the whole, he must get
nothing ; that the price to be paid has been put too low ; and
urging that plaintiff hsd waived bis rights.
It was objected by plaintiff-respondeat that waiver conld
not now be set up, but we over-ruled the objection on the
ground that the evidence on which the contention of waiTer
is based was hefore tVe' first Court and was discnssed hj
it. That evidence consists of exhibit D. W. 1. However, on
oonsidering the effect of that dooament we hold that it does not
prove waiver.
As regards the question whether the property is one hooBe
or two houses : the local commissioner f.nnd it two, becanse
there is no internal communication between the two baildings ;
ihero are separate tenants ; and the street doors ans distim^
There can be no doubt the whole edifice was a single boose
once— wie mortgage-deeds of September 1900 and of December
1900. But in the moitgage-deed of January 1901 two booses
are specified, one called MaJean KaUn and the other Udkf
Khufdt the boundaries being separately detailed ; and we find
the same description in both successive sale-deeds, and in ex-
hiUt D. W. 1 aforesaid, relied upon for another purpose bj
defendant S. Considering all this, and also the fact that the
two buildings seem to have been constructed at different tiou
we have no hesitation in agreeing with the learned Divisional
Judge that there are two houses and not one.
But defendant 3 contends that the moment the sale to him
was complete, he became, by virtue of holding house No. li
\a which his right of pre-emption was superior to plaintiffs^
OcTB.lOCt ] OIVIL JtDGMENTS-No.-lli. 521
next-door neighbonr of hoase No. 2, wbicli has been decreed ;
and thus as to boose Ko. 2 he bad rights eqwd to those of
plantiff. This is a proposition to which we cannot give oar
assent. In the first place plaintiff's right to sne arose on the sale
by defendant 1 to defendant 2, and at that time defendant 3
had no contigaity with house No. 2 ; and again, it seemK to
as more than donbtfal whether Mr. Oertel's ingenioos argument
18 sound, whereby be utilises the purobat^e by his client of bouse
No. 1 as giving him a right of pre-emption as regards the
simnltaneouBly-purcbased house No. 2, in regard to which the
moment before the sale he had no rights at all. Such a method of
dealing with the matter would, in our opinion, lead to absurdity
in the case, to take an illustration of the sale of a row of 20
houses to one of which a party's house was contiguous.
As regards the price we see no reason to differ from the
learned Divisional Judge. It seems to ns nearly certain thai
the sum of Rupees 150 was never really paid in advance ; and
that the value is really about Rupees 950.
The oontention that the Court below should not have decreed
in part but, finding it could not decree in whole, should have
dismissed the suit, hardly requires refutation. We see no reason
why plaintiff should not get a decree for the part of the property,
being a distinct part, as to which he has superior right— wde
Battigan's Digest, Explanation I to para. 106, and the rulings
there quoted. We see no good ground for the distinction that
the rule there laid down applies only to land and not to bouses.
Ah reffards the assignment of so much of the mortgage-
money to one house and so much to the other, which was briefly
discussed before us, we are unable to make any alteration.
Appellant does not ask us to alter or explain what the Di visional
Judge has ruled, and plaintiff has not appealed or filed cross-
objections. We, therefore, dismiss this appeal with costs.
Appeal diifntaed.
5ft2 ^^^^^ J0DQMBNTS-NO. Il8. [ Rioo&d
No. 118-
Before Mr. Justice Johnstone and Mr. Justice Led Chand,
t DADU AND OTHERS,— (Plaihtiffs),— APPELLANTS,
A^PiLLiTi 8n>B. < Versus
I KADU AND OTHERS,— (Dbfindants),— RESPONDENTS.
Civil Appeal No. 121 of 1907.
Civil procedure Code, 1882, SeeHon Z6%— Death of one of Several
defendanU—AppUcation for eubstituHon— Sufficient cause for not applying
withiH prescribed period^ LimitaHon Actt 1877, Section 5.
Held, that ignorance of a defendant's death is sometimes sufficient cause for
not applying for legal reprebentatives to be brought on the record in the place
of the deceased within the period prescribed therefor and a plamtif can
successfully plead his ignorance of the fact as a justification for such delay
where defendants are numerous and lire in a diiferent village from plaintilf
QamanY. Baksha ( *)i and Amir Khan v. Dula (*), referred to.
First appeal from the decree of Pandit Joti Parshad^ District
Judge, Jhang, dated 31st October 1906.
M. N. Makerjee, for appellants.
MorriBon, for respondents.
The judginent of flio Court was delivered by —
l&ih Julv 1907. J0HN8TONI, J. — On April 8tb, 1904, this enit was dismissed
for default, and on 26th Jane 1904 a petition for leview was
rejected. Thereupon plaintifiPs appealed to the Diyisionai Court,
whioh, on 1st March 1905, accepted the appeal and remanded
under section 562, Civil Procedure Code, apparently for re-tritl of
the prayer for restoration. A miscellaneous appeal to the Chief
Court against this order of remand was dismissed on 20th
December 1905. Evidence was then taken, and on 30th Maroh
1£(06 an order restoring the case was passed, subject to the
payment of compensation by plaintifiPs by 1st May 1906, It was
at the same time brought to notice that one or moro plaintiffs
had died, and it was directed that application for substitation
should be put in. The case went on, and on 12th June 1906
application for substitution of names for a dead defendant, Walit
was made, and in the petition it was stated that, if any other
' defendapts wBre dead, plaintiffs were not aware of the fact
(For the dead defendant Sardaxa no substitution was needed,
his heir being already a defendant) Two or three weeks later
defendants objected that the suit had abated, inasmuch as Wali
had been dead more than three years ; and on 31st October 1906
042P.28.,18a7. 0 43 P. B.. 1889.
OOTB. 1907. ] OITIL JUDGHINTB-Ko. 118. 12B
tbe Oonrt oonsidered the matter, aooepted defeodants* Tiew, and
dismisfied the snit with ooeta.
PlaintifFs have now appealed to this Goiirt» and we are eon-
strained to accept the appeal. In the first place, it is not really
clear when Wali died. Defendants say it was more than 3 year*
before June 1906, i.e., before Jnne 1903 ; but on 6th October
1903, when a summons addressed to Wali reached the village and
was handed to his brother, the latter did not say Wali was dead,
bat merely that he was not there and would appear on due
date. This was recorded on the other copy of the summons.
Again, in the partition proceedings of November 1903 no doubt
Sada, son of Wali defendant, was examined, and so forth,
but even there it was not definitely stated that Wali was dead,
though probably he was.
Next, though we may take it that Wali died much more
than six months before his heirs were brought on the record, we
have to see whether there were extenuating circumstances in
respect of the delay and sufficient cause for it. Plaintiffs and
defendants live in different villages, and defendants were 18
at ]^Mt in number. Again, the District Judge's idea that
plaintiffs must have known of Wall's death at latest on 20th
November 1903 is hardly warranted, for in partition proceedings
BODS often appear and are examined in absence of their fathers.
Thirdly, when application for review was made in June 1904 and
then an appeal wfu> made to the Divisional Court, we do not find
defendants objecting that Wali was long dead and so plaintiffs'
snit must fail. Indeed, Wall's death was not mentioned. Nay,
defendantfl themselves appealed, as stated above, in 1905 to the
Ohief Court and even there put in no plea that the snit had
abated.
These facts afford sufficient reason fer setting aside the
District Judge's order. Probably plaintiffs never knew of
Wali's death till March or even till May 1906 ; and igrorance of
such a fact is often sufficient cause to prevent a suit from
abating^ef., Oamanv. Baksha (^). Even if they knew more
than six months before they took action, it must be remembered
that they are ignorant zamindars — cf.. Amir Khan -7. Dula (*),
and that they may have been misled by — *
(a) the fact that until 1st May 1906 the case had not been
restored to the file for regular trial ; and (6) the circumstance
that even defendants, as we have seen, acted, until 30th March
(> ) 48 P. B., 1887. .(•) 41 P. B., 1889.
hU
CIVIL JUD0MB5T8— No. 114. C S*»1B
ArOLUXB BlDM.
1906, A8 if they did net oonflidor the time had arriyed for
tronblisg about deceased parties and their heirs.
For these reasons we accept the appeal and set aside the
order of the learned District Judge, and declare that thesaii
has not abated but should be proceeded with according to law.
This is pubstantially a remand under section 562, Oivil Procednie
Code. The stamp on the appeal will be refunded. Other coete
in this Court will be costs in the case.
Appeal cUowd^
1
No. 114.
Before Mr. Justice Battigan and Mr. Juatiee Lai Ghana.
KIRPA RAM AND 0THERS,-(PLAiimfF8),— APPELLAHTS,
Venu$
RAKHI, AND OTHERS,— (Dbpindants),— RESPONDENTS.
Civil Appeal No. 406 of 1907.
Liti^itation Act, 1877, section 12—AftflieahiL%iy qf— fo ttffUeaHtm
und$r iection 70 (b) of the Punjab Courte Act, 1884— Dedtcctton o/*i«#
requisite for obtaining Copies of the Judgment and decree cf tfce Iwm
A'PV^tlaJte Court — Alienation by Hindu widow of etlf-acquired |)rop«r(y
of her huebond-^Bight of reMereioner to question euth alienation,
Beld, that section 12 of the Limitation Act, 1877, applies to
applioations tinder aectian 70 (b) of the Punjab Courts Act, 1884, and that
therefore the time requisite for obtaining Copies of the Judgment and decree
pf the lower appellate Court is to be excluded in cemputisg the peno^i
laid down by clause {i) of section 70 (b) of that Act.
Kithen Dial v. Bam Ditta (0, overruled.
^ Beld, also that there is no distinction between ancestral and acquired
property inherited by a Hindu widow from her husband and a reveraooer
has as much right to contest her alienation of the one as of the other.
Further appeal from the decree of Captain B. 0. Bo«i
Divuional Judge, Jullundur^ Division, dated bth January 1906.
Hnkam Chand, for appellants.
\ " Sakh Dial, for respondents.
The Jadgments of the learned Judges were as follows:^
ISA /«•••« 1907. Rattioan, J.— The first question that arises in this case
is whether for the purposes of compntirg the period of W
days specified in section 70 (1) (6), Proviso (0» o^ ^^
Punjab Court's Act 1884 (as amended by Act XXV of 1899)»
the applicant is entitled to exclude the time spent w
% 1^ I ■' - I - - ■■ * ' ' mil ■
<»)«)p.B.,ioor.
Oon. 1907. ] CIVIL JTTBOMBNTS— Na }U. 6(15
obtaining oopiee of the Judgment and deoree of ihe
Lower Appellate CoartP In Eishen Dial v. Bam THita {^\
this qaestion waa answered in the negative and it was then
farther held, npon the particular facts of that oase, that
applicant had not shown ''sufficient cause" within the meaning
and for the purposes of the above Proviso. The decision
in the case cited has, I understand, been followed in one or
two subsequent Single Bench judgments and in the present
oase the learned Chief Judge, before whom this case came
in Chambers, accepted that rulini< to the eiLtent that it
held that the time requisite for obtaining copies of the decree
and judgment of the Lower Appellate Court cannot be
deducted in computing the period of 90 days prescribed by
section 70 (1) (5), Proviso (0 of the Punjab Courts Act.
He was, however, of opinion that in view of the practice
of this Court hitherto, the mistake of the applicant in
thinking that he was entitled to deduct the time spent in
obtaipiog such copies should be held to amount to '' sufficient
oanse ". This question has been very ably and exhaustively
argued before 'us, and after hearing these arguments I am
satisfied that the judgment iu Kishen Dial v. Bam Difta (1)
is erroneous, and I have the lees hesitation in so holding as
I was the author of that judgment. Upon further and
better consideration, and especially after hearing Mr. Hakam
Chaii^'fl arguments on the point, 1 have now no doubt that
the provisions of section 12 of the Indian Limitation Act,
1877, are at>plicable in computing the period of 90 days
prescribed in the aforesaid first proviso to section 70 (1)
(6) of the Courts Act. Indeed, explanation (2) to this last
mentioned section expressly provides that *Mn computing
"the period of limitation aforesaid the provisions of the
^ Indian Limitation Act, 1877, shall be deemed to apply." Now
the provisions of the Indian Limitation Act applicable for
the purposes of computing the period of Limitation are
contained in Part III of that Act and eeotion 12 is within
this Part. Mr. Hnkh Dial argued that the Legislature could
not have intended, when enacting the second explanation to
section 70 of the Punjab Courts Act, to allow the deduction
of time requisite for obtaining copies of the decree and
judgment of the Lower Appellate Court, because such copies
were not by law required to be filed with the application
under section 70 (I) (6), whereas in the case of an appeal
the copy of the deoree is always necessary and the copy of
e)iOP.&,1907.
526 ^^^^ JUDGM ENTS-Na U4. [ BiooBO
ihe jadgment most also be filed aoless the Goart othermae
orders (sMdon 541, Civil Procednre Code). This might have
beeD a good ground for the Legislature to eoact that for
the purposes of section 70 (1) (6), of the Punjab Courts
Act, the provisions of section 12 of the Indian Limitation
Act| relating to the deduction of time requisite for obtaining
such copies, should not be applicable. But the Legislature
has not so enacted. On the contrary, it has in express and
definite terms stated that *'in computing the period of
'* limitation aforesaid, the provisions of the Indian Limitation
'* Act 1877, shall be deemed to apply,** These words are dear
and can admit of no question, and as in construing a statute
of limitation a favourable and liberal interpretation should
be given to the words employed by the Legislature, I should,
even if there were any ambiguity, feel constrained to hold
that for the purposes of computing the period of 90 days
prescribed by the first proviso to section 70 (1) (6) of the
Punjab Courts Act, the whole of the provisions of section
12 of the Indian Limitation Act must apply. Bat. I can
see no ambiguity in the words of the Act, and I therefore
hold that in computing the aforesaid period of limitation,
the time requisite for obtainig the copies of the judgment
and decree of the Lower Appellate Court must be excluded.
In so holding, I do not question the correctness of my
brother Johnstone's ruling, reported as Mehar Singh v. Ourbachan
Singh (^) to the efFect that it is not necessary for an
applicant for revision under section 70 of the Courts Act
to file such copies. It may not be necessaty to files such
copies, but the applicant, if he does file them is, I think,
entitled to deduct the time spent by him in obtaining them.
In the present case ; if the time spent in obtaining the
said copies is excluded, the application is admittedly within
time, and I would, for the reasons given, bold the lequieite
deduction of time should be made atd that the application
should be admitted.
Turning now to the merits of the application, I have
no hesitation in holding that the Divisional Judge diFinissed
the appeal presented to him upon a wholly erroneous view
of the law. The alienation impugned is one by a widow
and even if it be assumed that the property alienated by
her was the self-acquired property of her husband, I can find
no authority for the proposition that the reversioners of her
husband have no locue standi to contest the validity of soch
(»)146P.Ii.R,190e.
OOTR. 1907. ] CIVIL JUDaMBNTfl— No. U4. -627
alienaiion. The Divisional Jadge, however, holds that *' the
*' word reversioner implies that the property was ancestral, *
but for this proposition he cites do aathority, nor indeed,
80 far as I know, would it be possible to sapport this view ^
by reference to authority. The property was alienated by
a widow and whether such property was the ancestral or
eelf-acqaired property of the widow's late hnsband, the
latter's reversioners have the right to contest the validity of
the alienatinn. Mr. Snkh Dial, for respondeots, candidly
admitted that he was nnable to support the judgment of
the learned Divisional Judge upon the gronnd on which it
was based. I would, therefore, if my learued brother agrees,
accept the appeal and remand the case to the Divisional
Jndge nuder section 562, Civil Procedure Code, for decision
of the appeal upon the merits, and I would leave the
question o<. costs to abide the event.
Lal Ghand, J. — ^I agree entirely. It appears to me further 14<& J^^ 1907.
that the reanon urged by Rai Sahib Sukh Dial for not excludiug
the time spent in obtaining copies of the decree and of
the Judgment on which the decree is founded is neither
sound nor justifiable. Section 12 of the Limitation Act does
not provide for ezclusion of such time in case the copies are
required to be filed by law. No doubt, in order to claim
the deduction of time, it must be shown that the copies were
actually obtained aud this fact can best be proved by filing
the oopies. Bat at the same time it appears to me to be
eminently just and reasonable to allow the deduction regardless
of the question whether such copies are or are not required by
law to be filed. Whether remedy lies by an appeal or by
application for revision agaiost the decree passed by the
Lower Appellate Court, such remedy cannot properly be
availed of unless the appellant, or applicant, as the case may
be, be in a position to know exactly what has been decided
aginst him and on what grounds. Such information can be
secured ordinarily if not merely by obtaining oopies of the
decree and of the judgment sought to be appealed or applied
against. At any rate it can hardly be imagined as feasible
or practicable for a suitor to take precise objection^ against
the judgment and the decree without a detailed reference
tO| and a proper examination of, the judgment and of the
decree after obtaining oopies. It appears to me, therefore, that
the law very justly intended and provided that the time
spent in obtaining such copies should be excluded from
computation and did not insist that the exclusion be allowed
only whan it wm neeoBBary by law to file oopies of th#
'628 CIVIC JUDGMBNTS-No. IM. [ Bicou»
deoree and of the judgment with the appeal or the application
for revision, as the case may be. That sach is the soope
of the provisions of section 12 of the Limitation Act is rendered
farther clear by the last clanse of the section, which, in
computing the period of limitation preecribed for an applicatioo
to set aside an award, allows the time requisite for obtainiog
a copy of the award to be excluded, although, so far as
I am aware, it is not necessary by law to file a copy
of the award with the application containing objections. On
the merits of the question raised in this appeal I am
again in perfect aooord with my learned brother. The
Divisional Judge has held *' the parties are governed by
*^ Dharm Bhagtra and under any circumstances the property
'' would go absolutely to the widow in preference to collaterals
*' of the 4th degree." I am not aware of any such provisions
in the Hindu Law, and none was quoted at the hearing by
the Pleader for the respondent. A widow under Hindu Law
succeeds to a mere life estate with a restricted power of
alienation, and, as pointed out by ray learned brother, it is
altogether immaterial whether the property inherited and
alienated by a widow was self-acquired of her husband or
was inherited by him from a common ancestor of his and of the
claiming reversioners. Her right to alienate such property
is positively restricted even so far. that the Grown .itself
as an nltimate heir might challenge the alienation if effected
without necessity — Mayne's Hindu Law, para 625. '* The
*' self-acquired property of a man will descend to his widow
« when his joint or ancestral property would not do so.
''But she has no otber or greater power over the one than
** over the other "—para 645. The plaintiffs-appellants, therefore,
as reversioners were entitled to challenge the sale and sue
for a declaration that it shall not affect their reversionary
rights. I, therefore, agree to the order of remand under
section 562, Oivil Procedure Codes leaving the question of
costs to abide the result as proposed by my learned brother"
Appeal oXk/vod
OOTB. 1907. ] CIVIL JUDailBNT8-No. 115. 5|9
No. lis.
Before Mr. Justice Rattigan and Mr. Justice Lai Chand.
QOHRA AND OTHERS,— (Dbfindihts),— APPELLANTS,
Versus
/Apfillaxi Sibi.
HABI BAM AND OTHERS,— (PLAiNTirfs),-RESPOND- ^
BNTS.
Civil Appeal No. 513 of 1905.
Custom — Alienation— Alienation of aneeatraX property — Aroras •/ tahail
Ohdkwalt JheUtm District^Eindu Law or Custom-^Burden of Proof,
Held, that in matters of alienation of ancestral property the Aroras of
tahsii Chakwal in the Jhelum I^istrict are not governed by custom bat hy
Hindu Law, and that a sale of ancestral land by a sonless proprietor in fayonr
of his sister^s son cannot beqnestioned by his collaterals on the ground that
it was made without necessity or consideration.
Members of non-agricultural tribes are not to be held ' bound 1^ customa
prevailing among agricultural tribes simply because they happen to own
land and to be living with members of agricultural tribes, and the burden^ of
proof, therefore, that in matters such as alienation or succession they
are governed by custom, rests always on the party making such an
allegation.
KhoMan St^yh v. Maddi 0), Anont Bant v. Euhman Mai (*), Eartar
Singh v. Matharmngh (•). Eumam Bingh v. Davi Chand (♦), and Baroo v
Makhan (•) referred to.
Further appeal from the decree of Ehan Abdul Ohafur Khan^
Divisional Judge^ Jhelwn Division^ dated 22nd Ftbruary 1905.
Oeriol, for appellants.
M. S. Bbagat, for respondenta*
Tbe judgment of the Court was delivered by
Rattigan, J.— The parties are Aroras of tahsii Chakwal in Hth April 1907.
the Jhelnm District, and the question which we have to decide ^
is whether an alleged sale of ancestral land by a sonless proprietor
in favour of his sister's son is or is not valid.
The District Judge held that the sale in question was valid
BO far as the actual passing of oonkideration was ooncemed,
and that as the parties were governed by Hindu Law and not by
the ordinary onstomary rules, the said sale was valid and binding
upon the plaintiffs, who are the reversionary heirs of the
▼endor. We might observe, in passing, that the District Judge
was of opinion that the vendees had failed to prove that the
(') 128 P. J?., 1898. (») U P, B., 1S98.
(») 63 F. B., K02. (*) 1(7 P. B,, 11)01.
(') 61 P. E., 1908.
580
CIVIL JUDGMENTS— No. 115. [ »«»»
sale was for eati zarurat, and therefore for legal neceesity. The
District Judge is not very clear upon this point. Upon the first
issue he finds that " part of the money was used to pay off a
pressing creditor whose receipt is on the file. *• If this was the
case, the sale was clearly valid pro tcvnto. It is unnecessary,
however, for us upon the view which we take to discuss this
aspect of the question. Admittedly the sole question before
us is whether the vendor and the plaintiffs are governed in
matters relating to alienation of ancestral property by Hindu
law or by custom. If Hindu law applies, it is conceded that the
alienation is valid. On the other hand, if custom applies, we
should still have to ascertain whether among Aroras of
this particular village {mauza Bhin, tahsil Ghakwal) a sale or gift
to a sister's son is invalid. The Distnct Judge holds that Um
parties are governed by Hindu Law. The Divisional Judge, on
the contrary, holds that custom rules, and upon this finding he
has granted plaintifFs the decree prayed for. But this latter
conclusion is not in any case warranted by the evidence on the
record. So far as we know there is no such thing in
existence, nor, indeed, could there be sny such thing, as a body
of general customary law. Tribes in various localities follow
different customary rules, and because a certain rule of enstom
is observed among certain tribes in other parts of the Province,
it would be unsafe to hold that the same rule must necessarily
prevail in the case of totally different tribes in other parts of the
Province. In the present case, even if we assume that these
Aroras observe enstom and do not follow the roles of their perEonal
law, we would have to ascertain whether by that custom a sale
or gift of ancestral land to a sister's son is invalid in the
presence of near agnates. The learned Divisional Judge has
a9$umed that such g«fts or sale would he invalid, because these
Aroras have adopted the customary rules observed by their co-
villagers who are Muhammadan Bhines and Mair Manhas. It in,
however, fairly well established now-a-days that the Muham-
madan tribes of the Jhelum District recognise far more extensive
powers of alienation in favour of daughters and sisters, and their
respective descendants, than are recognized by other tribes,
especially Hindu tribes, in the central parts of the Province (see
as to this, 8her Jang v. Qhulam H^ohiuddin (»), Hassan r.
Jhanda (•)). Therefore, even upon the assumption that the
parties follow custom, the Divisional Judge was not justified io
holding that the alleered sale or gift was invalid. Before any
such conclusion could be arrived at, it would be necessaiy to
( ») 22 P. B., 1904. («) 71 P. B., I8O4,
OcTB. 1907. ] CIVIL JODGMBNtS-No. llB. ^Jj.
find what was the castom in snoh matters observed by the Bhins
and Mair Miohas of this village. Presamably if the raliuf^
referred to correctly represent thefj^eneral feelings of Mahammadan
tribes of this locality, castom woald be in favoar of, rather
than opposed to, the alienation impngned.
Bat we do not feelcaUed npon to give any decision apon
this point as we are not satisfied that these Aroras have adopted
customary rales io the matter of alienation. They are members
of a tribe or caste which primd fade does not belong to the
agricaltaral commanity. They are also Hindas and the peopU
amoog whom they are living in the village are Mnhammadans-*
and Mahammadans who observe the general principles of
Mahammadan Law to a larger extent than do other agricaltaial
Mahammadan tribes. It is admitted that the vendor is a mere
malik kabza in the village, and that none of the parties have any
share in the village shamtlcU. There is also no proof that any of
the parties have themselves cultivated the land held by them.
As against these facts, plaintiffs can only rely on the fact that
for some time past, possibly for one pr two generations, the
parties have owned land in the village. Is this latter fact
sufficient to justify the conclusion that these Hindu Aroras, who
are notoriously more a shop-keeping than an agricultural class,
have adopted the castom of their Mahammadan neighbours f
Who cannot think so. The leading authority in cases of this
kind is Khazan Singh v. Maddi (^). In that case the learned
Judges (Plowden, S. J, Frizelle, J.) made the following remarks :
^ The Bedis, as a class, are not a land-holding society like Jats
"or Rajputs, or other dominant agricultural tribes, who have been
'* hereditary land-holders fronn countless generations. They are
*' more on the level of Sayads and Brahmins and Ehatris to which
" class they claim to belong. These non-agricultural classes are
*' sometimes met with as land-holders among other land-holders of
*' the land-holding tribes, an the castom may more or lesn resemble
*' those of the tribe among which they are foand, in respect to
*' the inheritance of land and power of disposition. But the same
'* presumption cannot be predicated regarding any of these non*
« agricultural classes, as a class, as may be properly made, as the
*' result of experience, in regard to agricultural tiibes either per*
'' flonally or in particular localities. *' In the present case there
is an absolute dearth of evidence to prove that these Aroras have in
any respect followed custom in preference to the rules of Hindu
Law. The learned Divisional Judges this, admit He also holds
(^) 12S P. 12., 1898.
5d2 OIVIL JUDGIIBNTS-No. 115. [ BKOo.B^
that the onus was rightly placed oa plaintiffs io prove that
in the matter of alienations, regard was to be had to cnfltam
and not to Hinda Law. He farther concedes that plaintiffs were
unable to addace any specific instances in sapport of their
contention, and that the record of rights contained nothing
in their favour. Bat he nevertheless held that the A.roras being
** so few in namber, woald naturally adopt the costom of the
" predominant body. " The grounds upon which he arrived at
this condasion are that the Aroras were consulted when the
Bitoaj'i-em of the Jhelum District was prepared and that for two
or three generations the present parties have been mainly living on
agricolture. We do not consider these grounds sufficient to
jnstify the learned J udge's conclusions. Some Aroras in other
parts of the district may have been consalted by the Settlement
Officer when the Biwaj-t-am was being prepared and they may
have aoquiesoed in the answers given by their agricultural
neighbours. But there is nothing in the Biivaj'i'am to show who
those Aroras were or to which village they belonged, and not a
single instance has been given in this case in support of the
correctness of the Bttoaj^^anif which we may observe is in very
general terms. And as regards the fact that the parties have
held land for some time past, we have the authority of the
ruling of this Oonrt in Khizan Singh v. Maddi (i) (and numerous
other reported cases) for holding that the mere ownership of
land is not enough to prove that members of a tribe which is
not ordinarily an agricultural tribe, follow the customary rules
generally observed by agricultural tribes. Nor can we agree
with the learned Judge that these Arors being so few in number
would " naturally adopt the custom of the predominant body. "
In this case "the predominant body *• were Muhammadans
whose rules are, it would seem, more in consonance with
Muhammadan Law than with the customary rules obtaining
among ordinary agricultural tribes of the central parts of this
Province. There is therefore no (i|7non pres a mption that this
small family of Aroras adopted the customs of the Bhins and Mair
Minhas of their village. Bat even if they did, it is quite possible
that even by such customary rules the sale (or gift) in question
would be valid (see Sher Jang v. Ohidam Mokiuddin (")), and
even upon his own assumption the learned Divisional
Judge was not warranted, in the absence of further enquiry upon
this point, in holding that the said sale (or gift) was invalid.
In support of his contention, Mr. M. S. Bhagat, for reppon-
dents, relied on a decision given by the Commissioner in a case
(0 122 P. J?„ 1893. (•) 22 P. £., 1904.
OciB. 1907. ] 585
relating to of this Aroras Tillage. This decisioD was, however,
giveo in 1867 in a pre-emption case and the deoision was baaed
not on oastom, apon whioh no enqairy was made, bat upon the
proYisions of the Panjab Civil Code whioh was then in foroe.
Obvioasly this deoision oan be of no help in the present case
whioh has to be determined npon its own faots. The learned
coansel also referred to Anant Bam v. Buhman Mai (^) — a ease
among Aroras of the Kasar iahiUy Lahore District In this
case it was held that the onus of proving onstom lay npon the
plaintiffs who asserted it, bat it was then fonnd that plabtif!
had apon the evidence sacceeded in establishing his contention.
Clearly this oase is no authority in snpport of the present
oontention. On the contrary it is an anthoriiy for the proposi-
tion that the plaintiffs in this case mast fail, unless they oan
show by the evidence on the record that the parties observe
oastom and not their personal law, and npon the record as it
stands, there can be no donbt that this has not been established.
Mr. H. S. Bhagat recognized this and urged that plaintiffs
Bhoald be given a farther opportunity of proving their case.
He urged that there was no definite issue on the point whether
in the matter of alienation these Aroras were governed by
Hindu Law or by castom, and that consequently the plaintiSs did
not produce evidence which, had the issue been clearly set forth,
they could have adduced. We cannot agree with the learned
oouDsel. The third issue was* perfectly dear. <* If so ** (t.s., if
the land was ancestral) *' could Gohru legally alienate the land P **
The first Court discussed this issue from the point of view
whether Hindu Law or castom applied, and there can be no doubt
that the parties themselves understood it in that light. The
plaintiffs in their grounds of appeal to the Divisional Judge did
not orge that they were misled by the form of the issue or
ask for a further enquiry upon the point, and under these
cironmstances it is too late for them to ask us to remand the
Oise for this purpose. All that they urged in those grounds
o! appeal was that they had by sufficient evidenoe proved that
they followed custom, and that that custom did not recognize the
validity of such alienations as that in dispute. It wasnot snggested
ttat they had further evidence to produce in support of their
I caee. Mr. Oertel, for appellants, has referred to a number of
<»W8 in which it has been ruled by this Ooart, that members
^ non-agricultoral tribes are not to be held bound by customs
prevailing among agricultural tribes simply because they happen
to own land and to be living mth members of agricultural tribes
0) 68 P. B^ 1908.
5S4 <'IVIL JUDGMBKTS— No. 116. [
Khazan Singh v, Mctddi {^)f Katar Singh 7. Mathar Bing\{*),
Bamam Singh v. Devi Ohand (•), Baroo v. Mahhan (*), and Ai»
Singh Y. Prem Singh (•). We do not consider it necessary to
disease these rulings in detail as we are of opinion that the
plaintiffs have failed to show that among Aroras of their villige
there is anj recognised oastom^iry rale which wo aid preolnde a
sonleess male proprietor from selling (or even gifting) a part
of his ancestral landed property to the son of hi s sister.
It is not contested that if Ilindn Law applies, the alienation
in dispate, whether it was really a sale or merely a gift, woald
be valid, and as we find that Hinda Law does apply, we mast
accept the appeal. We accordingly reverse the decree <^ the
Lower Appellate Coart and restore that of the District Jadge.
Respondents mast pay the appellaats' cost^ throaghoat
Appeal aJl9md»
Nolle.
Before Mr. Juitice Battigan,
SHANKAR LAL,-^(JnD0MBNT-DKBT0B),— APPELLANT,
Venus
ZOaAWARSINaH,—(DiCB«i-HOLDBB),— RESPONDENT.
Oivil Appeal No. 772 of 1904.
AmUiiTl dXDl J Execution of decr§e — Defective application for ^ Step in aid of taecMtm—
Limitation Act, 1877. Schedule II, Article 179 (4).
Held, that if an application defective in form as an applicatkn Iff
execution of a decree contains a prayer for the issue of a notice mider SactioD
248 of the Oode of Oivil Procedure and such notice is issued, it shoold be
treated as an application to take some step in aid of execution within tbo
meaning of Article 179 of the second Schedule to the LimitaticHi Act, 1877.
Dhofikal Singh v. Phahker Singh («) (Hpal Chander Manna v. Qoeain Df
KalayChKalka Dube y. Bieheehar Patok (•), Bama v. Forcufa (*), Pm^
Singh Y. Bal Kishen (^<»), A$gar AliY.Troilohya Nath Ghoee C^\€hpalS^
V. JankiKoer (»•), PandaH Nath Bapuji v. Lila Ohand Batibhai (»»), Bhefm
Jettu Bam v. Dhondi (^*), and Sha Karam Chand v. Ohela Bhei (*')
referred to.
(') 132 P. B, 1893. 0) I. L. R. XXIII AU, 1^
<,•) 94 P. a.. 1898. (• ) 1. L. B., XVI Mad^ 1 4$.
(•) 107 P. B., 1901. (10) e p ^^ ,895
(*^ 61 P,S, 1908. ( » 0 I. L. B., XVH Oale., 681.
(• ) 12 P. B., 1906. ('•;/. Iw B., Xim Oaic^ S17.
(•) 1. L. B. XV All., 84. i^*) I.L.R., XIII Bom^ »7.
(') I.L.R.XXr Oale., 694. (»*)/. L. B.. 1301 Bom^ SI.
(!•)/. 1;. B, XrX Bom,, 84.
OCTB. W07. ] CIVIL JUDOMBNW-No. \ie. 636
Mi9oettaneoui further appeal from ihe order af Ead Muhammad
Ailam, THtinonai Judge, Ferof'epore Division, dated 12/*
Juiy 1904.
Fazal-i-HasBain, for appellant.
Sokh Dial, for reepondeiit.
The jadgment of the Court was delivered bj
Rattioahi J.— The decree-holder obtained his decree in the Sri Veer. 1906.
Chief Oonrt on the dOth May 1900, and on 16th May 1903 he
filed an application for execution. The principal debtor, Babu
Shanker Lai (a pleader) appeared in the Execution Court on the
27 ih Jaly 1903, and on the 25th August 1903 certain objections
were taken by him to the form of the application for execution.
The application was accordingly returned to the decree-holder for
amendment, and was snbseqaently daly filed within the time
allowed by the Court for such purpose. When, however, the
ameoded application was filed, the judgment-debtor above
mentioned objected that the application was time-barred, inas*
maoh as it was itself presented af t«r the expiry of the period of
limitation, and limitation could not be saved by reason of the
earlier application as the latter was so materially defective in
.form as not to amount to an *' application made in accordance
''with law," within the meaning of Article 179 (4) of the
Limitation Act.
The defects in the firpt application were as follows :— '
(a) the names of all the judgment-debtors were not stated ;
(&) in column ((Q it was not stated whether an appeal had
been preferred from the decree of the Chief Court
which it was sought to execute ;
(c) in column {K) it w^s not stated what amount of costs
had been awarded ; and
(S) in column (/) no mention was made of the property of
the judgment-debtor which it was sought to attach.
It is (tont^ndad for the judgment-debtor that these
omissions most materially affected the validity of the
application and that sach application by reason thereof
was in law no application at all. In support of this
contention reliance is placed on the oases reported in
Asgar Ali v. Troilohya Nath Qhose (*), OopalSahy.
Janhi Koer («), Pandari Nath Bapuji v. Lila Ohand
HaHbhai ( »), Bhagwan Jettu Ram v. Dhondi (*>, and
(») 1. L. B., XVII CaU,, 681. (») I. L. B., XTii Horn., 997.
(•) I. L. B., XIIJI OaU., 217. v*) i. L. B., XIJl Bom., 88,
586 CIVI. JUDGMENTS— No. 116. [ BaootD
Bha Karam Okand y. Ohela Bhai (i). For ihe respond-
Aot^^eoree-holder, Mr. Sakh Djal referred to Ocpal
Ohander Mannar. Oosain Das Kalay {*)t Kalka Ikk
V. Btsheshar Paioh (*.), Eama v. Varada (*), and
Prabh Singh y. Bal Kishen (»), at p. 30. He urged
that ihe defeots in the earlier applicatioa were not
material and did not in any way prejadioe the present
appellant against whom alone of the jadgment-dehtors
relief wa<f prayed ; and that in any event, even i! tiie
application oonld not be regarded as *^ an application
for exeoation^in accordance with law/' there was io it
a prayer for notice to be issued to the jadgment-debtor
nnder Section 248, Civil Procedare Code, and that notioe
was accordingly issned to that person. Thns
according to this argument, there was a step in
ezecation in accordance with law within the meaning
of Article 179, cTanses (4) apd (5). In snpport of
this latter argument reference was made to the ruling
of the Full Bench of the AHahabad High Conrt
reported as Dhonhal Singh v. Phakker Singh (•).
In reply Mr. PaBal-i-Hnseain urged that Section 235; Ci?il
Procedure Code, was imperative in its terms and that non-
compliance with any of its terms was fatal, even if the omissionfl
consisted in the failure to observe the requirements of clause (a),
vur., an omission to give the number of the suit. The learned
counsel frankly admitted that, quoad this argument) the Fall
Bench decisions of the Allahabad and Calcutta Courts were
against him, but he boldly asserted that these decisions were
erroneons and should not be followed. But even if he were over-
ruled on this point, he argued that the omission to specify the
property to be attached (clause (/) o* Section 235), was a most
material omission, and rendered the application absolutely
nugatory in point of law. He further contended that unless and
until there was before the executing Court a valid application for
execution, no notice under Section 248, Civil Procedure Code,
could legally be issued to the judgment*debtor, and thai
consequently the latter part of Mr. Sukh Dyal's argument fell
to the ground.
I am much impressed with these ai^menta and I fully
admit their force. It seems tome, however, that the decided
0\ I. L. R, XIX Bom., 84 (*) /. L. H^ XVI 2fai?^ 142.
(») I. L. B, XXr CaU., 694. F. B. (») 6P,B, 1896.
(•) X. I. B, XXm All, 168. (.) 1. r. B^ Xr AU^ Bi,F.B.
OOTB. 1907. } OlYIL JaDGUBNTS— No. 116. * 53^
wei|?ht of anthority is ag^ainst the view that the snbeeqaent
amerided apph'oation (which was presented on the 9th Jannary
1904) was time- barred. The present case is, on its factp, very
Biroilar tothe case with which the Pall Bench of the {Dhonkal
Singh, V. I'halcker Singh (<), at pp. 88, 89) Allahabad High Court
bad to deal. There too, as here, *' no inventr^ry or description of
" the property Foaghi to be attached was given." There, as here,
it was contended (io the words of the learned Chief Justice) that
the application was barred by limitation as it was made more
than three years after the date of the decree ; that the subsequent
application was not in accot dance with law within the meaning
of Article 179 of the second Schedule of the Indian Limitation Act
as not having been in compliance with Section 236 or Section 237
of the Civil Procedure Code, and that the issuing of the notice
onder Section 248 of the Civil Procedure Code was or an
application which was not made in accordance with law, and
oeosequently was not such an order as was contemplated by ^
Article 179. To this argument, the learned Chief Justice replied :
"we can dispose of this contention at once. That order,
** whether or not it ought to have been made or issued, was in
" fact an order under Section 248 of the Code of Civil Procedure
** and kept the dcciee alive for the purposes of execution." This
view of the law was endorsed by Bannerjee, J., of the Calcutta
Hiufh Court (p. 699, Oopal Ohander Manna v. Oosain Das Kalay (").
This learned Judge, whose opinions are entitled to the
highest respect, remarked with regard to an argument very
similar to that advanced before me, " lastly, granting that the
*' application o? the 7th July 1891 was informal and defective as
" an application for execution of decree, it was at any rate, as
'^pointed out by the learned mkCl for the respondent, an
" application to take some step in aid of execution, that is to
" say, to issue a notice, under Section 248 of the Code which was
•• here necessary, the decree having been passed more than one
** year before. A notice was issued according to the j}rayer,
" and the application and the notice were sufficient to keep the
" decree alive."
80 too in the present case, the application for execution,
even if it were defective in form as an application of execution,
undoubtedly and admittedly contained a prayer asking for
notice to be issued to the judgment-debtor under Section 248 of
the Code and upon the authority of the above cases, the notice
which was thereupon issued to the judgment* debtor, Shanker
(») L I. R^ ZV AU.^ 84. (•) h If. «^ WV Oale^ fSH.
538 OIHL JUDQMBNTB-No. 117. [ BioOBS
Lai, was effective for the purposes of keeping the decree alive
as against him, he being the only one of the jodgment-deUor
againot whom relief was really asked. Upon this view of the
law I find it unnecessary to give any decision as to whether the
particular omissions pointed out in the original application for
execution were or were not such as to render the application in
question no legal application for execution within the meaning
of Section 230 of the Civil Procedure Code.
So far then, as Shanker Lai, who is the sole appoU&nt-
judgment-debtor, is concerned, it must be held that the amended
application for execution which was filed on the 19th January
1904, is within time. I accordingly dismiss the present appeal
with costs in this Court.
Appeal dimitKd.
No. 117.
Before Mr. Justice Chatterji, C I.E , and Mr. Justice
Rattigan*
BHAGWAN DAS,— (Deceee-holdeb),-APPELLANT,
Apprujltb Sidb. { Versus
RAM DAS,— (JoDGMEirr.DBBTOB),— RBSPONDENT.
Civil Appeal No. 120 of 1906.
Assignment of land revenue ^Liability to attachment in esecutio* cf
deeree-^Punjah Descent of Jagirs Aet^ 1900, Section S (3),
Beld, that under clause (8) of Section 8 of the Ponjah Descent of Jagin
Act, 1900, a Bub-assignmeDt of land revenue made with the sanction d
Government is as incapable of attachment in execution of decree aa the
assignment itself.
fiectiau 8 of the Punjab Descent of Jagirs Act, 1900, is not limited to
assignment solely made by Qovemment but also includes a sub-assigmneat
made by the original assignees.
Miscellaneous jwrther appeal from the order of W. Ohsvis, Btquir$i
Divisional Jwige, Sialkot Division, dtted 2nd December 1905.
Ishwar Das, for appellant.
Sukh Dial, for respondent.
The judgment of the Court was delivered by
2^ , w 1906. Rattioam, J —The QovcrDmeTit of India by letter No. 234 B.,
dated 11th Mnrch 1862, made an assignment of land revenue ic
favouc of ^ja Teja Singh, and subsequently the latter osukde a
6rf«. 1^. ] CIVIL JUDQMfcN*S-iJ0. Ill ^^9
Pob-aBsignment of part of this jagir to Rai Mul SiDgh. This snb-
assigDment was recognised as valid by the Government and duly
sanctioned— (see letter No. 1103, dated 17th October 1881, from
the Chief Secretary to Government, Punjab, to the Secretary
to the Financial Commissioner, Punjab). A Notification under
Section 8 of the Punjab .Laws Act, 1872, (as amended by Punjab
Act 17 of 1900) was published in Jane 19C4. with regard to the
heritable assignments of land levenne made to Raja Teja Singh
above referred to, and a Notification under the same section
(No. 624, dated 21st June 1906) has recently been issued regarding
the assignment of land revenue made by Raja Teja Singh and
now in the bands of the male heir of Rai Mul Singh, Lala
Bam Das.
The questiou before us is whether, despite sub-section (3) of
Section 8 of the Punjab Laws Act, this latter assignment is
liable to attachment in execution of decree against Lala Ram
Das. The Divisional Judge who delivered judgment before
Notification No. 624 was published, has held that it is not, in-
asmuch as ihp Notification issued with regard to the assignment
in favour of Raja Teja Singh protects the whole jagir granted to
the Raja including that portion of it which was sub-assigned
bj the Raja to Rai Mai Singh, althoagh under the terms of the
snb-asstgnment the interest of the Raja and his heirs
in this latter portion of the jagir is limited to a reversionary
interest which will be of actual benefit to the assignor's family
only in the event of Rai MdI Singh's life becoming extinct.
Before us tbe question with which the learned Divisional
Jadfi^e had to deal does not really arise, for there can be no
donbt now that the assignment in favour of Rai Mul Singh is
protected in express terms by the Notification No. 624 of the 21st
June last* Revenue daring the past years has already been
realised, and the only point is whether future revenae can be
attached, and consequently no difficulty arises as to whether
the said Notification can be given retrospective effect to.
Mr. Ishwar Das folly realised this, and his sole contention
was that the Notification relating to Rai Mul Singh's jagir is
ultra vires because a notification under Section 8 can be issued
only in respect of assignments of land revenue made by Govern*
mentf whereas the assignment in favour of Rai Mul Singh was
made by a private individnal. We fail to find any force in this
contention. The section is in very general terms and refers to '* any
assiirn ment of laud revenue '*, and is not limited . to assignments
made by Government. Moreover, in face of the fact that the sub*
g^j 6l1riL JUDGMKNTO-No. ll7. t fi««»^
asaignmeDt was made with the sancfcioD of Goyernmeni and wm
lecognised by GovemmeDt as valid, it is an over-snbtle
argnment to nrge that it was not an assignment of the kind for
which Section 8 makes provision. No sub-assignment would
have been valid without the sanction of Government and the
effect in such casea of the grant of sanction is practicaliy to
convert the assignment into one made, if not directly, at least
indirectly, by Government.
Mr. Ishwar Das indeed is on the horns of a dilemma. Ad
assignment of land revenue can be validly made only by
Government. If, then Government did not make the assignment
in favour of Rai Mul Singh the act of Raja Teja Singh was a
mere nullity quoad the assignment which he purpoited to make
to Rai Mul Singh, the result being that in law the jagtr as a
whole is still the jcigir of Raja Teja Singh and his heirs, in this
case no portion of the jugit could be attached in face of the
Kotiflcation No. 89, dated 1st June 1904, which protects that
jagtr from attachment.
If on the other hand it was a valid apsignment, it must
necessarily be so because the assignment by the Eiaja was,
after recognition by Government, virtually an assignment
by Government itself which can alone, according to the
argnment, make valid aFsignments of land revenue. And
in this case no question can arise as to the validity of
Notification No. 6i4, dated 2lBt June 1904. Thus in eithw
case the assignment in the hands of Rai Mnl Singh's heir is
exempted from liability to attachment, and the decree^holder's
claim mnst fail. But it is not really necessary to decide tiiesa
points as it is, in our opinion, quite clear that Noti^oation Na 624,
which deals with the assignments in favour of Rai Mul Singh,
was intra vites and within the purview of Section 8 of the Aot
Mr. Ishwar Das could give us no authority for the contentioa
that the general terms of Section 8 are to be limited to a
particular kind or class of assignments of land revenue, and apon
principle we can find no justification for placing so cin^umscribed
a construction upon the plain words of the legislature or
for holding that the Courts can control the action of Govern*
ment under Section 8 by deciding whether a particular
assignment is or is not, an assignment for the purposes of that
section. If Government recognises as valid an assignment of
land revenue and proceeds to take action under Section 8 with
regard to such assignment, it is not, we conceive, open to the
Ctonrts to hold that such action is invalid because the assignmeot
OcTB. 190^. ] OltiL JttDGMiNTS— No. 118. 54 J
18 one whicli in the opinion of the Conrts Government shoold not
have recognised as snch. That is a matter solely for the
discretion of Gbvemment and not for adjudication by the Oonrts.
For these reasons we hold that the decree-holder's claim to
attach the jagir in the hands of his jndgmeni -debtor, Lala Ram
Das, the heir of Bai Mnl Singh, has been rightly disallowed and
we accordingly dismiss this appeal with costs.
Appeal dtsmissecL
fRwnnos Sidb.
No. 118.
Before Mr. Justice Jttattigan.
SDNDAB DAS,— (OBjBoroB),-.PBTITIONBRi
Versus
^ BAJA BALDBO SIKGH,— (Decbbbholdeb),— BESPOND-
ENT.
Civil Betision No. 2275 of 1906.
Execution of decree^ Decree for possession of immovable property^
Obstruction by person other than the judgment^ebhr'-Procedure>'^ivil
Procedure Code, 1882, Section 381.
Held, that where in execution of a decree for possession of immovable
property a person other than the judgment-debtor causes obstruction to
the delivery of possession of the property claiming in good faith to be in
possession thereof on his own accoimt, the Ck>urt executing the decree cannot
decline to investigate such claim even if subsequent to the objection the
objector happens to be temporarily out of actual possession. The Court is
bound to investigate the claim under Section 881 of the CodeofOivil
fftocedure.
Petition for revision of the order of W. Malan, Esquire^ District
Judge^ Batoalpindif dated 1th May 1906.
M. S. Bhagat and Pestonji Dadabhai, for petitioner.
Beechey, for respondent.
The judgment of the learned Jndge was as follows >^
Battioan, J.— The respondent, Baja Baldeo Singh of Poonch, |,^ j)^^^ 199^^
obtained a decree against Mnl Chand and Jai Bam, the latter
being the eldept son of Mnl Chand. From this decree Mnl
Chand and Jai Bam appealed to this Court and, pending their
appeal, effected a mortgage of the property now in qnestion 10
favour of one Gitnga Bam* This appeal was dismissed, and on
the 8th March 1906 the decree-holder applied for execution of his
decree and on the 19th March 1906 an order was passed by the
District Judge that he shonld be *' placed in possession of
S42 ^*V^^ JODGMBNM-Ka 118. t <ttooi^
'* the property ", viz., a three storied honse and a plot of
land.
Ganga Ram objrcied but his objection was disallowed bj
order of the District Jndge, dnted 8th May 1906. He therenpon
filed a snit against the decree-holder in the Coort of the Sob-
Judge, who, npon his application, ordered stay of ezecntion nntil
further orders. This was on the 16th May 1906 , bnt meantime
the Ncunr had reported— on the 11th May 1906~that the present
appellant, Sandar Das (another son of the judgment-debtor)
was in possession of the house sought to be attached, and
resisted attaohment. On the 17th May the District Judge passed
an order to the effect that Snndar Das ^* alleged some sort of
*' title and his resistance was apparently in good faith", and that
'* as a regular case was pending before Bawa Mi ban Singh
** beti^een Ganga Ram and the decree-holder ** it was unneces-
sary to proceed under Section 331, Civil Procedure Code.
The order staying execution issued by the Sub- Judge was
withdrawn by that officer on the 19th June 1906, and on
the 21st June the District Judge passed the following
order ir-
" Sundar Das is reported to have gone to Kashmir. Be is,
'* therefor^, no longer in possession of the house and land in
** suit for the purposes of Section 264, Civil Procedure Code. A
*' warrant will now be given to decree-holder for possession of the
** house and land mentioned in the Chief Court decree, dated
" 17th October 1905, under Section 263. Report on 12th
" July 1906."
On the 12th July the Natir reported that as regards the
house No. 1, Lakhmi Chand (another son of the judgment*
debtor) was in possession and refused to give it up to the decree-
holder, whereupon the District Judge ordered that Lakhmi
Chand*s claim to the house should be investigated under Section
831, Civil Procedure Code. This claim is now being inquired
into accordingly.
On the 5th July 1906, Sundar Das filed an appeal in this
Court from the order of the District Judge, dated 2l8t June
1906, and this appeal was admitted by an order in Chambers
which also directed notice on the ground that the order of the
17th May 1906 was open to revision.
Mr. Beeohey, for respondent, contends that no appeal lies
from either of these ordei-s, and the learned councel for Sundar
Das admits that this ooutention is correct. It is contended,
however, that the District Judge erred materially on the 17th
Ocnul907. ] OIVIL JUBGMBNTS— Ko. U8. 543
May 190^ in not proceeding to deal with the ease under Section
831, Civil Procedure Code. To this contention Mr. Beeohey,
who lays great stress on the allegation that these proceedings
are actuated solely with the ohjcct of cauping delay, each of
the jndgment-dehtor's sons being in turn put up to object to
execation, argnes that the District .Judge could oot act onder
Section 331 in face of the order of the Sob-Judge staying
proceedings, an oider which was only withdrawn on the I9th
June. The learned coansel further urged that in any event this
Court should not interfere on revision as the ohjector had other
remedies, e.g,^ by bringing a regular suit or by again resisting
execntioo and so compelling the Court to take action under
Section 331.
To this argument, Mr. Pestonji replies that the very terms
of the order of the 17th May make it clear that the District
Judge in not taking action under Section 331 was not inflnenoed
by the Sub-Jndge*s order staying . execution and that in any case
the latter order would not have precluded action under Section
331 ; that such action wa6 obligatory on the District Judge
under the circumstances ; that it was unfair on the present
petitioner that he should he compelled to institute a regular suit,
in which he would be the plaintifF, when the Code expressly
makes provision for an inquiry into his objections
and claims by a proceeding in which he would be the defendant,
and that in face of the order of the 2 1st June 1906, the petitioner
could not, with any hope of success, resist further execution,
as unless that order was set aside, his resistance would not he
regarded as bond fide.
I have given the case very careful consideration and though
I am reluctant to delay proceedings in any way, I am compelled
to admit the force of Mr. Pestonji's arguments. It may be quite
true, as Mr. Beeohey alleges, that these claims on the part of
'Mul Chand's sons are being put forward for purposes of obstruc-
tion, but the fact remains that on the 17th May the District
Judge held that Sundar Das in resisting execution was acting
in good faith, and under these circumstances the District Judge
was bound to investigate that person's claim under Section 331*
Even if the contention is well founded that the District Judge
could not proceed noder Section 331 so long as the Sub-Judge's
order of the 16th Msy was in force, it is obvious that there was
no obstacle to snch proo^edings on the 21 (sf June 1906, inasmuch
as the Suh- Judge hsd withdrawn bis ord*»r three days previously.
This being so, the subsequent order of the 2l8t June was clearly
wou^, for Siiiir O^i' abidasejrom th3 hoase, au abaeaod
544 ^^^^ JUDOMIBin-No. 119. [ BicoiB
.■■■■... I .. ■■ II .. ■ .1 I » ^
whioh shonld have been presumed to be merely temporary, after
tbe 17ih May coald not posaibly destroy tbe claim to ttie property
whiob, according to tbe District Jadge, be bond fide entertained.
Tbis claim sbould bave been made tbe snbject of iDveetigation in
tbe manner provided by law even tbongb Snndar Das bappened
to be temporarily absent on tbe 2lst Jnne and, tberefore, did
not on SQcb date ask for an investigation. Section 331 of the
Code is in imperative terms and in all oases in wbich its
provisions are applicable, tbese provisions must be given effect
to, and tbe inquiry, wbicb may bave been impossible on tbe I7tb
May, sbould bave been made on tbe 21st June wben tbe qaeetion
of Sundar Das* claim once again came up before the Difitiiot
Judge for consideration. Nor is it any real answer to now nrpfe
tbat tbe petitioner bas anotber remedy, and tbat oonseqnently
this Gonrt sbould not interfere on the revision side. Mr. Peeton-
ji's reply to tbis argument, as above summarised, completely
meets tbe objection. It seems to me, on tbe general aspect of
tbe question, tbat tbe petitioner's objection wbicb bas been
found by tbe District Jadge to have been preferred in good faith,
must be made tbe subject of proper inquiry under Section 331,
Civil Procedure Code, and I must accordingly accept this
petition and direct tbe District Jadge to take action with regard
to it under tbat section. Probably it will be found possihle,
and will avoid unnece«8ary delay, to proceed with tbis claim
pari passu with Lakbmi Oband's claim, but tbis is a matter
wbich I must leave to the discretion of the District Jadge.
Under all tbe drcumstanoea 1 leave tbe parties to bear their
own costs in tbis Court, as I think tbat Sundar Das was himself
to blame, to a large extent, for tbe course which things have
taken.
AppUcaiion aUowed*
No. 119.
Before Mr. Justice Johnstone and Mr. Justice Rattigan,
BAKHT 8AWAI AND OTHERS,— (Plaiotiffs),—
, APPELLANTS,
Versus
SABDAB KHAN AND OTHERS,— (DBfBJDANTs),—
RESPONDENTS,
Civil Appeal No. 694 of 1906.
CuiUnn — Inheritance — Qurmani BUochie of Dera Qhawi Khan tahsO*
Widoum' and ilaughiers' right of inheritance — Muhammadan Law,
Held, that in matters of succession Gurmani Bilochii of the Dera Gbm
Khan tahsil were governed by custom and not by Mohaomadau Law, sn4
Afpilutb Sim.
OOTB. 1907. ] CIVIL JaOGMBNTS— No. 119. 545
that among them a widow is entitled merely to maintenance, and a married
•danghter does not in any case succeed to any portion of her father's ancestral
property in the presence of male collaterals of the latter.
Further appeal from the decree of Lala Mul Baj\ Additional
Divisional Judge^ Multan Division, dated 30«A March 1906.
MorrisoD, for appellants*
Nanak Ohand, for reepondentB.
The jndgmeDt of the Coart was delivere<i by
Battigam, J. — The parties are Gurmani Bilocbis of the Dera 22fui Jofty. 1007.
Obazi Khan tahsil and plaintiffs, who are the widow and the
two daughters of the deceased M. Tayab Khan, sae for possession
^i -IL- of the latter's property. Plaintiff's contention is that
Mahammadan Law is obserred among their tribe. Defendants
who are the brothers and nephews of the deceased assert that
Mahammadan Law is not observed among them, and that by the
ustomary mles which aie so obseiTed neither a widow nor a
danghter has any right to the property. The Conrte below are
ttgreed in upholding this contention and after bearing all that
Mr. Morrison had to urge in support of plaintiffs* farther appeal
we have no doubt that the decision arrived at is correct.
Prom the answers recorded in the Customary Law of the Dera
-Ghazi Khan District, prepared by Mr. Diack, it is clear that
with the exception of certain sections of the Nutkani tribe in
fiangarh, the Bilochis of that district generally, and especially
the Bilochis of Dera Ghazi Khan tahsil, follow not Muham-nadan
Law but Custom. According to the vernncular record of the
Mwayi-am of the Dera Ghazi Khan tahsil, a widow is among
them entitled merely to maintonanoe and daughters do not, in
any case, succeed to any portion of their father s ancestral property
in the prasenoe of collaterals. The rale is apparently rather
different in the Jampur and Rajanpar tahsiU, for in those
iahsiU a danghter is said to be entitled to a share if there is no
male descendant of the deceased's grandfather removed from
deceased's grandfather by the same number of degrees as
herself. But even in these tahsils the Bilocbis obviously do not
follow the strict Muhammadan Law ^.te Customary Law of the
Dera Ghazi Khan District, page 17, answer to question 4.0).
In corroboration of this we have the evidence of plaiotifE's
own witness, Khan Muhammad Khan, who admits that, with
the exception of his own famUy, Gurmani Bilocbis of this
iahsil, follow the rules of the ordinary Customary Law. He
also admits that on the death of one Alam Khan, the deceased a
540 CIVIL JUDGMENTS— No. 11 . BicoaD
daughters obtained no share in the property which went to the
deoeased's brothers and nephews. Then, again, plaintiff's own
agent, Fatteh Mohammad, admitted before ns that his own
sisters received no shares in his father's property, and in his
evidence he confessed that on the death of Hayat, the father of
M. Tayab Khan, the three daughters of Hayat received no
sharo because Hayat had sons who sarvived him.
In answer to this plaintiffs have not been able to establish
a single instance in which a widow has sacceeded to a life-
interest in her deceased husband's property, or daughters to a
share in their late father's property.
Plaintiffs based their claims solely and ezclnsively upon
Muhammadan Law which, they contended, was the law prevailisg
in their tribe, and they expressly stated that they preferred no
claims based upon any customary rule which might be found to
prevail among Oarmani Bilochis of this tabsil. Thero can be
no doubt that the claim so based must fail, for there is no proof
whatsoever that this tribe follow the principles of Muhammadan
Law, whereas there is good evidence in support of the contention
that amongst them Customary Law is observed. But even if the
present claim had been based, in the alternative, upon Customary
Law, it must have equally failed as it is clear from the evidence
on the record, and from the answers recorded in the Dera Ghazi
Khan tahsil Biwaj-i-am that widows get no life-interest in their
late husband's ancestral property, and that daughters do not
succeed to any part of their late father's ancestral property in
the presence of his collateral relations.
We are therefore of opinion that plaintiffs have failed to
substantiate their claims, and that their suit was rightly
dismissed by the lower Courts. We were asked to remand the
case for f author ironiry but we cannot accede to this request.
Plaintiffs were given every opportunity to produce evidence in
support of their case, aud uot only did they fail to produce any
such evidence but the evidence which they did adduce is strongly
against their contentions, and support the statements in the
Riwaj-i-am, Under these circumstances it would be only
unnecessarily protracting the litigation and causing expense to
the parties to order a fnrtber inquiry.
We, therefore, dismiss this appeal with costs.
Appeal dismiaed.
OOTi. 1907. ] CIVIL JDGMBNTS-No. 120. g^y
No. 120.
Before Mr. Justice Rattigan.
RAJ BHAI,— (Defendant),— APPELLANT,
Versus
YAKUB ALI AND OTHERS,- (Plaintipkb),—
REfc^PONDENTS.
^,^^
Civil Appeal No. 1012 of 1904.
Apptal from an order returning plaint for amendment'^Bemand by
Appellat9 Cowt—No appeal from euch order of remand-^ Oivil Procedure
Code, 1882, Sections 562, 588.
Heldf that there is no farther appeal from an order of remand passed
under Section 562 of the Code of Civil Procedure whon such order is made
by an Appellate Court on an appeal under Section 588 of the Code.
Yenhatapathi Naidu V. Tirumali Chetti (»), Yilayat. Busen v. Maharaja
Mahendra Chand%% Nandy (•), Veeraswamyy, Manager, Pitt^pur Estate (»)
referred to. Bam Protad v. Saehi Dassi (•) dissented from.
Miscellaneous further arpeal from the order of A. E, Martineau^
Esquire, Ditistonal Judge, Lahore Division, dated bth Auguit 1904.
Petman, and Roehsn Lai, for appellant.
Sohan Lai, for respondents.
The judgment of the learned Judge was as follows:—
Rattigan, J. — The facts of the case are as follows :— I6tk Fehy. 1907.
On the 22nd April 1904 the Mnnsif passed an order
directing that the plaint should bo returned for amendment,
and that it shonld be represented after amendment within
20 days. On the 9th May 1904 the plaintiff filed an appeal
from the Mnnsif's order in the Court of the Divisional Judge :
This was under Section 688 (6), Civil Procedure Code. On
the 12th May 1904 the Munsif (though informed by plaintiffs'
pl^der that an appeal bad been preferred to the Divisional
Judge) directed that as the order of the 22nd April had
not been complied with, the plaint shonld be rejected under
Section 64, Civil Procedure Code.
On the 6th August 1904 the Divisional Judge accepted
plaintiflFs' appeal from the order of the 22nd April 1904,
and held that the plaint contained no ambiguity and did
not need any amendment. He accordingly remanded the case
to the Munsif's Court under Section 662 of the Code. It
wag pointed out to the learned Judge that the Munsif bad
(») /. L. R., JZIV, Mad., 4A1. (•) /. L. B., XXVI Mad., 51^.
(») /. L R., XXVI JI AIL, 88. (•/ 6 Calc,, W. N., 586.
545 CIVIL JUDGMENTS— No. ISO. I Keooed
already rejected the plaint by the order of the 12th May,
bat the objection was over-mled on the ground that the
Appellate Court had merely to consider whether on the
merits the appeal should or should not be allowed, regardless
of any order that might have been passed after the date
of the order appealed against and after the institution of
the appeal.
Defendants have appealed to this Court, and the first
question which I haye to decide is whether an appeal lies.
Mr. Sohan Lai contends that it does not, and he relies
• upon the final paragraph of Section 688 of the Code which
provides that " the orders passed in appeals under this
Section shall be final.'* His argument is that in-the present
case the order which was passed by the Lower Appellate
Court under Section 562, Civil Procedure Code, was an order
passed on an appeal under Section 588 (6) and that as such
it was final. He distioguishes between the cases where an
Appellate Court remands under Section 562 after there has
been a regular appeal from a decree and the cas<^ where
the Appellate Court remands under Section 562 after there
has been an appeal from an order which is made appealable
by the provisions of Section 588. In the former cases the
last paragraph of Section 588 can have no^applioability, as the
appeal is not under Section 58S, and consequently, clause
28 of Section 588 gives a right of appeal to the High Court
In the latter cases, as the appeal is one under Section £88 any
order passed on that appeal even if it be an order under
Section 562, is not open to further appeal by reason of
the bar prescribed by the last paragraph of Section 588. In
support of his contention the learned pleader refers to Venkatapaiki
Naidu V. Tirtmalai OheUi (*), Vilayat Husen v. Maharaja
Mahendra Ohandra Nandy (■). These cases, especially
the first, are directly in point and are clear authorities in
favor of Mr. Sohan Lai's argument. On the other hand,
Mr. Petman relies on Bim Prasad v. Sochi Bxssi (*) and Veeras-
wamy v. Manager PUtapur Estate (♦). With all due deference, I
coufess that I am not able to follow the reasoning of the learne d
Judges in the first of these cases. It seems that the Sub-
Judge had rejected the plaint as bad for misjoinder of causes
of action and of persons. Plaintiff appealed to the District
Judge who difEered from the view taken by the first Court
and remanded the case for decision on the merits. Defendants
(•)!.
C)^.
I. L. «., XXIV Mad., 447. (•) 6 Oale. W. N., 685.
■ L, B., XXrni All., 88. (*) /. L. R., XXVI Mad., 518.
Ocn. 1907. ] CIVIL JUDGMENTS— Na 10O. 54^
fthereapoQ appealed to the High Coart, and an objeotion was
taken that no appeal lay. The learned Jadges (Pratt and Gridt,
JJ.) oyer-mled this objeotion and observed : " This is, however,
'' not a second appeal nnder Section 584 against a decree bat a
'' first appeal nnder Section 588 against an order passed under
'* Section 562. Snoh an appeal is expressly allowed, and that
** being so, this Court mast consider whether or not there were
" valid groands for ordering the remand." With every respect
I find myself anablcto accept this argameoi The order of the
Sab-Jadge rejecting the plaint was '' a decree " as defined in
Section 2 of the Code, and conseqnently the appeal to the
District Jadge was not an appeal ander the provisions of Section
588. When, therefore, the District J ndge accepted that appeal
and remanded the case nnder Section- 562, he passed an order oo
an appeal which was not presented nnder Section 588. From
such an order an appeal nndonbtedly lay to the High Court
under Secfcion 588 (28), bat this was because the final paragraph
of Section S88 did not apply to the case. While, therefore, I
quite agree that the High Court had power to entertain the appeal,
I respectfally dissent from the ground upon which that appeal
was held to be entertainable. The decision in Veeraswamy v.
Ifana^, Pittapur Estate (1) is, if anything, against Mr. Petman's
oontention. The District Judge had reversed a finding of the
Sab-Colleotor in proceeding under Act YIII of 1865, and had
remanded the suit for disposal on the merits. The order of
remand purported to be nnder Section 562, Civil Prooednre Code,
and the plaintiff preferred an appeal therefrom to the High Court,
The Jadgment of the High Court thns disposes of the objection
that no such appeal lay : '' A preliminary objection has been
^ taken that no appeal lies. In sapport of the objection it haa
'* been argued that the adjadication by the Sub-Collector was not
*< a decree within the meaning of Section 262 of the Code, that
'* this being so the order of remand cannot be taken to have been
" mide under th«t Section, and that inasmuch as Section 588
" (28) of the Code only gives a right of appeal when the order is
" made nnder Section 562, if the order was not nnder that Section,
** no appeal lies'*. The learned Judges thus proceed to point
out that the adjudication by the Snb-Collector was a decree as
defined in Section 2 of the Code, and that conseqnently the order
remanding the case was not one passed on an appeal presented
under Section 588. On this ground, and on this ground alone,
they held that an appeal did lie to the High Court. Obviously,
this authority does not support Mr. Potman's contentions. On
f)I.J&.a,2ZFJJIad,6l8.
550 OIYIL JUDGMENTS— No. ISO. [
the oontrary, it would seem to be an anthoriiy distinctly againrt
him. Both npon principle and upon aathoritj, then, I hold that
in a case each as the present, when the order of remand under
Section 562 is passed, not on an ordinary appeal from a decree bni
on an appeal under Section 588 of the CodCi a fortho? or
second appeal is barred nnder the concluding paragraph ol
Section 588.
As a further appeal will lie in this case from any decree
which the Divisional Judge may eventually pass, I am not called
upon to discuss or to decide certain questions raised bj
Mr. Petman as to the view of the Divisional Judge regarding tbe
plaint, and as the alleged irregularity committed by that oflioer
in reversing the order of the 22nd April 1904, after that order
had been superseded by the order rejecting the plaint, the latter
order having been passed several months prior to the date of the
Divisional Judge's decision on appeal.
I accordingly accept this petition for review and, in lien of
my previous order, I dismiss this appeal with costs.
Appeal dimiml
Enll Bench.
No. 121.
Before Mr. Justice Reid, Chief Judge, Mr, Justice
Chatterji, Mr. Justice Robertson, Mr. Justice JohndoM,
and Mr. Justice Rattigan.
KANHATA IiAL,—(PuiNTifr),— APPELLANT,
'Versus
AmuATK Bam. ^ ^gj, NATIONAL BANK OF INDIA, Ld., DBLHI,-
(Dbfbndant),— RESPOND BNT.
Civil Appeal No. 79} of 1903.
Appsal^ Appeal from order dismiseing suit for non-appear«fM» of
plainHjf-^Revisiofk— Interference with emereise of jurisdiction-^Findtng on wi
i$9ue even when iuffieient does not preclude a Court from determini^ t^
other issues raised^Oivil Procedure Code, 1882, Sections 102, iOi^^Punjeb
Courts Aci, 1884, Section 70
Held, by the Full Bench (Reid, 0. J., and Ohatteiji, J., dissenting) that an
order dismissing a suit for default of prosecution under Section 102 of the
Code of OItH Procedure is not a decree as defined in Section 2 and is QO^
appealable.
Per Beid, C, /., emd Chatterji, J., cfmtra that an order passed under Secticn
10$ is a decree within tb0 meaning of Section 2, and i^ spch is appealable.
H^trn. M67, ] OlViL JUDGMENTS— Ko. 1^1. ^g^
fl«l<l,/urew by the Division Bench (Johnstone andRattigan, JJ.) in a
case where a Conrt in the exercise of the discretion conferred on it by Section
204 of the Code of Civil Procedure had proceeded to give a decision upon all
the issues framed by it though its finding on a particular issue was
Bttflkient for the disposal of the case so far as the Court itself was concerned
that in adopting such a course the Court had not acted either with material
in^iolarity or in excess of its jurisdiction or without jurisdiction within the
meaning of Section 70 of the Punjab Courts Act, and its order was conse-
quently not subject to revision under that Section.
First appeal from the order of T. P. EUts, Esquire, District
Judge, Delhi, dated 26^A May 1903.
Eirkpatriok and Shadi Lai, for appellant.
Orey, for respondent.
Thia was a reference to a Fall Bench to determine whether
an appeal liee against an order of a Coart dismissing a snit for
default andw Section 102 of the Code of Civil Prooednie.
The appeal originally .came on for bearing before a Diyision
Bench (Johnstone and Rattigan, JJ.). The learned Jndgee
being nnable to agree with the view expressed in Pandit Bama
Kantv. Pandit Bagdeo (i)f referred the case to a Foil Bench
with the following opinions :
JoHiraitWi, J.— On the 26th May 1903 the DUtrict Judge of 2lst Feby. 1908.
Delhi dismissed foi* defanlt under Section 102, Civil Procedure
Code, the suit of Seth Kanhaya Lai against the National Bank of
India, Limited. Kanhaya Lai has filed an appeal in this Court
and Mr. Grey, for defendant, has put in the preliminary
objection that no appeal liea. The question is by no means an
easy one. The valne of the snit is high, approaching a lakh of
mpees ; and the view my learned brother and myself are disposed
to take, as at present advised, m*., that no appeal does lie, is
opposed to the Full Bench ruling of this Court in Funddt Rama
Kant Y. Pundit Bagdeo (*). We might simply follow that ruling
and, holding that the appeal is'competent, proceed to hear it ; but
we prefer to refer the point again to a Full Bench, because it
appears to us that certain important considerations were lost
sight of or misapprehended in 1897.
Section 102, Civil Procednre Code, runs thus : —
'*If the defendant appears and the plaintiff does not
''appear, the Court shall dismiss the suit, unless the defendant
"admits the claim, or part thereof, in which case the Court shall
^ pass a decree against the defendant upon such admission, and,
(») 60 P. R., 1897, F. B.
562 CiyiL7UD0lWNT8-Na wi. t
** wbere parfc onljr of tbe claim has been admitted, shall dismiss
^' tbe suit so far as it relates to tbe remainder."
Section 103 of the Code mns—
*' When a snit is wholly or partially dismissed under
^SectioQ 102, the plaintiff shall be precluded from bringioga
*^ frrah suit in respect of the same cause of action. ^ Bat he may
** apply for an order to set the dismissal aside ; and if it be
** proved that he was prevented by any sufficient cause from
** appearing when the snit was called on for hearingy the Court
^' shall set aside tbe dismissal/' Ac, Ac.
If an order does not amount to a " decree" (Section 2, Civil
Procedure Code), it is only appealable if it comes under any
sub-section of Section 588, Civil Piocedure Code.
Orders under Section 103 appear in Snb-section 8 of that
Section, but orders under Section 102 do not appear at all
Therefore an order under Section 102 is not appealable unless it
can be called a *' decree.**
The following is the definition of " decree'*:—
^^ Decree means the formal expression of an adjudioatioo
<* upon any right claimed, or defence set up, in a Civil Ooort,
'< when such adjudication, so far as regards the Court ezpressivg
<< it, decides the suit or appeal. An order rejecting a plaint, or
^ directing accounts to be taken, or determining any queetioQ
"mentioned or referred to in Section 244, but not specified in
'' Section 588, is within this definition ; an order specified in
** Section 588 is not within this definition."
The Full Bench ruling in Pandit Bama Kani v. Pandii
UngdeOy regarding the sonndoess of which I am more than
doubtful, of course supersedes all earlier rulings of this Court ;
but<, nevertheless, I think it will be useful to notice those earlier
rulings. The first appears to h^ Muhammad JZtv. Eyed (0*
There it was held tbat an order under Section 556, Civil Proce-
dure Code, which is in its fiist paragraph for appeals the same ss
Section 102 is for suits, is not a *' decree" and so not appealable.
Then in Bhagwan Singh y.Tari (•), tbe same learned Judge
(Plowden) ruled that a plaintiff who appeals against a decree
made under Section 102, Civil Procednie Code, can only appeal,
as in the case of a decree made in the presence of both parties,
on the grtmnd that tbe lower Court has erroneously decided
some question of law or of fact, or that its procedore has been
irregular and not in accordance with law. The plaintiff, it ▼*■
(«) 118 P. JJ.. 1879. (•) 82 P. R,, 1889.
NotB. 1967. ] CIVIL JUDGMBNTS-Ko. 12l. g5g
said also, has no right to impeach snoh a decree merely on the
ground that he had a good excuse for not being present on the
date fixed in the lo^er Court, the proper and the only way in
which a decree can be impugned on such grcund being by a
proceeding under Section 103. This esse ttbs qooted as an
authority in the Full Bench deciFion now under consideration
upon both the first an d the second questions decided by the Full
Bench. In my opinion its beeringonthe first question, which
is the question now before me, was misunderstood.
Turning to the Allahabad ruling I find one (the later) on my
side and one against me. The earlier case AhlaJch v. Bhagirathi {} )
laid down that an appeal lay from an order under Section
102, Oivil Procedure Code, because Section 103 did not expressly
take away the right of appeal It was not decided whether snch
an order was a decree or not, and thus the reasoning appears to
me incomplete and i myerfect. In Mansah alt v. Nihal Ohand ('),
there is what seems to n:e a complete and logical discussion of
the matter. The case was decided under Section 10 of the
Letters Patent of that High Court, but the ruling is quite in
point. The Court pointed out that the Privy Council had
decided in Ohand Kaur v. Pariah Singh (•) and in an unreported
ruling that a dismissal of a suit for want of prosecution could not
operate as resjudica ta and it went on : —
<' A dismissal in default is not ' the formal expression of
«• • an adjudication upon any right claimed or defence set up*
** within the meaning of Section 2 of the Code of Civil Procedore.
** Indeed, it would necessarily follow from the two decisions of
** their Lordships of the Privy Council to which we have referred
*' that an order dismissing a suit or appeal for default could not
*' be treated as ' a formal expression,' Ac. This view is also
'* supported by a consideration of Section t540. Civil Procedure
" Code.'*
Then the Conrt explains the significance of the second
sentence of Section 540 allowing an appeal from an original
decree passed ex parte.
Then there are two Madras rulings QtJJdnson v. Suhramania
Ayyar (♦) and Bomayya v. Bubbamma (•). The first of these
expressly follows Mansah Alt v. Nthal Ohand (*), and the second
follows or approves the first.
We have next to look at Bam Ohandra Pandurang Naih v.
Madhar Purushottam Natk (•) and Shrimant Sagajirao v. Smith (').
C) J. L. JR., 9 All, 427 (1887). (♦) /. I. B., XXII Mad,, 221.
(») /. L. B., XV All, 869 (1893^ (•) I. X. R., XXVJ Mad., 601.
(•) r. L. R., XVI Calc, 98 P.O. («, /. L. R., XVI Bom., 23 (1891).
C) I. L. B., XX Bom^ 736. (1895).
554 ^^^^ jtJDaiiiniTS— No. isi. t
Id tbe former we haTe on our point only the opinion, which it
was perhaps hardly necessary to give, of Bird wood, J. He naid
an order of dismissal nnder Section 556, Civil Prooedare Code,
was a decree as being an adjudication adverse to appeUant^s righi to
have his appeal heard and as deciding the appeal. This dictwn is
criticised in a Galoatta case to be noted below, and it appears to
me an nnsatisfactory dictum. In Bhrimant Sagajirao t. Bmiik
the qaestion of admissibility of appeal against an order nnder
Section 102 was not discussed or decided ; and the headnote is
thus incorrect ; What happened was that the Court below
dismissed the snit for non-appearance of plaintiff, who applied
for restoration nnder Section 103. The Conrt, finding the order
of dismissal had quoted no section of the Code, held it was a
dismissal under Section 158, Civil Prooedare Code, and so the
appUeation was not competent On appeal, the High Goart raled
that the dismissal wm nnder Sections 157 and 102, and that the
Oonrt below should have heard and decided the application
nnder Section 108. It never mled, so far as I can see, that an
order under Section 102 was itself appealable, nor did it deal
with the ease as an appeal against such order. It directed the
Court below to hear the appUeation under Section 103.
finally we haye to notice the Calcutta cases.
Jagamath Singh v. Budhan (») is concerned with Seetion
556, Civil Procedure Code. The Judges, adverting to the earlier
of the two above-mentioned Bombay cases, said that the order
under Section 556 was not the "formal expression of ao
** adjudication upon a right claimed." It seemed to them rather
" that through his fault the appellant has lost his right to obtain
" the adjudication of his right claimed, that is, the right claimed
** in the proceedings or suit ; " and that << the right to he heaid
** does not come within the definition of a decree," and that ^ bj
•Section 103 and " pro^^^'^K specially* for redress against such an order,"
flection 558, Civil the law appears not to contemplate an appeal against such an
"* ®' order. Anwar Ali v. Jaffer Ali (•) End Amrito Lai MvkefjeeY.
Bam Chandra Boy {}) followed this ruling.
I Tenture to think the Bombay Judge's diOwm might also
be oritietsed in another way. When a suit (or appeal) ii
dismissed for default or on the merits, the Court does nol say
or decide that the plaintiff (or appellant) had no right " to be
heard." It decides, in the case of dismissal for default, thal»
plaintiff (or appellant) being absent and defendant (or
{}) L L, IT., JXm Co/c . 115 0895). (•) /. z. «, 2Z/J/ Cold, 887.
(•) /. L. U., JXIX Calc, 60 (1901) ,
Hcirft. 19C7. ] OIYIL JUDGMBKTS^Na ISt 555
reflpondent) present and the defendant (or respondent) makiog
no admission, the suit (or appeal) shall stand dismissed. In a
ease of dismissal on the merits the Goart holds plaintiff (or
appellant) has not proved his claim. In both oases it was
ready to hear him ; in neither case did it impngn his right to
be heard.
Bnt the learned Judges of the Calcutta High Court have
since then taken the opposite view. In Radha Ncdh Singh V.
OKandi Oharan Singh (*), and in Oosto Behary Sardar t. Hari
Mohan Adah (*), an order under Section 559, Civil Procedure
Code, dismissing an appeal for default has been held to be a
" decree ". In the former case out of fi?e learned Judges Prinsep,
J.y alone adhered to the former veiws of the Court. The learned
0. J. discussed the matter shortly in his referring order, bnt in
the judgments finally delivered in favour of the new view I can
find no discussion at all. The learned C. J.'s opinion seems to
have been based on the idea that the order " did decide tho
appeal ".
Before us Mr. Qrey attempted to draw a distinction
between orders under Section 102 and orders under Section 556
in oonnection with this questioct arguing that, even if the latter
are ^ decrees, " the former need not be so. I am unable to see
any valid distinction.
The judgment in Pandit Bama Kant v. Pandit Bagdeo (*)
was, as regards the present question, short. It referred back to
the referring order and declared approval of the rulings therein
noted. Those rulings, omitting a few not necessary to quote
here, were the two Allahabad cases I have discussed, also the
two Bombay oase^ and the two Punjab cases. In the referring
order, in my humble opinion, Bhagwan Singh v. Pari (^), seems
to have been misunderstood, and Shrimant Sagajirao v. Smith (*),
was also not altogether correctly apprehended. The Calcutta
cases of Jagannath Sing% v. Budhan^ and Anwar Ali v. Jaffer Ali^
were not noticed at all. All this seems to me sufficient ground
for a reconsideration of the matter by another Full Bench.
It has been suggested that in the present case a decree has
actually been drawn up dismissing the suit and awarding costs,
and hence a '* decree " within the meaning of Section 102 has
been passed. I do not think this is sufficient to make the order
a " decree. " All up and down the Code are scattered provi*
(») I. L. B.. XXX Calc, 680, F. B. (1903). (•) 60 P. B,, 1897.
(•) 8 0. W. N. 813 (1908). (♦) 8i P. B., 1889,
(•)/.I.B.,XXBom.,78r,
556 ^^^^^ JUOaUBNTS-No. 121. [ BwttJ)
sions for " orders " in oonjnnction with which costs can be
awarded; and the mere fact that here the Coort below has
. chosen to pat the matter into a decree form makes no
difference.
I not only am of opinion that on a strict oonstrnction of the
sections an order of dismissal nnder Section 102 or Section 556,
Civil Procedure Code, is not a "decree " and is not appealable,
bnt I think also that there are strong reasons for holding that
the legislatare coald not have wished to allow an appeal in sach
cases. An order nnder Section 102 (or Section 556) can be
passed only when plaintiff (or appellant) is absent and defend-
ant (or respondent) present. I! plaintiff (or appellant) was
absent for sufficient reason, he always has his remedy nnder
Saction 103 or Section 558 ; and, where an appeal (or farther
• Section 588, (8) appeal) lies, he even * has an appeal against a refusal to re-admit
Md ^^ Cod^^ ^^^ ^* ^® ^*® absent, not for sufficient reason, the absence was either
contumacious or otherwise deliberate, or it amounted to laches*
[In the present case the absence was undoubtedly deliberate and
contumacious.] Can it be supposed that the legislature intended
to allow an appeal by a plaintiff or appellant against an atder of
dismissal for default, in which appeal the said plaintiff or appel-
lant must ex'hypothise plead ;
I was guilty of laches, but I want my case restored ; or, I
knew the Court would sit that day to hear my case and I oould
have appeared, but I purposely did not ?
The question for decision by the Pull Bench, unless my
learned brother wishes to put it in another way, will be—
Does an appeal lie against an order of a Court dismissing a
suit for default under Section 102, Civil Procedure Code ?
23rd Fehy. 1906. RAinaAH, J.— I agree with my learned brother's opinion in
every respect except that I would prefer to reserve my opinion
upon the question (which does not arise in this case) whether
there is any distinction between the case of a dismissal in de-
fault in the original suit and the case of a dismissal in default
of an appeal. Upon this point I am not prepared to say that
there may not be a distinction between the two cases.
Bnt upon the question now before us I am in entire agree-
ment with my brother and have .but little to add to the reasons
given by him in support of his view that an order dismissing
a suit in default under Section 1)2, Civil Procedure Code, is not
a •* decree '* as defined in Section 2, It is, I need hardly say
with great hesitation and diffidence, that I venture to doubt
the soundness of the decision of the f oU Bench as reported m
HovB. 1907. ] OlVlL-JDGMBN'TS-No. I2t 667
Panddt Bam Ennt v. Pandit B'lg^eo (*), and I Bhould myself
baye oertainlj accepted that rnliDg witboat quesHon, despite
mj own opinion on tbe sabject, had the Fnll Bench given the
qaefltion the connideration to which (as it seems to me) it is
entitled. Bat, speaking with everj respect, I do not think that
the qnestion has been discussed adeqnatelj in the few lines
devoted to it, in the Judgment to which I refer. It is a qnestion
of oonsiderable diflBcalty and upon it we have before as conflict-
ing decisions of very learned Judges of the different High Counts.
It is also a question which arises almost daily in the Oourts
Under these circumstances I venture to think that a more
elaborate consideration tbiin was accorded to it by tbe Full
Bench was merited, and I am the more emboldened to say this
when I find that the learned Judge who delivered the Judgment
of the Full Bench was originally of opinion that an order under
Section 102 dismissing a suit in default was not a "decree"
from which an appeal could be preferred. At the time when
he expressed this opinion the learned Judge (for whose opinion
I have the highest respect) had before him the same authorities
as were considered by the Full Bench, and I cannot in the subse-
quent Judgment find any reasons which can account for his
change of opinion. No doubt, the question was argued more
fully before the Full Bench, but from the Judgment itself it is
not easy to gather the grounds upon which the learned Judge
arrived at the con elusion that his former opinion was incorrect.
So far as I can see, the Full Beech decided the question merely
upon the weight of authority as that authorifjr then stood, and
it is because I am of this opinion that I now venture to express
my doubt as to the correctness of the deciriioc. Since then the
point at issue has been the subject of consideration in other cases
in the various High Oourts, and I agree with my learned
colleague that the decided weight of authority is now in favour
of the contrary view. And in my opinion that other view is
decidedly the more sound.
The very words of Section 102 are, I think, against the view
that the dimiissal of a suit is a decree. Tbe section begins by
enacting that '* if the defendant appears and the plaintiff does
''not appear, the Oourt shall dismiss the suit.** It then
proceeds to enact that if '' the defendant admits the claim or
'* part thereof ** the '' Court shall pass a decree against the
" defendant upon such admission, and where part only of the
" claim has been admitted, shiU dismiss the suit^ so &r as it
'' relates to the remainder." Now, if in every instance, an
(») 60 P. B., 1897 /. B.
^M OiVtL JtJDGMENTS-Ko. 1^ L Kiccofi
order passed under Seotion 102 was to be regarded as a decree,
I see no reason whj the legislature shoald not have enacted
that "if the defendant appears and the plaintiff does not
** appear, the Court shall pass a deoree dismissing the suit,"
eta Prior to the enactment of the Civil Procedure Code of
1882, it had already been decided by the High Court of
Allahabad in Mukhi Y.iFakir (i), and Nand Earn v. Muhammad
Bahhth (*), that an order under Seotion 556 of Act X of
1877 dismissing an appeal in default, " though it means
** the formal expression of the Court's decision in respect of the
** default of the appellant, does not come within the definition of
'* a deoree in Section 2 of the Civil Prccedore Code. *' In view
of these decisions I consider that, if the legislatuce had when
enacting Act XIY of 1882 intended to embrace orders under
Section 102 dismissing suits in default within the definition of a
** decree, ** they would have used words clearly and unmistaktbly
indicative of that intention. This consideration taken in con-
junction with the argnments expressed in my learned brother's
order makes it quite clear to me that an order dismissing a suit
in default under the section referred to was not intended to have
the effect of a " decree ". I also agree that such an order cannot
reasonably be construed as *' the formal expression of an adjadi-
'* cation upon any right claimed or defence set up." It is, at moft^
an adjudication (if that term can be so applied) that the plaintiff
has lost his right to have an adjudication upon his case.
The decision of the majority of the Fnll Bench of the
Galcutt-a High Coort reported in Radha Naih Singh v. Ohandi
Oharan Singh (•), is not, if I may say so, very satisfactory. The
question is not discussed and the conclusion appears to me to be
arrived at arbitrarily and upon d prion grounds. Personally
I regard the dissenting judgment of Prinsep, J. as more
convincing.
Upon the whole I think that the balance of anthority is
against the view which was accepted by the Full Bench in
Fandit Bama Kant v. Pandit Bagdeo (*), and upon its merits the
question which my learned brother suggests that we should refer
to a Fnll Coort, should, in my opinion, be decided in the nega-
tive. For the reasons given I concur with him that the question
should be referred for further consideration, but as the decision
which is now impugned was that of a Full Bench of 3 jndges,
the present reference should, I think, be decided by the
Fnll Court.
(M I. L. B., Ill All., 882, (») 1. L. «., XXX Cal, 660 .P. B.
(•) I. L. B.. // AU., 616. (*) 60 P. B., 1897, J. B.
KoTB, 1907. ] 0I7IL JUPGHBHTS-No. UI. 559
Upon the reference (he followinfr opiniona were recorded by
the learned Jadges oonstitating the Fnll Bench :—
Chattbbji, J.— This case has been referred to a Poll Bench "* Mag 1908.
of five Jodges in order to consider whether the decision of a
preyions Fnll Bench of this Court in Pandit Soma Kant v. Pandit
Bagdeo ( 1) thtit an appeal lies from the diamissal of a snit for
defanlt under Section 102, Civil Prooednre Code, is correct.
Tbo question pi-oponnded for the present Pall Bench by the
learned Jadgees referring the matter is
Does an appeal lie against an order of a oonrt dismissing a
snit for default under Section 102, Civil Procednre Code P
The referring order gives several reasons for thinking that
the view of the previous Pull Bench is erroneous. 1 shall refer
to some of these hereafter, hut one of the grounds is that the
balance of authority is now against that opinion. I gbaU
therefore begin by a review of the leading authorities bearing
on the question before ns.
I may mention here that in Pandit Rama Kant v. Pandit
Bagdec («) a distinction is drawn between orders dismissing
appeals in defanlt and orders dismissing snits. I use the term
order in ite ordinary grammatical sense and not in the sense
which it is used in the Code of Civil Pnnjedn re. The object of
drawing the distinction evidently w», to confine the effect of
the decston of the Pull Bench to the latter cla«, of ca«« which
abne was before it for adjudication. Mr. Jnstice Johmitone i.
o opinion that there is practically no difference between the two
cl»s«« and authont.es relating to both have been discussed and
freely rel.ed on in the referring order. The exclusion of appeals
dismmissed in default from the scope of the pevious Pull Bench
decision does not, I «hi«k, militate against its correctness on the
point actually decided, but on further coneideretion I am disposed
to concede that the Une of demarcation between the two classes
w practically impalpable and that rulings on appeals dismismrf
m default may with advantage be referred to in disposing of the
question before us. The consequences of non-appearanc. of the
plaintiff or of the appellant are very similar if not identical and
the same procedure for explaining the non-appearance and for
re-admission is provided for both. The only tangible difference
IS that in Section 566 the words « for default" occur which an
not found in Section 102, but if this has any effect, I should
think it makes the position of the defaulting appellant some-
what weaker than that of the defaulting pUintiff, ao that
(•)<»P.JJL,lWri'.j».
560 ^^^^^ JUDGMENTS- No. 121. [ Bioobd
raliogB in faTonr of the former may safely be applied in fayonr
of the latter*
Coming now to the anthorif ies they may I think be daosified
thns —
Bulinga on Section 102, Civil Prooedare Code : Ahlahk
and another v. BhagtratU (0> Bhagwan Singh v. Pari (•),
8aMb Dttta t. Boda (•), Gosto Behary v. Bari Mohan (♦).
In all these caFos it was held that an order of dismissal
onder Section 102, Civil Procednre Code, is a decree and is
appealable as snch. In Bhagwan Singh y. Fart (^), as pointed
ont in Pandit Bama Kant v. Pandit Bagdeo (»), page 263,
the point is assumed and not aotoally decided.
In Sahib Ditta v. Boda (^), the Fall Bench case was simplj
followed.
The contrary view, that the dismissal nnder Section 102 is
not a decree and is not appealable, was taken in the following
cases. Amrito Lai Mukherjee v. Bam Chandra Boy ('), Oilkineon
and another v. Suhramania Ayyar ('), Maharaja Vizianagram 7.
Ling am Krishna Bhupati and others (^)y and Somayya ?<
Buhbamma (•).
In Oilkinson^B cape:— The Judgment of their Lordships of the
Privy Oonncil in If «««amma^ OAan(? Kouty. Pertap Singh (*°)f
was relied on for holcling tie dih missal of a snit under Section 102,
Civil Procednre Code, not to be a decree. In the next case this
was followed, while in the last case, which relates to a different
question, it is simply stated, mentioning Oilkinson'i case, that an
appeal does not lie.
In the Calcutta esse : two lulings under Section 556, to be
presently mentioned, were followed.
Btdings on Section 556, Oivil Procedure Code : — Muhammad
AH V. Hyat (^i), Mussammat Avma v. Mussammat Aikari
Begam (^ *)t Mansab Ali y. Nihal Ghand {^^)fJaganNath Singh 7»
Budhan (* *), Anwar Ali v. Jaffar AU (" •).
The first Punjab case was one under Act X of 1877
before it was ameudod by Act XII of 1879 and the defini*
tion of decree in it was more comprehensive. Nevertheless
it was held that the order of dismissal of an appeal in
(•) /. I. B., rx All. 487. {•) 12 If. L. j7m.
(•) 82 P. B., 1889. (•) 7. L. B.. XXVI Mad., 699.
(• 88 P. B., 1902. («•) I. L. B., XVI Ool., 98.
(*) 8 0. W. N, 318. (> 0 118 P. B , 1879.
(») 60 P. B., 1897 P. B. (") 9 P. B., 1888.
<•) /. L, B., XXIX Oal^ 60. (« •) /. B., XV All., 869.
(J) I. L. R., XXII Mad., 221. (*♦) /. B., XXUI Oal^ 116.
O«)l.£.B.,XZni0oI.,829.
KoT». IflOT. ] CIVIL JUDGMBNT8— No. 121. 561
defanlt ehonld not be treated as a decree and no decree
drawn op. The second Panjab case was under Act XIV of
1882 and took the same view.
In Mansah AlCa case, which was not exactly one nnder
Seofion 556, the scope o! that secMon and Section 102 was
considared. The Pfivy Omaoil Jail<mm^ iq Miiisammal
Ohand Kours case, cited above, was relied on by the party
oonteadiog for the principle that di-imissals nnder those
seotioos do not amoant to decrees. The Ooort held that
81 )h dismiss kh do not atn aat t> aljnlicitioDa upon any
right claim3i or d)feQce set up within the meaning of Section 2
of the Code. *
In the Calcutta cases:^The Bombay case Bam Chandra
Pandurang Y. Madhav Purushottam Naik (i) was differed from,
and it was held that a dismissal under Section 556 did not come
within the definition of a decree nnder the Code.
The contrary view was taken in the following cases :*-
Badha Nath Singh v. Ohandi Oharan Singh (') Ram Chandra
Pandurang v. Madhav Pwru$hottam Naik (*).
The Brst was a Full Bench Judgment and the two Calcutta
cases JaganNcUh Singh y. Budhan (^)tixid Anwar Ali y.Jaffar
Aii (*) were over-ruled and the Bombay case approved (vide
referring order at p. 663). In the latter case, however, the
expression of opioion was given by only one of the two Judges
forming the bench.
I have given the leading authorities io the above list. It
will be seen therefrom that those bearing directly on Section 102,
Civil Procednre Code, are comparatively few. But Including
the rulings on Section 566, which, in my opinion, ought to be
considered in this connection as they generally have been in the
past, the present position on the question before ns may be
roughly summed up thus —
The later decisions of the Allahabad Court and the Madras
Court are against the view propounded in Pandit Bama Kant v.
Pandit Bagdeo. The Calcutta Court over-ruling previous
dedsions to the contrary is now clearly in favour of dismissals of
suits, as well as appeals for non-appearance being treated as
decrees and therefore appealable! The Bombay Court has not
given any dear opinion but it has not up to the present said any*
thing contrary to the view expressed by Mr. Justice Birdwood
(*) I. L. K., Xri Bom., 83. (•) I. L, i?., ZZIII Oal^ 116.
(•) /. ii. A, XXJC 0(U., 660. (*) I. L. B^ XXlll Oal., 839,
562 OIVIL JUOOMBNTS-Ko. 181. [ Bioon
in Rama Chandra Pandurang Y. Madhav PurushoHam. Our Court
has o^ oourse up to the present followed the Fall Bench decision
in Pandit Bama Kant^i case bat ezolnding it from oonsideration
there is not I shonld think anj weight of anthoritj against the
opinion of the Fall Bench. The case of Mansah AU wu
considered in the Fall Bench Jadgment and the only later
Judgments taking the same view are those of the Madras Conri
The two Galcatta Jadgmenta in /agan Nath Singh and Anwar
AlCa cases are not noticed in the Full Bench Judgment, thongh they
were probably considered, bat they and the Judgement in Amrito
Lai Mukherjee*s case (^), have been soperseded by the Fall Bench
Jadgment in Radha Nath BingVs 'case, and that given in Qotto
Behary v, Hari Mohan Adah (*). We do not thns stand alone
in holding the opinion that an order of dismissal nnder Seotioa
102, Civil Procedare Code, is a decree, and I am doabtfal whether
my brother Rattigan is right in saying that the balanoe of
authority is against that view. I do not think it is.
The main point underlying the decision of the qnestion
before ns is whether or not the order of dismissal is a daoree.
Most of the authorities decide it in the affirmative or negatiTe
without giving any reasons, bat in Mansab Alt's case and in
Qtlktnson*s case the matter is discussed somewhat folly so also in
the Calcutta Full Bench Jadgment. The two former cases cite the
Jadgment of their Lordships of -the Privy Council jn Mussanmai
Ohand Kour v. Partap Singh as supporting their view, and grest
stress was laid on it in the argument before us. The process of
reasoning is something like this: Their Lordships laid down that
a Judgment by default under Section 102, Civil Procedare Code,
does not operate as res Judicata. But a decree would operate as
such, hence their Lordships must have held that a dimissal under
the section is not a decree. Not being a decree it is not appealable
under Section 540, Civil Procedure Code. It was also pointed
out that there can be no adjudication when the law lays down
that on plaintiff being found absent the suit must be dismissed.
Lastly, it was broaght to our notice that the order under Section
102 is not final within the meaning of Explanation IV of Section
13 of the Code of Civil Procedure.
If their Lordships of the Privy Council have laid down by
necessary implication in the case cited that the order under Section
102, Civil Procedure Code, is not a decree, the matter is conclnded,
(•) I. L. B., xnx Out., 60. (t) riii Oai., r. jr. su.
KoTB. 1807. 1 CIVIL JUDGMBNtfl-Ho. itU 568
and there can be no further argoment. I must therefore
examine the Privy Council Judgment before I proceed further.
The material faots in Muasammat Chand Kour v. Pariah
Singh are that two of the reversioners of Mussammat Ohand
Kauff who was a Hindu widow in possession of a widow's estate,
brought a suit against her in 1878 for an injanction restraining
her from alienating her property which they alleged she intended
to da That suit was dismissed in default of appearanoe by
the plaintiffs. In 1879 the widow made a gift of the property
to a third party, and the reversioners in body sned for a decla-
ratory decree invalidating the gift in so far as their reversiouary
rights were concerned. It was pleaded that the suit was barred
by the previous proceediogs. Their Lordships over-ruled the
contention on the ground that the previous order barred only the
two plaintijGEs who brought the former suit and not the others
from bringiDg a frefeh suit on the same cause of action, and that
the cause of action in the new suit was entirely distinct, and did
not exist at the time of the former claim. They said :— -
" The provisions of Sections 102 and 105 of Act Z of 1877
"require thereforo to be considered. The dismissal of a suit
"in termq of Section 102 was plainly not intended to operate in
" favour of the defendant as res Judicata. It imposes, however,
" when read along with Section 103, a certain disability upon the
"plaintiff whose suit has been dismissed. He is thereby predud-
"ed frcmi bringing a fresh suit in respect of the same cause of
"action." • • • ♦ •
Now there is nothing said in the Judgment as to the dis-
missal under Section J 02 not being a decree. The concention
that because they say the section is not intended to operate as res
Judicata^ they mean thereby also to say that the dismissal order
Tuder it is not a decree, appears to me to be a very far-fetched
argument and, at best, an inconclusive one.
In the first place if their Lordships had meant to lay
this down there is no reason why they should not have
said so, the point being a simple and obvious one, which
would have supported their dictum. It cannot be lightly
assumed that they missed saying it throngh inadvertence.
In the next place we ought to take their remarks as a whole
ftud uot pick out a portion apart from the context and base
^ argument thereon. I cannot refrain from quoting nere
co^in observations of the Lord Chancellor of England in a
teoent case which have a material bearing in this connection.
His Lordship said ''that cvciy t'cd^mcnt mutt be le&d aa
5((4 C'l^^ JUD0MBHT8— No 1^1. [ ftKMii
• — "
** applicmble to tbe facts proved or aseDmed to be proved, ainoe
'* ihe generality of the expresfiions which may be there are nofe
''intended to be ezpositiotis of the whole Inw, hot governed and
" qualified by the particalar facte of the case in which ench
" expresaioDS are fonnd,*' (Qtam v. Leathan (*) at p 606.) We
nee<l not perhaps go so far as the Lord Chancellor io constming
the Jodgment of the Privy Goaocil. It. is obvious that their
Lordships were considering Section 102 and 103 together ; in
fact they ezpreesly say so and from snch consideration,
interpreting Section 102, I venture to think that the sentence
in which Section 102 alone is mentioned and is said not to be
intended to have the effect of res Judicata cannot be torn from
the context and treated as a constrootion of that section singly
without reference to anything else. The very next sentence
contradicts puch an argument, for the effect of Section 102 is
deduced by comparing and taking it in connection with Section
103. How can it be said tbat this part of the construction of
Section 102 is based upon a consideration of both sections, bat
that what is said in the previous sentence stands by itself and is
based upon a consideration of Section 102 alone P In fact the two
sentences taken together contain a ooroplete construction of the
section, vis^ that it does not operate as res Judicata^ but precludes
a second suit on the same cause of action, and each sentence ia
incomplete without the other. The fundamental and elementury
rule of construction of documents, viz^ that it should be read and
construed as a whole is violated to my mind if we take the one
sentence referring to Section 102 by itself and ignore the
following one. I have no doubt in my mind that their Lordships
had Section 103 in their minds when they penned the sentence
and that their whole opinion was based on a comparison and
consideration of both lections. I hold accordingly that their
Lordships did not lay down that dismissals under Section 102 are
not decrees lender the Code of Civil Procedure.
Nor does such a consequence flow necessarily, from their
Judgment. A decree may not in every case have the full effect
of res Judicata. For exemple, a man sues for certain property
as the son of the last heir and his right is denied and issnes are
framed. Suppose the case is compromised by giving him a sum
of money in lump without admitting his right, sod a decree is
passed on that compromise. Such a decree would not operate as
res Judicata by establishing the plaintiff's right as son in future
eontesis with the same defendants. Even if this were not so, the
(0 L. A. App., Oas (1901) 486 ai p. 506.
No7B. 190f, ] OIVIL JUDGMBNTIB— No. 121. 5((|
operation of a decree maj be limited by statntorj proyision and
that alone will be the goide in jadging of its effeote. Here
Section 103 has laid down the oonseqnences of a dismissal under
Section 102, the decree nnder the latter section (assuming it to
be such eX'hypothesi) being one of a very special character. The
rejection of a plaint under Section 54, Civil Procedure Code, is
another illustration in point. It is a decree but does not operate
as res Judicata because Section 56 limits its efFects.
The whole argument based on the Privj Oouucil Judgment
appears thus to me to be untenable.
On the question whether or not a dismissal under Section
102 is an adjudication so as to satisfy the definition of the
term decree in Section 2 of the Code, a good deal can be said
on both sides. Eminent Judges ha?e held that it is, while
others hold that it is not. Speaking for myself, I see no
insuperable difficulty in holding such a dismiss U to come within
the category of an " adjudio^tioa." The word adjuiica'ion is
not defin.ed in the Code. In B a gland it means, giving, or
pronounoiog, jadgment or debtee (Whariori's Law Lexicon); the
jadgmeut or decision of a Oourt {Stoeet*8 Law Dictionary) ; and
the term is principally used in Bankruptcy proceedings. In
common parlance it may be said to mean a deliberate determina-
tion by the judicial power. (Webster). It connotes an exercise of
the jadicial mind in coming to a decision.
Now according to the contention before us, which I under-
stand the learned referring Judges to favour, the decision of a
case in a certain way inflexibly laid down by statute cannot be
treated as an adjudication. On plaintiiSE*s failing to appear, his
suit must be dismissed, and there is no option left to the Oourt.
But so must it be decreed in whole or in part if defendant
admits it in whole or in part. In neither case is any exercise
of the judicial mind required. The Oourt is compelled to record
an order provided by the law. I confess I do not see any
material distinction between the two cases, or if there is any .
distinction, it is one in degree and not in kind. In the one
case the plaintiff being absent, the Oourt declares him disentitled
to the relief claimed by dismissing the suit, in the other the
Goart grants the relief claimed to the extent admitted by
defendant. There being no room left for the exercise of the
judicial mind in either case, there is no impropriety in my
opmion, in treating the adjudication as involved in th3 order
passed by operation of law. I agree with the majority of the
566 CIVIL JUDGMENTS— No. 121. C tosoM
Judges forminj^ the Fall Bench in Radha Nath SingVe case (*),
that the word decree shoald not receive a narrow conBtmction,
and that we shoald be chary of adopting one that woald lead
to injofltice. I shall advert to this point farther on. I treat
this Calcatta Judgment as one bearing on the scope of Section
566, Civil Procednre Code, as the language of all the Judges
clearly; shows, and look upon the reference to the decree
rdrawn upinlthatcase by the learned Chief Justice as merely
illustrative of his argument and not as limiting it to that
decree.
If the contention is admitted it will have to be conceded
that where a suit is partly dismissed in default and partly
decreed upon admission, the order under Section 102 will
have a twofold character and will be partly a decree and
partly, not a decree, and that plaintiff will have no right of
appeal (aa regardu the dismissed part) while he or the defendant
will have that right as to the portion decreed (on the ground
of mistake, etc). This would certainly be an anomaly, though
I adn it the diflBoulty is not intuperahle. I think a construction
that leads to an anomaly is to be avoided unless we are driven
to it by the plain language of the enactment. The language
here is certainly not plain, and there is much diversity of
ludioial opinion ou the narrow construot.ion sought to be put
on the term decree by which alone the dismissal under Section
102 can be eroluded from the category of decrees. In this
conBict of opinion I should be disposed to adopt the more
liberal construction, and would adhere to the one adopted
in the previous Full Bench Judgment and deprecate any
departure from it.
Moreover, it is by no means clear that an adjudication in
the sense contended for is not often involved in dismissal ordern
under Section 102. Take an instance for example in which
the plaintiff is not present in person but is represented by a
pleader or mukhtary as he is allowed to be in all cases, but
those in which his personal attendance is specially required,
and the Court holds that the pleader or muhhtar is not properly
authorized or is diaqualiBed from '[appearing, and plaintiff is
in consequence held not to have appeared, and his suit is
dimissed. Here the non-appearance of the plaintiff is itself a
matter adjudicated on, and it may be, at the instance, and on
the objection, of the defendant, and the dismissal is the result
of thab adjudication. How o&n such an order be excluded
(») I. X. R., XXZ Col,, 660.
NbTB. IW ] CIVIL JUDGMfeNT8-No. 121. 5^^
from the category of decrees ? and if it cannot, is the effect
of the contention to be limited to cases in • which | such
questions do not arise P If so, what is the special merit of a
construction that will not apply to the whole class of
dismissals ander Section 102. A case of this kind is mentioned
by Mr. Justice Bhoshyam Ayaogar in Somayyav. Subhamma (^).
In Boebuck v. Henderson (<), the Divisional Judge ref osed to
allow an advocate to represent the appellant before him. In the
present case I understand the plaintiff to say that he was quite
wrongly held to be in default. Sach instances can be maltiplied
to anj extent.
This brings me to the consideration of another point
oonneoted with cases of the sort above described. What is the
plaintiffs' remedy in such cases if the Coort's order excluding
the representative is wrong ? It is useless for him to apply for
re-admission under Section 103 for ex hypotheeif not intending to
appear personally and his representative being wrongly
prevented from appearing, there is no snfiBcient cause for his non-
appearance. His complaint is that he was not in default and
that his agent or pleader was wrongly not allowed to appear.
It seems to me that his only remedy is by appeal, and if an
appeal is not permitted, he is left without any remedy at all,
unless possibly a review is allowed, a point not urged or discussed
before us and which cannot be regarded as settled.
The argument based on explanation IV of Section 13 also
does not appear to be of much force. The order under Section
102 is final as far as the Court passing it is ooncerned, as it
cannot alter it unless an application is made under Section 103
and the objections of the opposite party are hesrd and the
inquiry, if any, necessary to substantiate the grounds of the
application is completed and results in the plaintiffs' favour. In
the case of decrees generally a review of judgment is the only
means by which the Court can interfere with its Judgment. For
a decree under 102, Section 103 supplies the procedure under
which the Court can set it aside. In fact where explanation 4
speaks of orders, which the Court can set aside without a review
it refers to interlocutory orders and not orders disposing of the
ca^e by which it is withdrawn from the Court's cognizance. A
Court dismissing a suit under Section 102 ceases to exercise
jurisdiction over it and is not competent to fake cognizance of it
again, unless it is moved under Section 103. Further, in a
Calcutta case, Baj Narain Purhait v. Ananga Mohan BAaiu^art (•),
(0 I. L. R., XXn Mad^ 699. (>) 54 P. R., 1896.
(») X. L. A, ZI7I Cat., 598.
568 cmL juDGHXirrs— No. i^i. [ rioobh
a reyiew was eniertaiDod witboat an application ander Seofcion
103. If this is correct, it supports the view I am taking.
Again, that constraction is preferable, unless forbidden by
the plain language of the statote or bj necessary implication
from it, which is most consonant to jnstice and which avoids
grave danger of injuntioe to the litigating pnblic. Now suppose
a big firm of bankers or merchants has branches at difiPerent
stations where it is represented bj agents. A large sum of
money is due to the members of the firm at one of the branches,
and a suit is instituted for its leooTery. Though arrangements
are made for plaintiff being represented by the agent and by a
pleader, it happens that both fail io appear and the claim is
dismissed. It mi^ht happen that the principals might not
know of this order until after the expiry of thirty days and the
right to apply under Section 103 has become hopelessly barred.
It would lead to grave injustice if an appeal is not permitted,
and the plaintiff not allowed the benefit of the elastic provisions
of Section 5 of the Limitation Act.
On the other hand, there can be no corresponding harm if
an appeal is held to lie. No one cm be really injured by the
Court of appeal being able to consider the oorreotnoRS of the
lower Court's prooedore and of the law applied by it. The
utmost that can be urged against it is that an appeal lengthens
the proceedings to a certain extent, but this is of no moment
whatever when we consider the great injury that may be
inflicted on the plaintiff by making Section 102 not appealable.
No one can have a vested right to an advantage which entails
damage and injustice on his opponent. The illustration given by
my brother Johnstone to phow the absurdity of giving a right
of appeal to a plaintiff, who has been contnmaoiously absent,
does not seem to me, with great deference to him, to be quite
apposite. We are here diRcassing a general rule about the
right of cognizance by the Court of appeal. The illustration
relates to a point on the merits of a partionlar appeal. Of
course if the plaintiff's absence has been negligent or contumacious
the Appellate Court will dismiss tho appeal and uphold the
dismissal by the lower Court. Bat it cannot bo laid down that
contumacious or negligent plaintiffs shall not have the right
of appeal, and, if they do not exhaust the whole olasR of plaintiffs
against whom orders under Section 102 can be passed, how can
the argument hold ? Besides, no plaintiff will appeal admitting
his own contumacy or negligence, and there will be no means of
finding out his delinqnencies until the Appellate Court goes into
the merits, which it can do only after entertaining the appeal.
MwiU 190?. J orVIL JUDGMBSTS— No.181. 5f g
I need not say much on the history of the Section. Under
Ad VIII of 1869, dismissals of snits for default of plaintifE'e
appearance and ex parte decree were expressly made non.
appealable. In Act X of 1877 there was no corresponding
provision forbidding appeals and so also in Act XIV of 1882,
and the High Courts began to hold conflicting opinions as to the
rifcht of appeal in both classes of cases. For example the
Allahabad Court held that no appeal lay from an ex parte decree,
LaU Singh and others v. Kurijin (i). Our Court, however, steadily
ruled that ex parte decrees were appealable. Vide, Radha Prashad
V. Hirde (>), Ohtmi Lai v. Bodar Mai (**), and Oourtqf Wards v.
Fatteh Singh (*). The Allahabad Pull Bench Judgment was
over-ruled by another Full Bench, Adjodhia Pershad v.
Balmokand (»). The matter was setth d by Act VII of 1888
adding the last clause to Section 540, but the conflict of opinion
in respect of Sections 102 and 556 remains unsettled by the
Legislative up to the present day.
The abrogation in the new Procedure Codes of tbe prohibition
against appeals in such oases existHg in Act VIII of 1859 seems
to tell strongly in favour of the view that orders under Section
102 are appealable, which is not safficiently rebutted by the
Legislative not having dealt with this class of case as it has with
ex parte decrees, it not having at the same time declared them to '
be non-appealable. The matter is complicated by numerous
considerations arising from amendments of various sections
from time to time, but at best, the argument does not help those
who allege the non-appealable character of dismissals under
Section 102.
Reference may here be made to orders of a similar nature
to those under Section 102 being held to be appealable, viz.,
dismissals under Section 136 and Section 381, the provisions of
whicb are analogous. It has been held that they are decrees and
appealable. See Khushali Mai v. Fala Mai («), and Williams v.
Brown C), The argument is not conclaaive, but goes some way
to support the view that orders of dismissal under Section 102,
Civil Procedure Code, are decrees and capable of appeal. See in
particular the construction of the word decree by Petheram, C.J.,
in the case last mentioned.
To sum up : The point before us is one of pure procedure.
The Judgment of the Full Bench in Bandit Bama Kant v. Pandit
(») i. L. B , ir All, 887, J*. B. ( *) 75 P. B., 1881.
(•) 60 P. B., 1888. (») /. L. B., VIII All., 864.
(>) 2 P. B., 1886. (•) 43 P. B., 18«a
(»)I.X.B., rillAU^tO^
570 ^I^^ JUBOMENTS-No. 121.
Bgdeo (i), has setiled the point for this Proyince for the last
ten years, and no wrong or injury or iDconveoienoe to the public
is shown to have resulted therefrom. I should think therefore
that the ruling ought to be upheld, unless it is shown to be
flagrantly wrong or olearly opposed to the language of the Code,
or the intentions of the Legislature. I have examined the main
arguments for the opposite view with care, and in my opinion,
they fail to oonvinoe me that the Fall Bench Judgment in
erroneous.
Making the utmost allownnce for the arguments, I hold that
they are inconclusive, and the best proof of this is the conflict of
judicial opinion on the question. Under these oircumstanoes I
think we should maintain that Judgement which has for the last
ten years fixed the law on the subject. There is no knowing if we
set it aside now on grounds that have been urged before us, that
we may not have to reconsider the point again if other Judges
think there are flaws in our reasoning and prefer the ruling of
the old Fall Bench. Stare decisis is ordinarily a good principle,
and I can think of no case where we can act upon it with more
propriety and advantage than in the present instance. Perhaps
it should not also be forgotten that a new Code of CivQ
Procedure is under the consideration of the Legislature.
I accordingly adhere to the view I expressed in Rama Kanfs
case and reply on the point referred in the affirmative.
Uth May 1906. ^^^* O.J.— I concur with my brother Ghatterji. The
Judgment reported as Mans<ib Alt v. Nthal Ohand (*), is of Judges
for whose Judgments I have great respect, but I concur in my
brother Ohatterji's view of their interpretation of the Judgment
of their Lordships of the Privy Council in Ohand Kaur v. Par^o^
Singh (^). Their Lordships considered Sections 102 and 103 of
the Code together, holding that the dismissal of a snit in terms
of Section 102 was plainly not intended to operate in favour of
the defendant as res judicata^ bat that it imposed, when read
along with Section 103, a certain disability upon the plaintiff
whose suit was dismissed, precluding him from bringing a fresh
suit in respect of the same cause of action, and I concur in the
reasons recorded by my brother Chatterji for holding that their
Lordships' Judgment does not support the contention that an
order of dismissal under Section 102 is not a decree. OUkinson
V. Suhramama Ayyar (•), merely followed Mansah AWs case.
A plaintiff has to open his case and protanto the burden is upon
him. If he fails to discharge this burden, whether from ab««Qoe
(»)60P.B.,1897,F.B. (•) I. L. R., XVI Ocd,, 98, P. 0.
(•) J. I. B^ ZV JUL, 369. (*) I. L. B., XXll Mad 221,
NOTB. 1907. ] CIVIL J(JDGMBKTS-No. 121. 571
of eyidoDoe or from personal absence, his suit is dismissed
and there is an adjadieation that he has failed to
establish his claim. In Radha Nath 8ing*8 oase Prinsep, J.,
recorded no reasons for dissenting on this point from the rest of
the Fall Bench, who adopted the reasons recorded by Maclean, O.J.,
in the referring order. My brother Chatter ji has, moreover,
recorded weighty reasons, in which I concor, for not overruling
Bama Kant's case, even if it be held that the balance of authority
either way is eVwii or slightly against that ruling. To upset
Full Bench decisions on slight differences of opinion is, where
no general injustice or hardship is established, in my opinion, a
practice to be discouraged. Finality and certainty are desirable
in the interests of the public.
For these reasons my answer to the question referred is in
the affirmative.
ROBBBTSON, J.— I confess to having felt very great doubts ISfh May 1906.
as to the correct answer to the question referred to the Full
Bench ; but for my respect for the principle of stare decisis
my difficulties might have been somewhat less.
The question referred is —
Does an appeal lie against an order of a Court dismissing
a suit for default under Section 102, Civil Procedure Code.
Now clearly if this is an order, no appeal lies. The question
is, can it be held to be a decree P
A decree is the " formal expression of an adjudication upon
** any right claimed or defence set up, in a Civil Court, where
" such adjudication, as far as regards the Court expressing it,
" decides the suit or appeal."
Now after giving the matter my most careful consideration,
I am unable to come to the conclusion that a dismissal under
Section 102 is in any way an adjudication upon any right or
defence. With all deference to the views expressed in Badha
Nath Singh v. Ohandi Oharan Singh (*), if those views were
intended to apply generally to dismissals under Section 102, 1
should be unable to concur with the views expressed by the
learned Chief Justice in his referring order at page 663. It has
been argued, however, and 1 think with much force, that the
views therein expressed refer to the particnlar case before the
Court only which was one under Section 556, and in which the
order passed went beyond a mere dismissal of the appeal in
default; inter alia in that it decreed interest on the costs against
the appellant.
i')i.L. i^xxxo<a^e$o.
572 ^^^^ JUDGIIBNTS No. 12L [ Biooao
It appears to me tbat so far from a dismissal acder Secfckm
102 being an adjadication, the one thing which is absohtely
forbidden by the section is any attempt at adjudication. The
entire evidence might be on the record, the case for the plaintiff
might be overwhelmingly strong, yet if the plaintiff is not preeeni
the Conrt is absolutely forbidden to express, formally or
otherwise, any adjudication upon any right claimed, even
though the existence of such right may have been proved to the
hilt. The Court can and must do one thing and one thing only,
it must dismiss the suit without adjudication. Further, the
order so passed does not as far as the Court passing it is concerned
decide the suit, and here 1 must differ from my learned brother
Chatter ji. For Section 103 is equally peremptory with Section
102. Under Section 102 if the plaintiff is absent^ it does
not matter why, the suit must be dismissed except in so far
as the defendant, if present chooses to admit the olaim, in which
case only shall a decree ^be p^issed against him. This ktter
is of course clearly a decree and therefore appealable, but that
is in no way material to the point in issue. But under Section
103 we have a procedure laid down With equal peremptorineBS.
If it is proved that the plaintiff was prevented by any
snflScient cause from appearing when the suit was called on for
heftring, the Court shall set aside the dismissal (observe the
word dismtssalt not decree is used) and shall appoint a day for
proceeding with the suit. In face of the provision of Section
103 can it be said that a dismissal under Section 102 is " final "
within the meaning of Explanation IV to Section 13, Oivil
Procedure Code P
Now an order under Section 103 refusing to restore a case
to the list is not a decree, but an order, and is appealable under
Section 588 (8). Now in what sense is an order of dismissal
passed under Section 102 any more an adjudication of a right,
than an order passed under Section 103 ? It is, if anything,
rather less so, for it is ex parte, whereas under Section 103 the
plaintiff at least may be present. But clearly a refusal to
restore a case dismissed under Section 103 is not a decree.
But further, if a dismissal under Section 102 is a decree,
why should it not act a6 res judicata, and why is it neaessary to
say in Section 103, when a suit has been wholly or partially
dismissed under Section 102, the plaintiff shall hd preoluied
from bringing a fresh suit in respect of the sima cause of action?
If the dismissal under Sdotiou 102 is a decree, surely these words
Saotion 103 are sorplasage.
NoTB. 1907. ] CIVIL JUDGMBNTS-No. 121. 578
In regard to this qaestion of rss judicata their Lordships of
the Privy Oonnoil made Rome obserTations in Ohand Kaur v. Oopal
Singh ('). They say : " The provisions of Sections 102 and 103
" of Act X of 1877 remain therefore to be considered. The
** dismissal of a suit ander Section 102 was plainly not intended
'* to operate in favour of the defendants as res judicata. It
<^ imposes, however, when read along with Section 103, a oertain
" disability npon the plaintiff, whose snit has been dismissed.
'' fie is thereby precluded from bringing a fresh snit in respeot
^ of the same canse of action." The only meaning I can place
npon these words is that a dismissal under Section 102 taken by
itself is clearly not intended to operate by way of res judicata,
bnt that when we take 1C3 along with it, we find that though
clearly not intended to operate as res judicata, it does impose a
certain restriction npon the plain tifF, whose snit has been so
dismissed in regard to the same cause of action. That is to
say that, but for Section 103 it would impose no restriction
at all, ergo it is argued their Lordships canoot regard a dismissal
nnder Section 102 as a decree. Without going so far as to
say that their Lordships intended to lay down that an order of
dismissal nnder Section 102 is not a decree, I think there is
much foice in the arguments put forward by the learned counsel
for the respondent in support of that contention and that the
dedactions drawn is not an unfair one.
Section 103, it is argued on the one hand by providing an
easy and inexpensive remedy for a wrong dismissal under Section
102, obviates the necessity of an appeal, and all possibility of
injustice is precluded by allowing an appeal from a refusal to
restore a case to the list under Section 103. On the other side
it is argued tht^t Section 103 merely provides an additional
summary remedy, leaving the ordinary remedy unaffected.
I do not propose to go through all the conflicting authorities
quoted by my brother Ohatterji, bnt would like to say that I
regard a dismissal under Section 102 and a dismissal under
Section 556 as standing on a different footing.
The wording of the corresponding sections is different. In
Section 102 and Section 103 the terms are equally peremptory.
If the plaintiff is absent, his snit shall be dismissed - Section 102;
if he applies nnder Section 103 and shows sufficient cause for
his abjtence, the Court shall set aside the order of dismissal.
Under Section 556 if the appellant does not attend, his appeal
shall be dismissed in default. But under Section 558 if he
C»)I.Xi.il.,XnCaf., 98.
674 CIVIL JUDGMENTS— No. 121.
[ RiOOED
proves that he was prevented from attending by any snfficient
cause, the Court may re-admit the appeal. In Section 103 we
have the word " shall," bat in Section 558 discretion is given and
the word is " may ".
Farther, there is this great distinction that in the one case
there is a oonplet3 record and an adjudication and without
qnestion a decree. In the other there is only a dismissal in
default and there is no appeal under Section 588 from an order
under Section 668, as there is from an order under Section 103.
The two things stand upon a different footing. When an
appeal is dismissed in default, the decree of the first Court
subsists and becomes the decree of the second Court, thus entiiely
differentiating this case from a dismissal under Section 102
where there is no subsisting decree at all.
It is argued by the learned counsel for the respondent that
the matter is one which has already been decided by a FuU
Bench of the Court and that the principle of stare decisis should
be appliod.
The previons Judgment of thia Conrt in Pandit Sama Kant
T. Pandit Bagdeo (•), does not, however, go very Mly into a dia-
cnssion of Ihe point involved. Indeeii. the Judgment of the
Fnll Bench on this point occnpiee only 12 lipes and differs from
thevxew already expressed by two of the Jndges fonning the
Pall Bench m the.r referring order. In view, therefore, of the
opmions e.pra,s,a by my brother. Rattigan and Johnstone, I
eel that I am not jnstified in accepting that ruling as final a^d
m declining to consider the case de novo.
My brother Ohatterji having fully dealt with the authorities
I need n„tgo o.erth,m again. I .ill merely remark thft
for reasons g,vea above, I bald authorities that a dismissal in
default under Section 556 is a decree a™ not entirelyTrplT
That this wa, also the view of .he Calcutta Court. r^T^
some support from th9 fact that in remrh-n^ fk j / ''^ceives
rr^rthTd'■" r- ^-^-^^^^^^^::
S^,^h («) the Judgments in Jagan Xath Singh v. BudhanT)
and^... AU.. JafirMi (*) are mentioned'as bei^ Tvi!
ruled, whereas the ruling in Amrita Lai Uuterii y R,^ nj^ ^
f'P To:''' ;' '- r '''' '^ -'- ^'--'-^g aTu^l:
Section 102 .snot a decree, wa, not .o mentioned as overrul^
although brought to the notice of the Full Bench. As regsr^a
(•) 60 P R., 1897 P. B. C\T T o »„„
(•) I. t. R, XXX Cal., 660. >.{ ^j \ ^' ^" Cat 116.
iJoTl. 1907. ] CIVIL JUDGMENTS— No. 121.
676
Section 102 we have the Fall Bench ruling of this Court.
Pandit Bama Kant v. Pandtt Bajdeo (>), and the ruling in
Ahlukh and another y. Bhagirathi (») by the Allahbad High
Court to the effect that an order of dismissal under Section 102
ifi a decree. On the other side we have the Judgment in
Amrita Lai Mukerjee v. Bam Chandar Boy (^) and a series of
Rulings of the Madras Court following Oilktnson and another v.
Suhromania Ayyar (*). This was followed in Somayya v. Stt-
hama (•) and in Maharaja of Vizianogram v. Lingam Krishna
Bhupati and others (•). A similar view was taken in Mansah
All V. Nihal Ghand (^ ), by the Allahbad High Court, though in
that case the dismissal had been under the Letters Patent and
not under Section 102. The proper interpretation of their
LordHhips of the Privy Council's judgment in Chand Kaur v
Partah >ingh (®), is discussed.
I'he learned Judges of the Allahbad Court say ; '* Indeed it
" would necessarily follow from the two decisions of their Lord-
" ships of the Privy Cooncil to which we have referred that
" an oi'der dismissing a suit or appeal for default could not be
^' treated as a formal expression of an adjudication upon any
*' right or defence set up. " The second ruling of the Privy
Council referred to was stated to be to the same effect as that in
Ohand Kuar v. Partab iSingk. With the reasoning of the Jndges
of the Allahabad Court in Mansah AlCs case I concur. This
Judgment has already run to considerably greater length than
I intended. I will not recapitulate, but I hold that an appeal
does not lie from an order under section 102, Civil Procedure
Code, dismissing a suit in default^ because, inter alia^ such an
order, thongh it may be an adjudication upon the question
whether the plaintiff was or was not present, the only point upon
which the Court was allowed by law to adjudicate, it is not on
expression upon] any right claimed or defence set up. Such
adjudication being expressly forbidden by law in the section
itself.
For the reasons given above, 1 hold that the question
referred should be answered in the negative.
JoHNSTONB, J.— I have little to add to the views I expressed ^^ ^
in the referring order. # The question relates to Section 102, Civil
C ^) 60 P. B., 1897 F. B. ^ •) I. L. B., XX7I Mad., 601.
(•) /. L. B., /X All , 427. (•) 12 Mad., L. J, Rep. 478,
(•) J. L. a, XXIX Cal„ 60. V) L L. B.. XV All., 859.
(*) I. L. B., XXII Mad., 321. (•) /. L. B. , XVI Cal., 98.
576 CIVIL "JUDGMENTS— Na 121. [
Procedare Code, and not to Section 556 ; and thongli I am still
disposed on tbe whole to treat the sections as being on the same
footing, it is not necessary for me to insist npon this. I approve,
if I may ventnre to say so, of the manner in which my brother
Battigan has elucidated certain points in his referring order, and
I have been mnch confirmed in my views by the learned Judg-
ment of my brother Robertson.
I have a great respect for the principle stare dectsis ; but
in my opinion the present case is of too important a nature
to warrant our letting a decision stand which, in my humble
opinion, is unsoand. I am unable to concar in the snggestiou
that no harm is done by allowing an appeal where, by law
properly interpreted, no appeal lies. In my opinion the law as
contained in Section 103 and Section 588, Civil Procedure
Code, provides ample safegaards that no injustioe will be
done, and to allow an unnecessary appeal as well against
orders under Section 102, Civil Procedure Code, in a litignous
Province like the Punjab is in itself an injury to the public.
Qreat as is my respect for the opinions of my brother
Chatterji, especially in coaoeotion with qaestions of procedore,
I find myself unable to agree with him in his disonssioo of
the definition of *' decreo" in Section 2, Civil Procedure Code.
No doubt " adjudication '' has the meaning or meanings wbioh
he attributes to it ; bat the words in the definition are
*' adjadication upon any right claimed or defence set tip.** A
plaintifF claims Rs. uOO on a book debt against a defendant, hot
defaults under Section 102, Civil Procedure Code, and the soit is
dismissed.. I am anable to see how there is here any
adjudication npon the right claimed, tbaf is, how it can be
said that the Court has decided whether plaintiff is entitled
to Rs. 500. The Court merely rales, as it has to rule under the
section, that it refuses to adjudicate, that is, it declines to h^
plaintiff or to say whether he is entitled to the money or not.
Nor am I at all in accord with my brother Chatterji in
his minimising of the importance of the ruling of the Privy
Council in AJussammat Ohand Kaur v. fartab Singh. To my |
mind the decision that an order under Section 102, Civil
Procedure Code, does not operate as retjudieata, oonpled with
the first sentence of Section 10i<, Civil Procedure Code, is
nearly conclusive on the question whether an order of dismissal
under Section 102 is a decree or not. I am unable to see '
the force of the illustrations relied open by my learned brother |
of eases where even a decree may not act as res fuHcata. \
tTom 1907. ] atVtL JUDOMINTS— No. lit f^f
-t-
My idea bas alwajR been that a pnrty can only appeal
wlien he is able to assert that the order appealed against !■
wrong. How can a plaintiff whose Pnit has been dismissed
noder Section 102, he being absent, be heard to say that the
order was wrong and shoald not have been passed ? If he
was absent, the law gave the Coort no option— it was bound
to dismiss the snit. That Coort can, of course, reconsider the
order, if it is moved thereto under Section 103 ; but the order
under Section 102 is, on the facts before the Court on the day
of hearing, absolutely sound.
I would, in short, answer the question referred by saying
that an order of dismissal under Section 102, Civil Procedure
Code, is not a decree and is not appealable.
RiTTiGAN, J.— I agree with my brothers Robertson and 2nd June 1906.
Johnstone that the question referred to the Full Bench must be
answered in the negative, and I also agree with the reasoning*,
by which my brothers arrive at that conolasion. As, however,
we are differing not only from the ruling of a previous Full
Bench upon this same question, but also from the opinions
expressed upon this reference by the learned Chief Judge and
my brother Chatterji. I think it only meet and proper that even
at the risk of repetition I also should ctate the grounds upon
which I base my opinion.
The qoestion is whether an appeal lies from an order dismiss*
ing a snit in default under Section 102, Civil Procedure Code.
Now, it is an undoubted proponition of law (for which there is,
the very highest authority— see MumaJcshi Natdoos case (A)
that a right of appeal in a matter which comes under the
consideration of a Judge cannot be assumed; such rightmost
be given by statute or by some authority equivalent to a statute.
We mast therefore see whether the Code of Civil Procedure
which is the only relevant authority in the present case, gives a
light of appeal from such an order, and for this purpose we have
to refer to the two sections of the Code which make provisions for
appeals. These sections are Section 588, under which certain
•peoified " orders " as defined in Section 2, are expressly made
appealable, and Section 540, which in general terms provides
that " unless when otherwise expressly provided by this Code
or hy any other law for the time being in force, an appeal shall
lie from the deerees or any part of the decrees, of the
Courts exercising original jurisdiction to the Courts authorised
to hear appeals from the decisions of those Courts". The section
C») X. B. 14,1. J., 165.
-u^
BtS ^'itlL JtTDGlfENtS-No. l^L [ RkoeA
abo provides that ** an appeal may lie nnder this section from
an original decree passed ex parte*\ Orders nnder Section 102
(if they be orders as deBned in Section 2) are not referred to
in Section 588, and, therefore, in order to see whether an appeil
lies from an order dismissing a snit^ in defanlt nnder the form^
section, we have to consider whether snch at. order is a *' decree**
as defined in Section 2. Is it, in other wordt*, " the formal
expression of an adjudication npon any right claimed or defence
set np in a Civil Court,** which said adjudication, so far as regards
the Court expressing it, decides the suit or appeal.'* In mj
opinion, it is not and cannot be regarjjed as snch an adjadicatioa.
A suit may be dismissed under Section 102 at any stage of tb®
proceedings, it may be dismissed even before issues are framed,
and it may be dismissed at the very last hearing when the
record is practically complete and the case is ripe for decision-
Bat at whatever stage* the dismissal takes place, the Conrt
cannot adjudicate npon either the right claimed or the defenee
set np. It must dismiss the'suit, no matter what the merits of
plaintiffs' claim may be. In Zainah Begam y. Munawar Eussain
0), the Court (Brodhurst and Tyrrell, JJ.) observed; " On the
' day fixed for hearing, and on adjourned dates, the appellant did
*^ not atten^n person or by pleader. The subordinate Jadge
'* then bad bnt one legal course open to him to dismiss the appeal
«* in defanlt (Section 556). It was illegal to try the appeals on
**the merits. The Judgment given in this way is a nolHty
"and must be cancelled." I venture, with all respect, to think
that this decision is correct and that its correctness is unim-
peachable. If, therefore, a Court is bound, when a plaintiff
fails to appear on the date of hearing, to dismiss the salt ana
cannot g^ve any decision npon the merits, how can it he w>d
i n reason, that the order dismissing the suit is per se an adjndicft*
tion upon the right daimed, in the sense that it decides that the
plaintiff is disentitled to the relief claimed? Aoceptiog the
definition of " adjudication " given by Webster and quoted hjr
my brother Chatterji, t««., " a deliberate determination hy the
judicial power " and assuming that " it connotes the exercise o
the judicial mind in coming to a decision," what right cUimeu
or defence set up is thus deliberately determined after the
exercise of its judicial mind, when the Court without w^J
referents whatever to the rights claimed or the defenee set npi
is compelled to dismiss the suit. Simply and solely becaose
plaintiff is not present? In such case the Court, if it can
said to deliberately determine anything at all or to in any way
ezeroise its judicial mind, deliberately determines merely^^
(*) X. L. B^ Vin AlU 277.
Novi. 1907. ] OIVIL JUDQMBNTB— No. 1«1. 579
plaintiff is absent. Bat bow oan it be said tbat an adjadioation
as to tbe presence or absence of plaintiff is an adjndioatiou npon
the right claimed by plaintiff or upon the defence set np bj tbe
defendant ? Moreover, if bj dismissing the suit in defanlt^ the
Gonrt is to be regarded as adjadicating npon the right claimed
by plaintiff and mast be assumed to decide that plaintiff is
disentitled to the relief sought, the adjudication must necessarily
be considered as going to the whole of plaintiff's case
and as being a complete adjudication both as regards the claim
preferred and the defence set up. If, for example, there are ten
issues in the case it must, I presume, be taken that all ten issues
are decided against plaintiff, or is an Appellate Court, when the
case comes, before it entitled to pick and choose and to say that
BQcb and such an issue mast alone be regarded as having been
adjudicated apon P Could the Legislature have possibly intended
to compel a Court against its own clear convictions to decide
an issue aginst plaintiff on the merits simply because he appears
to be absent on a particular date ? For example, the defendant
pleads that the sait is barred bj time, or that the Coart has no
jurisdiction to entertain the sait. At the second hearing issoes
having been fixed at the first hearing, the plaintiff is absent and
tbe suit is dismissed in default. The Court is itself satisfied that
defendants' pleas are perfectly untenable, bat is it to be taken to
have decided those pleas in favoar of defendant ? If not, to
what extent is the order of dismissal of an adjadioation upon the
right claimed or the defence set up P In Bhagwan Singh v.
Pari (^), Plowden, J., in a decision which I anderstand to meet
with the approval of my brother Chatterji, observed as follows : —
"As I underRtand the Code, a plaintiff who appeals against a
** decree made ander Section 102 can only appeal as in the case of
** a decree made in the presence of both parties, on the ground
** tbat the lower Coart has erroneously decided some question
" of law or fact, or that its procedure has been irregular and not
" ID accordance with law Further, it seems to me clear that
" the plaintiff had no right to impeach the decree merely on the
^ ground that he had a good exruse for not being present on the
" date fixed in the lower Court. The proper, and it seems to me
" tbe only, way in which a decree can be impugned on this ground
"is by a proceeding under Section 103. A proceeding under that
" section impates no error to the Court in making the decree, it
^ alleges now matter as ground why it should be set aside. On
^ any other view the jirovisions of the law of limitation might
"be overridden. A person not applying under Section 103
" within 30 days is absolately barred from applying ifnder tbat
(») 82 F. B., 1889. "
580 ^'^^^ JUDOMINTS-No. 121. [ Bioqm
''section, the period not being extendible. But if be miiy appeal
'' against the decree on the same grouad, on ^rhioh he may applj
'' ander Section iCS, the period is virtaally ezbondible, when the
'' period for appeal is longer than 30 days, or when be oan show
*' canse for not appealing within SO days, if that is the period
'' fixed for appeal. It seems to me that it is precisely becanse an
''explanation, however satisfactory, of the absence of a party is
*' irrelevant and is inadmissible as a gronnd of appeal that Section
'' 103 and Section 106 have been enacted for plaintiffs and defend-
'' ant«, respectively, and that an appeal is granted nnder Section
'* 588 from orders adverse to applicants nnder these sections."
It is impossible not to feel the force of these remarks. If an
appeal lies from an order dismissing a snit in default, the scope
of that appeal mnst be restricted to matters other than those
for which Section 103 makes provision. In other words, the
plaintiff oan appeal merely npon the merits of his claim and of
the defence set np, or npon the gronnd that the procednre of the
Oonrt was not in accordance with law. Indeed, unless I mis-
understand my brother Ohatterji, the plaintiff must appeal, if he
appeals at all, upon the whole case, for the order of dismissal is
an adjudication that be is not entitled to relief at all. Bnt if tbii
is so, upon what materials is the Appellate Court (which npon
the assumption that an appeal lies to it, entertains the whole case)
to come to a decision in those oases where the order of dismisBsl
has been passed at a very early stage, e.^., before any evidence
is given in the case P And how is the plaintiff-appellant to
comply with the requirements of Section 541, Civil Procednre
Code ? What are the objections to the decree, appealed against
which he is to set forth concisely and under distin ot beads in
his memorandum of appeal P He could only urge, as far as I can
see, that the decree was wrong, he could not possibly enter
into details, for the obvious reason that neither the Judgment
nor the decree of the lower Court give any such. Then, in
the majority of coses would the appeal be of the slightest use to
him P Assume that the order of dismissal is a decree and that
it decides that the plaintiff is not entitled to the relief claimed
becanse he is not present to prosecute his case. In every case
when the plaintiff was actually absent, the decree would be
absolutely correct and unimpeachable, and the Appellate Court
would be bound, I presume, to uphold it. It could not consider
the question whether p1aintiff*8 explanation of his absenoe W8S|
reasonable or satisfactory, for, as pointed out by Sir M. Plowden
that would, be a wholly irrelevant question in an appeal from an
order under Section 102. The only question for the Appdkte
i[(m. 1907. ] CIVIL JUDGMBNTS^Na isi. ggj^
Conrt would be, whether or not plaintiff was actitallj in defanlt.
If he was, the Appellate Goni-t woald be as maoh bound to
dismiss the plaintiff's appeal as the first Conrt was bonnd to
dismiss the suit. The only oase then in whioh an appeal would
be of the slightest use to a plaintiff would be when he was
actually present, though the Gourt had found him to be absent
and such oases must, I oonoeive, be of very rare ocenrrenoe. For
them an application for review or an application to the High ^
Court for revision would seem to be sufficient remedy. But
however this may be, the difficulties of holding that an order
dismissing a suit in default is a decree as defined in the CodO}
when it is obvious that the Gourt at the time of passing such
order does not, and cannot,2adjudicate, except under what I would|
with every respect, call a very strained construction of the term,
upon the rights claimed, or the defences set up, are so insuper- j
able that for this reason alone I would hold that such orders
cannot be regarded as decrees. But in addition to this, we have
the decision of their Lordships of the Privy Gouncil to the effect
that an order under Section 102 cannot operate as rei-judicata
{OJutnd Kaur v. Parktb Singh (0)« This case has been elabo-
rately discussed by my brothers Ghatterji and Robertson, and it
is unnecessary for me to say more than that the construction put
npon it by my brother Robertson is the one which commends
itself to me. This is also the construction which was adopted in
Mansab Alt v. Nihal Ohandi^)^ and OilUmon v. Svhramania
Ayyar (*)• It seems to me upon principle, and quite apart from
authority, that if an order dismissing a suit in default is a
decree, if it adjudicates upon the right claimed by the plaintiff,
such adjudication being, so far as the Gourt expressing it is
concerned, a final decision of the suit, that order must ipso f ado
operate as res judicata. If it does, then for what purpose were
the opening words of Section 103 inserted in that section P
Upon this assumption, they would be absdutely surplusages.
Having thus endeavoured to explain, as briefly as possiblsi
the general ground upon which I hold that an order dismissing
a suit under Section 102 is not a decree, I proceed to consider
the chief objections urged by my brother Ghatterji against that
viewl In the first place it is said that the balance of judicial
authority is really in support of the contrary view. I confess that
I do not think so. On the contrary, I still think, as I thought
when referring the question to the Full Bench, that the propondet*
ance of authority supports the view which I myself venture to
C) I. U JR, XVI Col., 08 P. 0. jL, ^ XVL 4. 166. (•)!. L.B^ZVAH^ 9W.
5^2 ^^^^^ JUDGMBKTS-No. 121. [ BiooBO
entertain. Before referring to these authorities, I most repeat
that I oonaider that " there is (in the words of the Fall Bench
Judgment reported as Pandtt Bama Kant v. Pandit Bagdeo) an
eeeential distinction between an order dismissing an appeal for
default and one disposing of an original suit in accordance with
the provisions of Section 102, Civil Procedure Code." Whether
an order under Section 556 is a decree or not, is not a question
before us, and upon it I would propose to reserve my opinion until
the question comes up for determination. But while I do not think
that an order under Section 102 can by any possibility fall
under the definition of a decree, I am not, as at present advised,
prepared to say that an order under Section 556, which by
dismissing an appeal in default confirms the decree appealed
Against, is not in itself a decree. But if orders under Section
666 are rot decrees, d fortiori orders under Section 102 are not,
and consequently while these decisions which lay it down that
appeals do not He from orders under Section 556 can legitimately
ho regarded as supporting the view which* I take regarding
orders under Section 102 ; it does not at all follow that decisions
which lay it down that ordei'S under Section 556 are appealable
as decrees ctn be claimed as supporting the opposite view. With
these remarks I proceed to detail the authorities.
The rulings which decide that orders dismissing a luit or
appeal in default are decrees are the following :—
Punjab cases —
Pandit Rama Kant v. Pandit Bagdeo (*).
Bhagwan Singh y. Pari (•), Sahib Ditta v. Boda (*)—
following Pandit Hama Kant's case.
Allahabad (
Ablakh v. Bhagirathi (*). (It was doubted whether the
order was really one under Section 102).
Calcutta eases—
Badha Nath Singh v. Ohandi Oharan Singh (^), Qo9to
Behary Sardar v. Hari Mohan (*) — following the Full
Bench decision.
Bombay case —
Bam Chandra Pandurang v. Madkar Purushottam ('>.
(I) 60 P. il., 1897, F.B. () I. L. E.. IX AU,, 427.
(•) 82 P. H., 1889. (») i. L, R,, 30 AU,, 600, P. B.
(•) 88 P. B., 1902. (•) 8 Cal^ W. N^ 818.
C)X.L.£.,ZF/£o»H,2e.
KoTR. 1907. OIVIL JUDQMBNTS-Ko. 12L 58g
As regards the above eases I would observe (^) that in
Bhagwan BingVa case, a single Jadge ruling, the learned Jadge
remarked that " acoording to rnlings of some of the Eight Courts
an appeal lay from the ex parte decree and no objection ^has^
been taken to the decree made thereon by the defendant.'* ^^
The question whether the orders under Section 102 was a
decree, was thus not argued before the learned Judge, and it was
assumed that it was a decree ; (^) SahxhdittaU case merely
followed the Full Bench ruling in Bama Kanfs case ; (^) in
Bama kant^s case the ultimate decision of .the Full Bench is
opposed to the previous views of two of the then learned Judges
who constituted the Full Bench ; (*) in AhlaTcKs case a doubt is
expressed whether the order then under appeal was passed under
Section 102, if it was not, the opinions expressed by the learned
Judges would necessarily be merely obiter dicta ; {^) Eadha
NcUh SingVs case^ I agree with my brother _ Robertson in
the opinion that strictly speaking the Full, Bench gave its
decision merely upon the particular decree then before the
learned Judges, and there is nothing in any of the Judgments
to warrant the assertion made in the head-note to the effect that
Jagarnath Singh's case (^), and Anwar Alts case (2), over-ruled ;
(*) Ooito Behartfs case purports to follow the Full Bench ruling
in Badha Nath Singh ; and (^) in Bam Ohandra Pandurang^s case
Birdwood, J. expressed an opinion (which^was admittedly obiter)
to the effect that an order under Section 556 was a decree.
The cases per contra are as follows.: —
Punjab^
Mussammat Amna v. AsJcari Begam (^), Muhammad AU
Y.Eyat (*).
Allahabad—
Mamab AU v. Nihal Ohand (•).
Madras—
CKlkinson v. Subramania Ayyar (6), Somayya v. Subbamma
(^). Maharaja Vmanagram v. Lingam Krishna (•).
Calcutta —
Jagarnath Singh v. Budhan (^)f Anwar AU y. Jaffer Alt
(*<>), and Atnrita Lai Mukeijee v. Bam^ Ohandra
BoyO'y _____
1») I. L. K., ZXm Oal., 116. (•) I. L. H., IXII Mdd„ 221.
(•) /. L. R., XXIII Oal, 827. (') /. L. B., XXVI Mad., 699.
(•) 9 P. H., 1883. (•)12if(ul.,Ii.J.473.
* (♦) 79 P. B., 1890. (•) /. L. B., XXIII Oal^ W.
CJ /. LR^'xr Allj 359. ('«) /•' L. E., XXIU Cai., 837.
584 dVIi JUDGlUDNTS-^No. Ifl. [ Bioou>
Taking then the oases as a whole» I think I am justified
in adhering to my opinion that the weight of authority is
really against the view adopted in Pandii Eama. Kanfs case.
The next point made by my brother Chatterji is in
oonneotion with the Judgment of their Lordships of the Privy
Oounoil in Mtusammat Chand Kauris case. It is urged that
their Lordships do not in express terms state that an
order under Section 102 is not a decree, and in the second
place that when they decided that an order under Section 102
did not operate as ret judicata^ their decision was based upon a
consideration of Section 103 no less than of Section 102. I
confess I cannot understand how any inference can be
drawn from the omission on the part of their Lordships to
state that the order under Section 102 was not a decree. It
probably seemed to them that it was quite sufficient for the
purposes of that case to decide that '' the dismissal of a soit in
terms of Section 102 was plainly not intended to operate in
favour of the defendant as res judicata.** It was not necessary
for their Lordships to add in so many words that an order onder
Section 102 was not a decree. And I am also enable to under-
stand how it can be maintained that their Lordships intended to
decide that it was only by reason of Section 103 that it could be
held that an order under Section 102 could not operate as
res judioata. They say distinctly that an order under Section
102 was never intended to operate as res judicata. Having said
this, they then, in another sentence, proceed to point out that,
though an order of the kind cannot operate as res judicata^ it
does, in continuation with Section 103, preclude the plaintiff
from bringing a fresh snit upon the same cause of action. The
very word '' however'* in the third sentence is, I venture to think,
fatal to the construction which my brother Ohatterji would put
on their Lordships* Judgment.
It is next contended that it is most anomalous that while an
order dismissing a suit in default is not a decree, and therefore
not appealable, an order undw the same section partly
or wholly decreeing a suit upon admission is a decree and
appealabla. Why, it is asked, if the ** decision of a case in a
certain way inflexibly laid down by statute can not be treated
aa an adjudication** should an order under Section 102
wholly or partly decree in a suit upon admission be treated
as a decree P The Court in such cases is compelled to record an
order provided by the law and there is no exercise of the
judicial mind. The answer to this objection appears to me t»
be obvioasy and to be fouud in the reiy language of the section*
tftn. 1907. ] CIVIL ;UDGMBNT8-N«. Ml.
MS
The Legislature has expressly declared that in every case when
the plaintiff is absent his suit shall be dismissed, unless the
defendant admits the claim in whole or in part. If the defend-
ant does so admit the claim, the Court is bound to pass
a decree in acoordance with the admission, and as the Legislature
has expressly enacfced that a decree shall be made in such oases,
it is scarcely profitable to discuss the qodstion whether such an
order can in truth be regarded as an adjudioabiou upon the
right claimed. Had the Legislature declared that in the event of
plaintiff's absence, defendant not admitting any part of the
olaim, the Court shall pass a decree dismissing the suit, the
present discussion would have been equally unnecessary. It may
be an anomaly that in a case when the suit is partly dismissed
and partly decreed upon admission, an appeal should lie in respect
of the part decreed and not in respect of the part dismissed, but
for this anomaly (if it be such) the Courts are not responsible.
Bat (it is said) an adjudication in the sense contended for, is
often involved in dismissal orders under Section 102. For
instance, the non-appearance or alleged non-appearance of the
plaintiff may have to be adjudicated upon, and this possibly at
the instance of defendant. No doubt such an adjudication may
be necessary at times, but the order would not thereby become
a decree unless the adjudication is in respect of the right claimed
or the defence set up, and finally decides the suit. Personally I
cannot regard it as such*
Itisnextsoggestedbymy brother Ohatterji that injnsHce
and hardship will often result if it be held that an order of
dismissal in default is not appealable, whereas there can be no
corresponding harm if an appeal is held to lie.
For my own part, I do not take such a pessimistice view as
does my brother, nor do I anticipate that any appreoiable
injustice or hardship will result if we hold that an order of
dismissal under Section 102 is not open to appeal.
As I have already endeavoured to point out, it is only in
those comparatively rare cases in which a plaintiff is really
present either in person or by agent, hot is erroneoosly
held not to be present, that an appeal would be in
any sense effective. In all other oases, and certainly in the
instances given by my brother Ghatterji as an illustration, an
appeal would be a mere mockery. As observed by Plowden, J., in
Bhaqwan Singh v. Par»Vit would not be open to such an appellant
to show that his absence was due to causes over which ha had
no control, or that it could be otherwise satiiifaotorily explained.
.glQ CIVIL JUDOMBNTS-No. 110. [ Bkcobo
A [plea of thatkiod is entertairable nnder Seetion 103, and under
< bat Section aloce. Norcmld tbe apyellant be permitted, if
regard is bad to logic, to diRisnes tbe merits of bii case, for H the
original Conrt coDld not go into the merits and waa bound to
di8mi8«« the euit immediately it foand that plaintiff was absent,
surely it would be most illogical and most anomalous to allow
tbe Appellate Court to set aside the order of dismissal and
consider tbe case upon its merits. Take the illustration given by
my brother Cbatterji. A firm of bankers, having branches at
various places, sues through its local agent for recovery of money
doe to one of the branches. The firm makes every arrangement
for the dne condoot of the case by its agent and also employs a
pleader: both the sfrent and tbe pleader, however, fail to appear
at the hearing. Tbe Court, has no option but to dismiss the suit,
and it does so. The principals do not hear of the order until
after the expiry of 30 days, and consequently the rights to apply
under Section 103 is barred. Now, supposing that the firm appeals,
what is the Appellate Court to do ? Can it allow the appolUuta
to explain the absence of their agent and pleader on the day of
bearing ? If so would not the provisions of the law of limitation,
laid down in infiexible terms for applications under Section 103,
be rendered nugatory P On the other hand, can the Appellate
Court do what the original Court admittedly could not da,
namely, enter into a consideration of the merits of plaintiff's
suit P Surely not. Can it be seriously maintained that in such
CASes the Appellate Court is not bound equally with the original
Court to at once dismiss the appeal as soon as it finds that the
plaintiff was in fact not present at the date of hearing P It
may possibly happen that hardships will arise in cases of dis-
missals for default under Section 102, but as I have said, I do not
think that such hardships will frequently result. In any case,
however, even if hardship does arise, occasionally, that is not (as
remarked in Jamna Bihi v. Sheikh J ahem (^), at page 537) ** a
*' consideration which can weigh with us in interpreting the law."
On the other hand, unlesM a right of appeal from orders of
dismissal under Section 102 is given in express terms, or by
neoessary implication, we cannot, I conceive, hold that an
appeal does lie, simply because no great harm may result
therefrom. As pointed out by their Lordships of tbe Privy
Council in the case cited by me, a right of appeal cannot be
given by statute or authority equivalent to statute. And as
regards the possible barm that may ensue, if we erroneously
hold that an appeal lies, I agree with my brother Johnstone
tbat'*to allow an unnecessary appeal in a litiguous Province, like
a
iTofB. 1907. ] CIVIL JUDGHBNTS— No. 12t fjgf^
" the Panjab, is in itoelf an iDJary to the pablic," and, I would
add to the reepoodeat, who rans the risk of having a favoarable
decision upiet by a Goart which ex hypothisi, has no jarisdiotion
in the matter.
Finallyy my brother Chatterji refers to ciders of a *' similar
nature'' to tbofie under jSeotiou 10'<^ which in some instance
have been held to be appealable, e. g,, dismissals nnder Section
i3dy 381 of the Code. 1 do not ihinlc that buis argument has
much force, tor it la scarcely a jastitiable method of construction
to interpret one section of the Code which deals specihcaliy
with a certain matter, ny retereuce to another section, which
deals with an entirely aifferent subject. If, however, reference
is to be made to other sections and to rulings ot the Courts there-
under, 1 think that a reference to bections 1^7 aiid 98 is far more
apposite. In Lucky Oham Chowdhry v. Budur/unni8sa{^)^ two
learned Judges of the Calcutta fligu Court (^W ilson and J^ieid,
JJ.) held that orders dittmissing a suit under Section 97 or
Section 9d are not decrees, and at e theietoie not appealable.
The firbt named learned Juuge observed in the course oi his Judg-
ment : " A aecree must be an expression ot opinion upon the
*^ lights of the parties, but this was a dismissal wholly apart from
^* the merits of the cabC. W e ai-e, therefore, disposeu to
*^ think that this is not a deciee but an order only. That
*' view is contirmed by tue latter part of the dehuition of a
*' decree, which ezpressiy says that a certain class of orders,
** more or lees analogous to those under Section 97, shall be decrees,
*' but says nothing of orders under Section 97. Then, again, a
'* large number of orders analogous to those made under Section 97
** are expressly made appealable under Section 588, whereas orders
*^ under Section ^7 are not mentioned." The similarity of Sections
97, 98 and 99 with Sections 102 and 103 is such that this
decision may be regarded as practically an authority upon the
question with which we are now concerned.
As regards other sections of the Code, I would only observe
that ihe rulings of the Courts are by no means harmonious.
For instance, the decision of the Bombay High Court in
Man Singh v. Mehta Earihcmram (^), that an order under
Section 136 is a decree, is opposed to a strong expression
of opinion to the contrary in Lucky Oham Ohowdhfy v,
Budurrunnissa (^y Again, while the Bombay and Madras High
Courts Bhikaji Bam Ohandra v. Furshotam ('), and Subbayya v.
Sanimadayyaf {*), appear to hold that an order under Section 366
— — . ■ —
(0 J. L. B^ IX CM., 627. (*) /. L, H., X Bom., 220.
(»>/.£. A 1X2 A>m^ 807. i*) i. L. M^ ZnU Mad^ m.
58^ ^^^^ JDDGMBl^tS-Na 121. [ Eicou>
18 virtually a decree, the High Coart of Allahabad is decidedly
of opiaioa that it is aot, Himda Bibi 7, AU Uussain Khan (>).
The reasons a&sigaad by ttie iearued Judges ia the case last cited,
for their opiaions are releyaat to the present discnsaioD.
Beferring to the Bombay case, they say : *The learned Jadges who
decided that appeal appear to ha^e overlooked the very
important provisions of decoiou 871, which allow a person claim-
ing to be the legal representative of a deceased to apply for an
order to set aside the order of abatement. It cannot therefore
be eaid that an order under the tirst paragraph of Section 366
is an adjudication which as far as the Coort expressing it, decides
the suit or appeal. Moreover, it is provided by clause 20 of
Section 588 of the Code that an applicant whose application to
set aside an order of abatement is refused, can appeal from such
order of refusal." This reasoniog would clearly apply to
Sections 102 and 103 of the Code, as well as to Sections 366
and 371.
1 have now consideAd all the objections urged by my brother
Chatterji in his learned Judgment against the view which I
venture to take in respect of the question now before us, and 1
have only to add that there is nothiug in that Judgment which
satisfies me that my view is wrong. On the other hand, I have
given reasons, which appear to me at all events to be satisfactotj,
for holding that an order of dismissal under Section 102 is not
a decree and not appealable. 1 quite agree that a Court should
endeavour to abide by its decisions and that a long-established
ruling, especially if it be a iull Bench ruling, should not be set
aside, save for good and sufficient causes. 1 should, therefore,
hesitate to be a party to over-ruling the decision in Pandit Bama
Kant V. Pandit Eagdeo, were 1 not satisfied beyond all doubt that
that decision is erroiiouus, and that by allowing an appeal in cases
in which no appeal lies, it tends to proloug litigation and to inflict
a wrjng on persons, who have a right to claim that they shjuid
not be subjected to the expense, harassment and risks of appeals,
which the law does not countenance.
The case having been referred back to the Division Bench
(Johnstone and Rattigan, J J.) was disposed of by the following
Judgment delivered by—-
16th March 1907. B^ttigan, J.— The majority of the Full Court has ruled that
' no appeal lies from an order under Section 102, Civil Procedure
Code, dismissing a suit in default and consequently the appeal
filed in this case must fail, but Mr. Kirkpatriok has filed a
Ho?». 1 W. ] OnriL JUDGMBNTS-No. 121. 589
petition for reYision of the order of the District Jadge. Mr.
Grey objects that under the circumstances the proper procedure
for this Court to adopt is to pass an order dismissing the appeal
with coats, and to thereafter deal with the petition for revision.
In Tiew of this objection Mr. Kirkpatrick withdraws the
petition and asks us to treat the memo of appeal already filed as
an application for revision. We proceed, therefore, to consider
the case in this light.
Mr. Grey contends that there has been no such irregularity
in the procedure of the lower Oourt as would justify us in inters
fering on revision, and he also argues that in passing the orders,
which he did, the District Judge acted (whether wisely or
otherwise) within his jurisdiction. To decide this question we
must briefly refer to the facts of the case.
PlaintifE brought a suit against defendants for recovery of
a total sum of Els. 93,032-8-3, but his suit comprised two
entirely separate claims. In the flrst place he claimed to recover
a sum of Ra. 83,032-8-3 with intereRt as being the amount which
he was wrongfully compelled to pay upon a decree obtained
against the Delhi Gotten Mills Company.
In the second place he claimed Bs. 10,000 as damages for
alleged illegal acts committed by defendants in realizing the first
mentioned sum from him. Upon the pleadings of the parties, the
District Judge framed certain preliminary issues which will be
found at page 83 of the printed paper book (hereinafter referred
to as the book) and upon those issues decided that " the pay-
ment" (by plaintiff) was entirely voluntary and for plaintifPs
own interest, and '' that his remedy is, under Sections 69 and 70
" of the Contract Act, against the Delhi Cotton Mills." The
District Judge then proceeded to say, '* I dismiss the case for
" recovery with costs. The case will proceed on the question of
'* damages for illeg<i1 attachment. Pleas to be filed for the 28th
"instant" This order was da^ed the 18th November 1902.
On the 3rd December 1902 the learned counsel for the
plaintiff filed an application coached in the following terms: —
*' In the case noted in the heading, the Court has dismissed
** the plaintiff's claim for refnnd of about Bs. 83,000, and as regards
"the remaining part of the claim for damages the case has been
" ordered to be proceeded with. It is therefore prayed that a
"decree sheet may be prepared in respect of the part of the
claim dismissed." Upon this application the District Judge
explained that it was not necessary for him to |iass a decree at
that stage of the case as the true meaning of his order of the
5S0 CT^I' JUD0MBNT8— 90. 121. [ RicoftD
18ih November 1902 was merely that he had pro tatUo disallowed
the claim for recovery of the said sam of Rs. 83,000, and that
he did not intend by the said order to imply that the case stood
dismissed. He added that " the final order in the case is the
" one on which the decree will be based." Plaintiff thereafter
applied for a review of the order of the 18th November 1902,
bat the application Was rejected by the District Jodge on the
21st March 1903, and the learned Jadge again pointed oat thai
the effect of the order impogned was merely that the Ooart had
given its finding on certain issues, bat had declined to pass a
decree antil the other issnes had been decided. On the same
date various other issnes were framed, which are set oat at page
7 of the book.
The plaintiff subsequently called various witnesses, whose
evidence was taken on the 16th and 17th April 1903, and on the
latter date certain evidence was also taken on behalf of defend-
ants.
On the 25th May 1903 an application was filed by the
plaintiff, which after setting out certain facts, stated in paragraph
89 that '* nnder the above circumstances it is very difficulty for the
" plaintiff to prosecute the case in respect of this part of the
<* claim, ». e., the claim for damages. Hence it is prayed that
" according to Section 373 of the Civil Procedure Oode he may be
" permttied to mthdraw a part of Ms claim ^ i. e., the chiim for
" EU. 10,000 on account of damages^ and that a decree may be
** prepared in terms of the order dated the I8th November 1902 dis^
" miiring the claim for Es. 83,005. "
Upon the same date the Oourt parsed an order refusing
to grant permi<;sion to the plaintiff to withdraw from the
suit with liberty to brinjif a fresh suit. Though correct in
other re^p'^otR, this order was so far erranejus that it assumed
that plaintiff wished to withdraw from the suit altogether.
The application distinctly stated that the plaintiff desired to
withdraw only from that part of the claim, which was for
Bs. 10,000 as damages ; as regirds the rest of the claim plaintiff
reiterated the prayer (which had already been refused) that
a decree should be passed in terms of the order of the 18th
November 1902. Immediately after the Oourt passed this order
the plaintiff's pleader stated that his client withdraw from the
claim for Rs. 10 000, dimiges, bat he added that the plaintiff
did not withdraw from the sait as regards the rest of the
claim. The defendant's counsel thereupon contended that the
evidence for the dt^fenoe should be taken so as to allow the
Ooart to C9me to a decision oa all the issues raisdd, aud in
KoTi. 1907. ] OITIL JUDGMENTS— No. 121. gQj
support of his coDteotion relied en the provisoDS of Section
204, Civil Procedure Code. The Oonrt held that the defendant
was entitled to have this evidenoe taken and that it waa
advisable to give a finding on all the issues. The learned
Judge added :^*' As the case stands now only one issue— one of
'' law — has been decided, and the issues of fact framed have
** not been decided. Under Section 204 the whole of the issues
** in the case must be decided and defendant is entitled to
" produce his evidence thereon.
The plaintiff and his pleader objected to this order and
thereafter refused to appear further in the case, though the
Conrt pointed out to them that the effect of their refusal to
appear would be that the suit as a whole would have to be
dismissed in default. The Court further gave the plaintiff
an opportunitj of reoonsidering his determination and stated
that if on the following day he decided to contiuue his case
he wonld be allowed to do so. The plaintiff, however, failed
to appear (and wilfully refrained from appeariog) on the
following day, with the result that the suit was dismissed in
default.
These being the facts, are there any grounds upon which
this Court is justified in revision in interfering with the order
of the District Judge P We confess that we are unable to find
any. Mr. Kii^kpatrick argues that the claim for the recovery
of Bh. 83,005 had been fioally disposed of by the order of the
18th November 1902, ar.d that consequently when the plaintiff
abandoned his claim as regards the Rs. 10,000 damages, the
Court was bound to dose the case and to pass a decree.
In other words, that as soon as the plaintiff stated on the
25th May 1903, that he withdrew from the claim, quaod the
Rs. 10,000, the Court had no jurisdiction to continue the
hearing of the case. No doubt, when a plaintiff withdraws
absolutely from his suit and gives it np enttrelyy the Court
cannot proceed with the further hearing of it. But this is
not what happened in this case. The District Judge had, by
a preliminary order, decided ih^t part of plaintiff's claim must
fail, but, as be was careful to explain in two subsequent orders,
which must have been thoroughly understood by the plaintiff
and his advisers, the meaning of that order was not that
plaintiff's suit was dismissed even in part, and that the Court's
intention was merely that to the extent of that claim, its
finding on the preliminary issue, which was one of law, was
•gainst plaintiff. After that order was passed, plaintiff went
592
OnriL JUDOMENW-No. Ul. t ^MOM
on with his case and produced eridenoe on tlie other iiwiiei
framed. When he had done so, and after defendant had
called part of his evidence, plaintiff suddenly decided to
abandon the second part of his claim, at the same time
expressly stating that he did not. witbdraw from the other
part. Under these circumstances what was the proper coarse
for the Court to adopt P The plaintiff had not withdrawn
from the suit He had, no doubt abandoned part of his
claim, but we know of no authority which lays it down as a
principle of law that in a case when a plaintiff abandons part
of his claim the Court is thereby debarred from continuing
the hearing of the suit, even though as regards the other part
of the claim it may have held, on a preliminary issue, that
the plaintiff must fail. The Court's view on this preliminary
issne may prove to be erroneouP, and it is surely within ite
competency, Specially if the defendant so desires, to go on
with the case and to give a finding on th*^ other issues in
order to avoid the necessity of a remand. Section 204 of
the Code provides that in suits •* in which issues have been
" framed the Court shaU state its finding or decision, with
" the reasons thereof, upon each separate issne, anless the
« finding upon any one or more of the issues be sufficient for
« the decision of the suit." In Devardkanda Naratamma f.
Bavarahmda Kanaya 0)f it was held that there was nothing in
this section to prevent the Court from deciding all the issues
raised in a case, and in Tarakant Bannerjee v. Puddcmn^
Bosses (*), their Lordships of the Privy Council remarked : " It
« is much to be desired that in all appealable oases the Courts
«' below should, as far as may be practicable, pronounce thehr
«• opinions on all the important points," in order to avoid, the
possibility of a remand. To a like effect is the dictum\n
8hih rtharan Lai v. Raghu Naih (*), at page 195, and
though the decisions of the High Conrt of Calcutta relied
upon by Mr. Kirkpatriok Barhamdeo Aarof'n Bingh ▼.
Maclcenzie (*), and Nan^i Lai Bat v. BmomaU Lahiri (•).
may not be quite reconoUeable with this view, we cannot hold
that a Court acts without jurisdiction or with material
irregularity, if, in the exercise of its discretion, it proceeds to
give a decision on aU the issues framed by it, though its
finding on any particular issue may be sufficient for the
disposal of the case so far as that Court itself is conoMned.
In the present case the mere facts that plaintiff abandoned
(O I. L. B., IV Mad,, 184. (*) A L. B^ XVJI AU.,Vi.
N) 6, W. B., P. 0 68. (*) I. L. «., Z Cak, 1096.
Norm, 1907. ] CIVIL JUBGMIBNTS— No. ISl. 598
part o! hiB claim and ihat as regards ihe other part of the
claim the Court had decided, on a preliminary issne of law,
that the plaintiff must fail, did not preolade the Goort, in
our opinion, from giving its 6nding8 on tlie other iesnes of
fact, especially in view of the fact that, after the passing of
the order of the 18th November 1902, and the framing of the
other issnes, the plaintiff had elected to give evidence in support
of his case. But even if we most assume that it was, under
the circumstances of the case, unneoessary for the Court to
decide the other issaes, we cannot on that account hold that
the Court in deciding that it ought to give findings upon
those other issues acted either with material irregularity or
ID excess of its jurisdiction or without jnrisdiction. The
Com t obviously thought that porae at all events of the other
issues were concerned with the part of the claim which it
had held, upon a preliminary point of law, could not be
established, and it accordingly decided to give a finding upon
these issnep. In so deciding, it may have been wrong, but
(without holding that its decision was wrong) are we to
hold that its decision, even if erroneous, is open to revision P
We oAonot think so. At most all that can be urged is .
that the Court erred in law, bat such error vrould not per se
afford ground for this Court's interference on the revision
side.
Moreover, the course adopted by the plaintiff in this
case puts him out of Court at once. Assuming that the
Court was wrong in taking the course it did, it would have
been open to the plaintiff to protest against ite procedure
and to have thereafter made it a ground of appeal when
(in the event of the decision of the Conrt upon the whole suit
being against him) he had to prefer an appeal to the Superior
Court. The plaintiff, however, contumaciously declined to accept
the ruling of the Coort and refused to put in any further
appearance in the case, Tvith the inevitable result that his
suit as a whole had to be dismissed in default.
Upon a review of the facts we find ourselves unable to
hold that this is a case in which we should be justified
in interfering on the revision side, and we accordingly
decline to entertain the memo of appeal as a petition for
revision.
The appeal is accordingly dismissed with coste.
Appeal dummsd.
504 CIVIL JUDGMBNTB-No. 122. [ Bmobd
No. 122.
Before Mr. Justice Chatter ji, CLE,, and Mr.
Justice Johnstone.
SBUTA SINGH,- (DEFERDAirr),— APPELLANT,
Versus
TARA SINQH,-.(Pi^WTi"'),— RESPONDENT.
Giyil Appeal No. 888 of 1906.
Ct««fom— Pre-tfmjjfion— iVtf-empWon on sale of house property^ MohaUa
Wadharian, BinUeot City- -Compensation for improvementa made by vender.
Found fhhi the custom of pre-emption in respect of sales of hoose
property by reason of yicinage preyails in mohalla .Wadharian in the d^
of Sialkot.
Held, that as a general rule a purchaser of immovable property subject to
the right of pre-emption who has effected improvements in spite of the pre-
emptors warning not to do so, is under no circumstances entitied to reoover
their market value, but might be allowed to remove them if that can be done
without injuring the property.
Firjtt appeal from the decree of Sardar Balwant Singh, District
Judge, Sialkot, dated Z^th June 1906.
Isbwar Das and Gk>biDd Das, for appellant.
Peston ji Dadabhai and Nanak Chand, for respondent.
The Jadi^ment of the Court was delivered by.—
\stJune\^01. CHATTBBjr, J.— This case and Civil Appeal No. 805 of 1906
are cross appeals and will be decided by one Judgment. They
arise in a suit for pre-emption of a bouse *n muhnUa Wadharian,
in tbe city of Sialkot, whioh bas been decreed by the District
Judge. Tbe defendant now appeals on tbe grounds that tbe
suit should bare been dismissed as tbere is no custom of pre-
emption in this muhaUa and that tbe sum allowed for
improvements is too small. Tbe plaintiff appeals on tbe ground
that tbe price has been fixed at too high a figure, and that nothing,
or at all events not tbe sum fixed by tbe lower Court, should
have been allowed for improvements
The parties are related by . marringe, and the case has
therefore been conducted with much bitter feeling on both sides.
Tbe defendant is a man of wealth and position while plaintiff is
the cousin of defendant's wife and his family is said to have
derived considerable benefit from tbe connection.
Taking up defendant's appeal first for consideration, we are of
opinion that the custom of pre-emption is sufficiently established
in the sabdivision of Sialkot in which the house is sitaate. Tbe
Van. 1907. ] OIVIL JUOOMBITrs— Na 188.
595
reasons for the findiDg of the lower Court, that the onstom
exists in this ntuhall^^ appear to as to he quite sound. In the
first place there have been several cases in this muhalla in
which the castorn has been affirmed, and there have been
fiumerous others in other muhallas of the city. The learned
pleader for the defendant-appellant minutely criticized some of
the Judgments previously passed granting decrees for pre-emption,
but we find ourselves unnble to reject a multitude of judicial
decisions in favour of pre-emption on the ground that the findings
on the evidence should have been otherwise and that the proper
kind of instanccF, or a sufficient number of them, was not before
the Court. Such a treatment of those cases is practically im-
possible now as the Court hearing the evidence is the best Judge
of its value and as the decisions have been generally acquiesced in.
In the caee of AUa Ditto v. Muthra a full enquiry was made and
the custoia was found to exist. The objection taken to this Judg-
ment is that it is not a case of muhalla Wadhaiian, but of Kucha
Kharasian ; but the Judgment clearly recites that the Kucha
is part of the Muhalla ; and we cannot hold this to be wrong
merely on the strength of the old Khasra map of 1865, which
shows Kucha Kharasian in a different colour. No question arises
here of the house in suit not being in the Wadharian muhalla^ and
that case is at all events an instance of the custom being found
to exist in an adjacent muhalla ; and one instance of a judicial
decision affirming the existence of pre-emption on contiguity in
this muhalla is referred to in the Juds^ment ; besides another
precedent from another muhalla. In Oobind v. Oura Ditta in
1891, the custom was found to exist in this muhalla, and there is
also an instance of a claimant for pre-emption having got a sale
effected in his favour. The instances from other muhallas
show that the custom is generally prevelent in the city of
Sialkot, and the facts (1) that it is not found to prevail in the
newmu^Kaof Karimpura, and (2) that in 1906, in Eahim
Bakhsh V. Karim Bakhsh the Divisional Judge, following the
principles laid down by this Court, held that the custom could
not he held to be proved to exist in muhalla Hakim Hisam-ud-
diu because no specific instance could be cited from it, do not
affect the finding in regard to muhalla Wadharian, which is an
old muhalla, and in which several instances have been proved,
apart from the numerous others proved generally in other and
adjoining muhallas of the city. Of course there have been
numerous sales in the muhalla, bat a claimant for pre-emption
doTs not always come foriVird to litigate, and the Wdnt of
claim generally proves nothing, while a single suooessf ul claim
596
CIVIL JUDGMBNTS-No. lit. t *«»»
goes far to eetablisli the cnfltom. The Court below also noted on
inspection of the spot that most of the sales relied on by the
defendant w«re to people who would be entitled to pre-emption.
In short in oar opinion the evidence in support of the custom
of pre-emption is so dear that we have not called upon respondent*!
counsel for a replj on this point. We find accordingly in conca^
rence with the lower Court that the custom of pre-emption based
on contiguity exists in muhaUa Wadharian. There is no qnefltion
that plaintiff is entitled to claim preemption if the custom ia
found.
The value of the improvements and the plaintiffs liabi%
for them are points raised in both appeals and we shall consider
these in disposing of the appeal of the plaintiff.
The first question for determination in the latter's appeal is
whether the District Judge is right in finding that the price
was fixed in good faith in the deed of sale, and that the whole of
tie purchase money mentioned therein was paid to the vendor.
After hearing the arguments of the parties and reading of the
record we are compelled to come io a conclusion different from
that of the District Judge. Rupees 6,000 were paid before the
Sub-Registrar and that officer's endorsement is in great detail
and contains the serial numbers and value of the currency notee
in which, with the exception of Els. 50 in silver, the payment was
made. The endorsement is of an exceptional character and
differs from the usual run of such endorsements in which the
total sum or the number of currency notes paid over is simply
mentioned. It was probably made in this form at the vendee's
request so that it might be impossible thereafter to deny that the
full sum of Rs. 5,000 was, to the registering officer's personal
knowledge, handed over to the seller. Compared with the care-
ful and strictly businesslike nature of this payment, that of
Rs. 10,00 before the execution and registration of the deed is
singulirly slovenly and unbusinesslike. To prove the payment
two witnesses, Sundar Singh (page 68) and Shamas Din (p^r® ^)'
and a receipt signed by the seller Ram Chand, dated 3rd Ootoher
1904, t. a., more than three weeks before the date of execntion of
the sale-deed, which was filed very late, are produed. The receipt
recites that Rs. 700 had been paid on 20th August and Rd. 300 at
the date of the document. It is admitted that there is noiudepen-
dent proof of the payment of R«. 700. The witnesses sre of the
ordinary kind, and Shamas Din, who proves nothing about the
payment, is defendant's servant, and merely deposes to paym «o
of Rs. 300. The defendant has not in the witness-box sworn to
the payment nor has he produced any books of account showmg
KoTB. 190?. ] CmL JUDGMBKTS— No. i23. k^
it This •■tatement that his wife sappUed the money from her
priyate fands does not satisfy us that it was in fact made. On
the other hand, plaintiff has called one BoIaIu Bam to depose that
on 2l8t AnguBt 1904 Ram Chand borrowed Bs. 500 from him
which, with Be. 100 previoosly owed by him. Bam Chand repaid
on 3rd November 1904 by giving one of the currency notes for Bs.
1,000 taken from defendant as part of the price of the house sold
and entered in the 8ab-BegiBtrai'b endorsement and taking the
balance Bs. 40U from the witness. All these transactions are
entered in BaUki's books. Bam Chand had on 27th Aiay 1904
mortgaged the house to his brother-in-law bukh Dial for Bs. 500
(fiee page 13), and on 21st August 1904 he repaid the loan and
baa the payment endorsed on the back of the mortgage-deed
(see page 15)« Defendant's case is that he supplied the money
(Bs. 700) out of which the mortgage- money was paid, but of
this, as already stated, there is no independent proof, whereas
plainti£E'B veiBion is strongly corroborated by Bulaki Bam and
his books. Tne District Judge lias rejected the books, but in our
opinion not on any cogent grounds, while it is not probable that
Bs. 700 were advanced by defendant, without an acknowledgment
which should liave been forthcoming now or at all events men*
tioned in the receipt for Bs. 1,000.
On the whole we can come to no other conclusion than that
the payment oi Bs. 7uu is nut proved. We accept the receipt so
far as to lioid that Bs. 300 were paid under it. Doubtless some
earnest money was paid but Bs. 1,000 seems to be too^large a sum
to pay for such A purpose in the ordinary course of things and
the proui therefore should have been cogent.
It follows that the price was not fixed in good faith and the
market valne oi the house has to be assessed. This may be taken
in connection with the value of the improvements.
1 he right of the defendant to recover his outlay in improve-
i^ente depends upon a rule of equity the application of which variea
with the facts of each case on which it is brought to bear. Str iotlyj
speal^ing, defendant is not entitled to be reimbursed for improve-
ments which were not made in good faith. Here there was a defect
of title in that the pnrohase was liable to be defeated at the suit
of a pre-emptor. Where no claim is made for a long time, there
may be an equity against compelling the purchaser, not to improve
his property on the mere chance of a claim for pre-emption being
made, but here notice of claim was given without loss of time on
12th November 1904, within three weeks of the sale, and, again
on 21st December, and the suit itself was filed on I6th January
1905. The plaintiff asserted the fact of the notices having been ^
5^g lOlViL JtDGlClKTB-lfo. l22. [ i^ooEO .1 tj,^
gifan, in hia plaiot, and the defendant did not challenge it and
we are, tbereforey joatified in aeaaming from the postal receipts
^ tiled that notices were so given. Flaintifi also on suing applied
for an injunction to stop building so that be had done all be
eould to prevent a claim beiDg made for improvemenu. Defend-
ant apparently was very reckless in pubhing on bis building
operations. Perhaps he hoped to induce plaintiff who was his
relation to forego the claim but has failed. He would not be
entitled to recover the market value of his improvements under the
drcomstances ana at bebt be fUiowtU to remoe them when it^
could be done without injuring the house* There is, howevert^
another rule of equity under which anj benetit that will accrue
10 the plaintiff from defendant's expenditure should be paid for
bj the iormer provided, of course, that the improvements are not
unusual and do not greatly enhance the value ol the propertj so
as to make it difficult for the plaintiff to pay for them. There is
no doubt that certain reconstructions have taken place in the
house, and some adcUtioub have been maoe which hiAve peima-
nently increased its value and suitabilitj as a piace of itsidence,
and for these we think a reasoLable bum ought to be paid b^ the
plaintiff. But it is extremely oifficuit to asscds tbe value of
these improvements* The defendant claimed hb. 4,0uu on
account of thtm ipage 39), and even in thib Court he asks for
Bs. 3,t>8(>-lI-6 in his appeal. Jhanua for defendant (page 7'6)
produced books of account and said that the expenaituie amount-
ed to Ks. 4,2b3, and again that it was its. 4,574-12-U up to 17th
A|^ril i^Od. Counsel beiuie Qb numits tiiac it cannot be predi-
catea tnat ail enuieb m the boukb itler lu this house nor what
portion of the expenditure was incurred on its accounU In theee
circumstances we must rejtct ilie becks and attempt to arrive at
some conclusion from the rest. of the record. These were two
experts appointed to value the house with tne improvements, but
their estimates differ latgely. That of Ham i'arshad, bub*
ilivisional OHicei'i MiUtaiy Works, Kawalpindi, contains full
detailS|J^ut it is said that his rates ate too low and there, piobablj,
is some foundation for the complaint. On the otiier hand tne
estimate of Mr. f iiz Hc/lmts wants paiticulars aLd is apparentlj^
too high. i<iu Holmes was unable 10 saj what new work bi^a
been done to the house. Mi*. Ham i^arshad's report mentions the
new works iu detail and ebtunates tiieu* value ml Ks. 479*7-0 and
the cost ol the paiapet wail of the roof at Ha* 9;ii and of repairs
at Bs. i4b. it iS| however, said that a new chaubara has been
4] built on the top story, but tnat tne value oX tlus Las not been
^ alloweu lor by uim. it u» aiuiouli to say if this is true as the
HOYE. 1907. 1 OITIL JUDGMlNTfl--N<i. 139. '" 190
reporfc fifivea merely the kinda o!1 worV fop whlob separate valu-
ations are made and does not mention the rooms, Ac, of the honse.
Bam Parshad was appointed commissioner for valuation by
agreement of parties and his report, unless shown to be wroniif, is
entitled to weight. He was minutely examined on interro^i^tories
and no question was put to him about the omission of the
chaubara. It is unlikely that this'tshouldlfbe so if there !was a '
real omission or that he would make such an omisinon. It is
iwobable, therefore, that the work of the ckaubara is included in
the varioas kinds of new work done to the house by the defen-
dant uriven in Ram Parshad's report.
There is no reason to think that the honse was sold under
the proper value, and if the price actually paid was Rs. 5,300 we
should be safe in holding that the real price was about that sum.
As the house is no longer' in its original state, it is practically
impossible t.o obtain any further information about it* valoe in
that state. We accordingly find that the market price of the
house was Rs. 5,.S00.
As regards improvements it is diflBonlt to arrive at exact
valuation of the benefits they have conferred on the house and the
amount by which they have enhanced its value. We must take
€gures and the details from Ram Parshad's list and according to
them they are worth Rs. 720. Rat as Ram Parshad's rates are
■aid to be low and in order to be on the safe side we increase the
rates and raise the amount to Rs. 1,000 in lump. Defendant
would then be entitled to Rs. 5,300 paid for the house and
Rs. 1,000 for the improvements or Rs. 6,300 in all. Of course
this cannot be very exact as we do not know to what extent the
fabric of old honse has been replaced by the improvements. But
as Ram Parshad's estimate of the value of the house with the
improvements amounts to Rs. 5,979 the extra amount we allow
ought to be a fair compensation for the latter.
We accept plaintiffs appeal and reduce the amount payable
by him to defendant for the house and the improvements to
Rs. 6,300 with costs on that snra in the Divisional Jndge*s Oourt
and on Rs. 1,760 in this Oourt. This sum will be deposited in
Oourt within two months from this date failing which plaintifTs
suit shall stand dismissed with costs.
The defendant's appeal is dismissed with costs.
4ffeal diimi$H4'
( iOO CIVIL JUDGMBNTB-Na Md. ( Bmo»d
No. 123.
Before Mr, Justice Chatterji, 0. 1. E., and Mr. JuHks
Johnstone.
SAIF ALI KHAN,— (PLAiOTiff),— APPELLANT,
Afphl&tb Sn>i. } Versus
FAZL MIHDI KHAN^AND OTHERS,— (Dbfetoantb),—
RESPONDENTa
Civil Appeal No. 769 of 1906.
Plaint^PresenUUon of insufficiently stamped plaint^Payment tf
deficiency after the expiry of limitation allowed for the euit^Date of inetitutio*
of euit^timitation Act, 1877, Section 4, Skplanation^ Court Wee$ Act, 1870
Sections 6, 28— OtviZ Procedure Code, 1882, Section 64 (^1).
Where a plaint was presented within the prescribed period of fimitatiob
on an insnfiScient stamp, and on discovery of the mistake the reqnisite de-
ficiency was made good within the time fixed by the Court, but after the
expiration of the limitation allowed for the suit.
Held, that having regard to the provisions of the Ezidanation to Section 4
of the Indian Limitation Act, 1877, and Sections 54 of the Civil Procedure
Code and 28 of the Court Fees Act, 1870, the emit should be regarded as
having been instituted on the date when the plaint was first presented and
that it was theMfore in time.
Further appeal from the decree of Khan Abdul Ohafur Khan,
Divisional Judge, Jhelum Division, datei 25th May 1906.
Muhammiid Shafi, for appellant.
Oertel, for respondents.
The judgment of the Court was delhrerisd by
llih June 1907. Chattkeji, J.— The material facts of this case are briefly
these. It is a suit for pre-emption of certain Inrd mnch of
wbich is subject to river action. The area in dippute is ],?46
hanals 1 marla of wbiob an iosifsfnificant fraction consisting of only
one hliasra number is assessed to revenue, Bs. 2-10-0. Tbe sale
took place on 24tb June 1904 and in tbe deed of sale tbe'fieldg
sold are mentioned with tbe jama above prtated. In tbe list filed
witb tbe plaint alpo tbe lands are so diescribed. The plaintiff
instituted bis suit on 22nd June 1905 or only two days before
tbe expiration of limitation upon a stamp calculated on five
times tbe revenue, but be stated tbe v&lue of the land to be
Bs. 1,866 and claimed pre-emption on payment of t^at sum.
The defendants in the written pleas filed on 5th July 1905
objeoted that thb Court fee was insufficient and that it should
have been paid on the market value, which he put at EU. 12,700,
the bulk of the land baia; uaassassed. Plaintiff's pleader on
Nofl. 1907. ] C3IVIL JUDGMBNTS-No. IW. 60i
being asked, hff;reei. to make up stamps on the market value,
Be. 1,866 stated in the plaint. The Gonrt appointed a looal
commissioner for the porpose of valaation and on receiving his
report ordered the plaintiff to pay Court-fee on Rs. 4,284,
the value assessed by him. This order was passed on 23rd
January 1906 and the dpfioiency was made good on the 25th.
The defendants then urged inter alia that the suit was
barred by time, that there was no proper plaint filed on 22nd-
June 1905 as the Oourt«^ee paid was insufficient and that the
suit was properly instituted only when the starmps were made
good on 25th January 1906, about seren months after the period
of limitation had expired.
Both the lower ConrtR have diflmisned the claim as barred
by time because plaintiff should have stamped his plaint on
Rs. 1,866, the market value of the laud admitted in it, and that,
having deliberately omitted to do so, his subsequent making up
of the Court-fee could not validate the original institution of the
suit.
The case was argued at considerable length by counsel on
both sides and a great number of precedents were cited. It may
be said generally that the current of authority in the Calcutta
and Madras High Courts and in this Court is on the whole in
favour of plaints insufficiently stamped when filed being treated as
valid from the date of presentation when the Court permits the
proper amount oE Court-fee to be made good. The Allahabad
Court, however, in recent years has uniformly held the oontrarj
opinion.
In the present instance the lower Courts have too readily
assumed that plaintiff consciously and deliberatly filed his plaint
without proper Court-fee. There is no proof whatever affirmative
by indicating that* he acted in this way. The deed of sale
reciting the land sold with the jama payable without mentioning
that it was assessed on only a very small portion, as well as
the list furnished by the paitoari are calcalated to mislead,
unless attention is specially directed to the fact that the bulk of
the land is unculturable and unassessed, and that, therefore. Court*
fee must be paid as respects the latter on its market value. As
soon as the defect was poinfed out by the defendants, plaintiff's
pleader offered to pay the fee on the market value stated in the
plaint and when such value was fixed by a local com-
misaioDer and the plaintiff was called upon to pay the proper
sam, it was mide good within two days. We di not think there
is aay good reason for attribating had faith to plaintiff.
602 OIVIL JUDGMENTS— No. 128. [
There is no doubt tbat the plaint waa dnly presented, barring
tbe qnestion of Goart-fee, under Seotion 48, Oifil Procedore
Oode, and tbat the Oonrt in levying extra Oonrt-fee, and in
appointing a oommissioner for tbe porpose of valaation Acted
nnder Section 9 of the Oonrt Fees Act and in tbe erercise of the
powers mentioned in clanses (a) and (6) of Seotion 54 of the
Code. There is equally no doubt that the plaint was reoeived
and registered and notice issued on it through mistake or
inadvertence on the part of tbe Oourt or its proper oflBoer.
Under Seotion 6 of tbe Court Fees Aot the plaint
should not have been reoeived or allowed to be filed in the cir-
cumstances of this case, and therefore under Section 28 the
presentation was of no validity. But the Oourt thought fit to
direct the plaint to be properly stamped, as it is empowered to
do by that section, and it has been so stamped in complianoe
with its order. It follows as laid down in the section that the
plaint and every proceeding relative thereto is as valid as if it
had been properly stamped in the first instance.
In our opinion it is not possible to get over these oonse-
quences by any legitimate method of con^truotioo. We have
already said there is no proof that plaintilT wilfully understamp«
ed bis plaint in order to avoid payment of duty. If the Oourt
thought tbat tbe payment was being evaded in hai faith it
might possibly, in a proper case, refuse to allow further payment
of duty, but it is diffioalt to see how it could have done so on
the facts of this case. But whether it had such power or not, it
thought fit to allow the stamps to be m ide good, and when that
was done, the validation of the original presentation in our
opinion inevitably and necessarily followed by operation of law.
A substantially similar view was taken in Tartah Singh v. Kuhan
Dyal (^). We cannot see how the Oonrt could change its mind
subsequently and undo the effect of its action unless such power is
conferred by law. • ' ^
We are further unable to see, with all deference to the
authorities that lay down the contrary, how the Limitation Act can
be said to prevent the validation of the plaint in circnmstanoes
like the above. Section 4, Explanation of the Indian Limita-
tion Act, 1877, provides that a suit is instituted in ordinary cases
when the plaint is presented to the proper officer. The present-
ation of tbe plaint is regulated (1) by the Oode of Oivil Proce-
dure, tbe provisions of which were not violated by the plaintiff
when he filed bis plaint in this case, and (2) in certain particulars
(0 180 P. A,, 1890,
NovB. lien. 3 OltiL iUDGMBNTS-Na-l2^. gOg
by the Court Fees Act, whicli requires thai the plaint shall be
properly valued aod imposes od the Court the duty of euforciug
that rule. Under Section 9 of the Court Fees Act and Section
64, Civil Procedure Code, the Court bas got the plaint properly
stamped on the value ascertained by inquiry. Section :iS of tbe^
Court Fees Act lays down in clear terms that the efiect of such
stamping is to validate the original presentation of the plaint.
It is diflBcnlt to see what the Limitaiion Act, an Act, be it
observed not in /win ma^ena, has got to do with the interpreta-
tion of Section 28 of the Court Fees Act, or why the plain
language of that section should not be enforced because it would
have the effect of nullifying a contention on the head of
limitation.
The plaint was admittedly filed within the periodiprescribed^
for the suit in tha Limitation Act, andsatibhed all the require-
ments of the Code of Civil Procedure, it was insuihcienily
stamped and thus offended agamst a ti;}cal law. Thai law
prescribes the penalty for Uie Dreach ana iieeif ptovioes the
means of getting over ihe cunbtquenccb ol that bieach. The
Court is bouna to give tJiici lo us provisions ana to see
that the public do tiot evade the payment of their dues under
it, but this is the only consideration itgulating its action and
not the pleas of the defenOants in the case before itself. If the
plaint is a nullity under the Court lees Act li it is not properly
atampedy the defendant is undoubtedly entitled to take advantage
of it> but ne cai<not complam li the piovibions oi ihe Act lor^
getting rid of the delect are lawiuliy applita by the Court lOr
that purpose. BesideSi it is a well settled rule that fiscal
enactments require to be strictly construed and that penal
provisions cannot be extended in their scope. A Court cannot
be prevenied from receiving the deficient Court-lee and theic-
by Yalidaiing a plaint from the oiiginal date of prtsentation
beoause a possible plea of limitation would be defeated tliereby
nor justified in deohning to receive such fee.
Even if it is right to lefuse to exercise the discretion to
receive the deficiCLt Couit-lee on such a giouna the validation
that results alter acceptance oi buch lee cannot again be annul*
led, nor has the Court any power to leconbiaer and set aside its
decision. The Court il'ees Act uots not give any sucli power,
and its provisions must be taken to Oe coinpletu lor, ai^u u> bo
the sole gmde in, all n.attei-b witliin its bcope. It aeals witn^
revenue realisable in the snape or Court-reeD| and wlien a
question arises under it the matter lo one exclusively between
the State aud the person who is liable to pay the xoc| and there
^^ 6IVIL JtTDGMEKT8-No. 128. [ Eicobd
can be no hardship 01: injaatioe to a Uiird party if a penalty
preeoribed by it is remitted or the oonseqaeDoee thereof abro-
gated by the Court la acooidance with its provisions.
The news pfopoaoded above are in aGcordauce with Partab
Singh v. Kishen Dyal (}) and Ta/ra Hingh v. Muhammad ('J,
tbe latter case is very analoc^os in its tacts to tue present one.
Jhanda Khan v. Bdhadao' Ali (*) was also a eitnilar casei in wtiich
tbe Conrt lefased tu take additiou«bi Oonrt-£«es on the vaiae
assessed by a conlmissiouer, becanse the limitation for the suit
had then expired. It was heid that uuder bection 54, Civil Pro-
cedure CodOi the Conrt was buaud to give pJaintitf tne option to
make np tbe yefioieut Court-fee. Ihis Conrt was ot opinion that
assuming Section 28 of tno Coui t Ij'ees Act gave a discretion to
tbe Couit to refuse 10 receive tlie dencient stamp on a document
filed before it, such a proviaion was conti oiled in lo&pect of plaints
by iSection 54 of the Code of CiVil Pttictdui'ei which required
that piaintiE should be given ibe opportunity to file the addi-
tional stamp, ihe leasouing of the ieaiiiea Judges harmonis-
ing with the Court i^ues Act, tne Liimit»ition Act, ana the Code of
Civil Froceduroy at page 57 of the leport, has much to reoom-
mend it, and if it be accepted tne case ot tbe present plaintifi
beoomes still stronger, for lu the foregoii«g lemaiks v^e have not
assumed tbut bectiou 54, Civil Pioceduie Code, by iniplioation
can cure tbe defect in tne plaint ab initio^ but bave relied on
the Court's exercise ot its discretion in making piaintifi
tile the deficient stamps for validating tne pxuctedmgs from
tbe beguiuing under ji^ection 2b ot tbe Court l^'ees Act, ^nd
Ui Jhanda Khan y* Bahadar Ali \^^J tbe Court had refnsed^toj
receive tbe stamps. Without derogating from the force of tbe_
reasoning we are of opinion that bectiun 28 is of general applica-
tion* The view of t:)ecuon 54, Civil Procedure Code, taken in
this judgment, with whicb we agree, is supported by an earlier
ruling. 8arda/r Khushal Singh v. Fwran Singh (*).
We are unable to agree with the opinion of the Allahabad
Court in its latest pronouncement on this subject Ohatoflrpal v.
Jagram (*). The facts ot ttiat case are very simitar to tfiubo of
the present case. The learned J udges did not in the judgment
discuss the law, but followed an earlier decision of tbe Court
Muhammad Ahmad v. - Muhammad Siraj-ud-din (*). They
admitted ttiat the case was beyond doubt a hard one, but did not
consider that hard cases should be allowed to make bad law. It
(»J 130 P. B^ 1890. (*) 156 p. R^ 1888.
<») 7* P. B., 1903. i*> i. L. H^ XJLVU AU^ 4iL
;j
<•) ^F.&^ 1893. i^^) I. h. B., XJUU AU^ 42X
N<m. 1907. ] OiyiL JUDOMMTI^Hift m. 0(^
was laid down io the last m^^d judgm^pt |;b»i Sectioa 99 ot
the Conrt Fees Aot did not cover a ease of ander-valaation of
the salt, dod that under Section 54 (a) and (6), Civil Prooedare
Code, the Oonrt ooald not grant time for payment of defioient
stamp dutj so as to extend the period of limitation. In onr
opinion the limitation prescribed for suits shoa)d not be intro-
dnoed as an element in interpreting the word '* presented " in
the explanation to Section 4 of the Limitation Act, and as the
word is not defined in the Act, the obvioqs intention is that it is
to be interpreted in accordance with the Acts which speoiallv
deal with the subject, w., the Code of Civil Procedprp and the
Court Fees Act in the matter of Court-fee payable. Xhe view
taken of the scope of Section 64 (a) and (6) of the Cpde of Civil
Procedure in it is also opposed to that of this Court in 8ar4(^r
Khushal Singh v. Puran Singh (>), which to our minds appci^ii^ii
to be the sounder of the two. We refer here to i^nother judg-
ment of the same Court, viz., ^<4karan Bai v. Opkin4 Nat^
Tiwari (»), in which it was ruled that where ap appeal has been
filed on insufficient stamp, which was subsequentlj m^de good
this stamping could not validate Ihe oiiginal presentation except
under Section 28 of the Court Fees Act, an ord^r under which
could only be passed by a Judge, and solely on the ^ound of ipisf
take or inadvertence. This judgment relates to appeals alon^
but the principles it lays down were disapproved by the Legia-
lature, which enacted Section 582 A, Civil Procedure Code to
counteract its effect. Under that section an appeal insufficiently
stamped by mistake has neverthelcBS the same effect an4
will be as valid as if it had been properly stamped, provided that
the requisite stamp is supplied within a reasonable time fixed
by the Court after the discovery of the mistake. The Full Bench
case and Section 582 A, Civil P^cedure Code, have no furt}ier
bearing on the present discussion than to a&rd ap indication
that the interpretation we are disposed to pot upon the Coprt
Pees Act is in accordance with the intention of the Legislatpre.
JadnH Prasad v. Bachu Singh (») is a ruling on the irterprfta^
tion to be put on clauses (a) and (b) of Section 54, Civil Pror
cedure Code, and it was held therein that the time fixed for
making good the deficient stamp duty must be one which is
within the limitation prescribed for the suit. Lurga Singh y.
Bisheshar Dayal (*) takes the same view. In our opinion how-
ever, with all deference to the learned Judges, the interpretation
of Section j54 by our Court in Sardar Khushal Singh v. Puran
(») 166 ?. B., M88. , <, f (•^ I. L. «., XV Alh, 65, W B
<06
CIVIL JUDGMBNTS-No. 12a. [ ftlcoBD
Singh (*), and Jhanda Khan v. Bahadar Alt (•), appears to be
more in consoDance with tlie object of the Legislature and more
correct. The other construction is likely sometimes to lead to
great injustice and hardsbip. An important suit may, for
instance, be instituted long before the expiration of limitation and
may after a protracted inquiry on the merits be found on objec-
tion by defendant at a late stage to haye been sligbtiy under-
valued and instituted on deficient stamp. The deficiency may
not be more than a fraction of a rupee, but the suit must never-
tbeless on this ground be dismissed. Snob cin interpretation
amounts to laying traps for suitors wbicb no yigilanoe or fore-
sigbt on tbeir part can avoid, and is, therefore, we venture to tbink,
repugnant to the true intent or scope of a purely fiscal enact-
ment like the Court Fees Act. There is nothing in that Act or
even in the Limitation Act which directly or neoessarily leads
to snob a result, and all sucb refinements in the extension of
tbeir penal provisions ought to be avoided.
Though we bave tbe misfortune to differ from the Allah-
bad High Court, we are glad to find that we are supported not
only by previous rulings of this Court, but by tbe authority of the
Calcutta and Madras High Courts in a series of decisions.
MoH Bdhu V. Ohhairi Doa («) is a case in point, in which, though
the deficiency was discovered on the very date of pr^entation,
the filing of the requisite stamps under the order of the Court
was held to validate the original presentation. This view was
approved and followed in Surendra Kumar Basu v. Kunja Behari
Singh (^) and in Bajkiahori Koer v. Madan Mohan Singh (*).
With reference to the Madras High Court, it is only necessary
to refer to Oheunappa v. Haghunatha (^) in which an analogous
point in appeal is decided declining to follow tbe Allahabad Full
Bench caee reported in Balharon Eat v. Qohind Nath-Tiwari (*)
above cited, and this wss. before the ennctroent of Section 582A,
Civil Procedure Code. Fatcha Saheb v. Sub-Collector cf North
Arcot (*) and Asaan v. Pathumma (*) in which the question v^as
ably diecussed by Mr. J. Subramania Ayyar. .... The
Bombay High Court also in a recent judgment, Bhondiram bin
Laxman y. Taba Savadan Q^) has taken a similar view in > case
like the present. Lastly, the remark of their Lordships of the
Privy Council in Skinner v. Orde (^ i), that in oases of this kind
(») 166 P. B., 1888. (•) I. L. fi., jp Mad,, 29.
(•) 8 P. B., 1893. (») I. L. B., XIT AU., 129.
(•) I. L, B., XIX Ooic., 780. (.) I. L, B., XV Mad,. 78.
(*; J. L. B., XXVII Oalc,, 814. (•) I. L. B,,'XXIl Mad., 494.
1*0?!. 1907. ] OIVIL JUDOMinNTlS-No. 12t ^(f^
* the plaint is not converted into a plaint from that time (i.e.,
" when the deficiencj is made good) only bnt remains with its
" original date on the file of the Oonrt and beoomes free from
"the objection of an improper stamp when the oorreot
" stamp has been placed on it " is most pertinent in this conneo-
tion. In our opinion the weight of authority in faTOur of the
oonstmction we are patting on the Court Fees Act, the Civil
Procedure Code, and the Limitation Act in respect of institution
of plaints and defioteoey in stamp duty appears to be overwhem-
ing.
Ldkhay. Munshi Bam{^) was cited in the argument for
the respondents as supporting their contention, but it has no
bearing on the question before us. There the plaint was not
stamped at all and was sent by poet. Here there was no
question of mistake or inadvertence, and the Court had no power
under Section 28 of the Court Fees Act to receive the stamps
subsequently filed by plaintiff of his own motion, and the action
of the Court was altogether uUra vires. The same view was
taken in Parish Singh v. Kishan Dyal (*).
In short our opinion is—
(1) That the word ''presented" in the explanation to
Section 4 of the Indian Limitation Act should be interpreted
in accordance with the provisions of the Code of Civil Pro-
cedure, Section 4&.
(2) That the Court Fees Act and the Civil Procedure Code
should be read together in regard to the presentation of plaints
and the making up of stamp duty, but not with the provisions
of the Limitation Act, which is not an Act in pari materia.
(3) That under Section 54 of the Civil Procedure Code and
Section 28 of the Coart Fees Act deficiency in stamps can be
made good by order of Court irrespective of the question whether
on the date of filing them the limitation for the suit has expired
or not.
(4) That under Section 28 of the Court Fees Act on the
making up of the deficiency of stamp duty by order of Court the
plaint and all proceedings relative thereto are validated from the
date of original presentation, even though the limitation for
the suit had siuce expired.
(5) That once the stamps are taken by the Court the order
cannot be subsequently set aside, nor the validation of the
original presentation annulled.
( >) 50 P. R, 1900. (•) lao P. B., 1890.
9Qi cttth jtnyauttm-^tfo. iu Cite«i>
We accept the appeal an^, reyeraiDg the decrees of the
lower OoortPi remaDd the case to the Conrt of first instance for
trial on the merits.
Respondents will pay costs in all the Oonrts.
Appeal aUowed,
No. 121.
Before Mr. Justice Battigan.
DARBHAN KHAN AND OTHERS,— (Dbfbhdaots),—
APPJlLLANTS,
Appilutb 8i»i. { Versus
SOHAURA MAL,—(PLAiNTiFF)r- RESPONDENT.
Citil Appeal No. 685 of 1906.
Pre'empUon — Sale of a share of joint properif to a stranffer^Buhteqiieni
ticiiuisition of another eharer'e interest by vendee — Suit by a third co-$hmw
ieith respect to first sale alone.
Beld, fhai a person who was at tiie date of sale a co-sharer m the hnl
eanaot claim pre-emp^n in respect of a sale dt that land as agaiBsi tb
Tendee who at the date of sale was not a oo-sharer therein hut became a
co-sharer before the plaintiff institated his suit for pre-emption.
Miscellaneous further appeal from the order of F. /. Dixon, Btquire,
Divisional Judge, Multan Division, dated 20th March 1906.
Beechey, for appellants.
Roeban La), for respondent.
The judgment of the learned Jadge was as follows :-^
tfd Now. 1906. RittiGitv, J.--The facts of this case are liot dispated and are
brifidy as follows :— ^n the 29th October 1903 one Alia Wasaya
add certain land to Sardar Dareban Khan ; and on llth
Febmany >904 one Kban sold certain other lands in the same
khatofs to the said vendee. On the 20th October 1904
plaintiff, who has thronghoat been a co-sharer in thi said
khatae with the exception of a small plot of land, in which
be is merely a tenant-at-will, sued for pre-emption in
respect of the sale of the 29th October 1903, the later sale
of the nth Febmary 1904 not being challenged. The first
Conrt dismissed the claim on the groand that at th^ time
when plaintiff sned, the defendant bad become a co-sharer
in the khatas and had thns an eqnal right with plaintiff.
This decision was reversed on appeal by the Divi-^iooal Jndge,
who held that as the vendee was not a co-sharer in the
khatas at the date of the Sale in qnestiOn, plaintiff had
the right of pre-emption claimed by him, except in respect of the
plot of land above referred to, which forms no pax^t of the khatas
in which plaintiff is, and always has been, a co-sharer.
ISmtL 1907. ] OIYIL JUDGMinrFB^H^ iM. ^0^
Apart, then, from the didpnte as regards this plot of
land, as to which the plaintiff has clearly no right of pre-
emption, the question is whether nnder the oironmstanoes
as above detailed plaintiffs can claim a preferential right on
the ground that at the date of the sale the vendee was
not a eo-sharer in the hhat€U though before the sait for
pre-emption was instituted the latter bad by bis sabseqnent
pnrcbase of the 11th Fehraarj 1904, which stands noimpeacbed,
become snch co-sharer P I have heard all that Messrs. Beeohey
and Roshan Lai had to urge in support of thehr respective
eases^ and the conclnsion at which I have arrited is that
the first CouH was right in dismissing the plaintiff's suit.
A right of pre-emption is a jus ad rem aUenam aequirendam
and not a jus in re aliena ; or, in other . words, the pre-erliptot*
can, if he so wishes, by adopting the proper procedure
acquire another person's property in preference to third persons,
whose rights to such property are, in the eye of coitomary
law, as eanociatod in the Panjaib L\W4 Act, inferior to his.
But a pre-enptor has no right or interest in such property
nntil hi^ right of pre-emption is duly established by the
decree of the Court and he has satisfied the terms cf fbat
decree, and if before he institutes a snit for the purpose of
establishing his right of pre-emption, he had lost his pre^
emptive right, either by some act of his own or by other
eircilmstanoes quite unoonneeted with any volnutary act on
bis part, he cannot claim his preferential rights as against a
person who, at the date of suit, is in possession of the land as
proprietor with rights whiah, for the purposes of pre-emption, are
equal to those of the claimant. I have said that the pre-emptor's
right in the land, as distinguished from his right to acquire the
land, are perfected and completed only when he obtains and
satisfies the deci^, but ttoxA this I do not wish it to be inferred
that his right to claim pre-emption would necessarily be defeated
by an alienation made after the litis cantestatia. The doctrine of
lis pendens might apply to such cases. But this is not the
question before me. The case with which I have to deal is simply
whether A, who was at the date of sale a co-sharer iu the land,
can claim pre-emption in respect of a sale of that land as against
a person who at the date of sale was not a co-sharer therein,
but became a co- sharer before the plaintiff instituted his suit
, for pre-emption ?
There can be no doubt, upon the authorities of AmdruUah
Shah V. TaBe Huss^n (^), Mahtah-udrdini. KaframHahi (*),
0) 188 P. B., 1B84. (•) 78 P. R., 1898.
^10 C'^^ JUDGMBNTS-No. 124 tBio(nl>
- ' ■ --—-•- — - - — ^ - ■ «._^..^_^_«i.i....i_^._...._..i.»..M._i_.i_i.»._^._.ii.^^-^— ^.^
Topan Mai v. Ditki (1)9 ^*ma Bam ▼• Dwi Dyal (*), and
lf!i^ki9mmu{ ^ytt6 Khan v. Stire Z^» (^), that a pre-empior
wbo lofloe his rights of |ire-empiion after the date of sale and
before bringing his salt oannot claim to pre-empt the property in
▼irtne of the right originally possessed by him. And as remarked
by Harris, J., in Rhan v. Mdhanda (*), it is immaterial whether
the pre-emptor has lost his right of preemption by a volnntary
act on his part or by circamatanoes beyond his control. What
the Oonrts hare to look to is the qaeetion whether at the date of
the institation of the pre-emption snit as well as at the date
of the sale the plaintiff has preferential rights compared with
the rights of the defendant in possession of the land. This
proposition is, I rantnre to think, in accord with the real
nature of the right of pre-emption and with the trend of
anthortty (see, in addition to the raliogs aboye referred to,
Bam Hit Singh v. Narain Bai (*), Janki Prasad y. I$har Das (<),
and Bam Oapal ▼. Piari Lai ('), npon principle, it is bnt logical
to hold that if before the person, who has at the date of sale pre-
fereotial rights of purchase, institutes a suit for the purpose of
establishing his right, the original vendee is able to acquire rights
equal to those of the claimant qtM pre-emption, the sale to the
latter cannot be subsequently set aside at the instance of the
claimant. Admittedly the original vendee could defeat the
claimant's right by reselling the land before the institution of the
pre-emption suit to a third person who had equal rights qu^Htd hdo
with the pre-emptor, and I can see no difference io principle why
the vendee should not be able to defeat the pre-emptor*8 right
equally successfully by acquiring for himself, before the
institution of such suit, such equal rights.
The Divisional Judge has referred to two decisions in
support o! his conclusions, but neither case seems to me to
be in point. In Muhammctd Ayub Khan v. Bure Khan (*), it
was held that a person who became a co-sharer after the date cf
the sale could not claim to have a right of pre-emption in respect
of such sale and could not therefore sue for pre-emption. Here
the point is not whether the defendant could have sued fcnr pre-
emption in respect of the sale of the 29th October 1903, but
whether he is not entitled by reason of the sale of the 11th
February 1904, which made him a cosharer in the khatOf to
successfully resist the claim made by the pre-emptor in October
1904 In Muhammad NatooM Khan T. Mussammai Bobo Bahib{^)t
(*) 47 P. Jt. R.. 1905. (•) I. L B. XlVl AU., 389.
(•) 48 P. B., 1901. (•) I.L.R. XXI All., 374.
(*) 95 P. B., 1901. (M I. L. B., XXI AU^ 441.
(«) 39 P. B, 1902. (•) 44 P. B., 1908.
NoffB. 1907. ] oiYiL judgments-No. iss. 611
the oiher Oftse referred to by the Diyisional Jadge this distiDctioB
is yery olearlj brought ont. In this latter caee Ghatterji, J.,
remarked : ** It 10 also nrged thai defendant haying at all eyents
^ immediatelj parted with his own house onght not to be allowed
** to retain the one in suit in the strensfth of his ownership of
^^ihathonse. Bui Tie is defendarU^ noi platntiff^ b,jiA the question
** of priority mnst be decided with reference to the eirtmmstanoes
^^ existing at the time of his purchase, and if he was
''entitled to purchase at the time of sale, he did not forfeit his
''right by parting with his own house afterwards. It would
" Tuive heen different liad the plaintiff been in hi$ petition" For
the reasons giyen I hold that at the date of institution of the
present soit plaintiff had not a right of pre-empt ion in respect
of tbe sale to defendsnt in October 1903 and that hw suit should
therefore have been dismissed. I accordingly accept the appeal
and dismiss plaintiff's suit with costs throngkout.
Appeal aUowid.
No. 125.
Before Mr. Justice Battigan
HAKIM,— (PLAiimrF),^PBTITIONEB. x
Versus |BiTiiio»Sn>i.
RALTA,—(Depeki)aiit),— RESPONDENT. )
Ciyil Reyision No. 1967 of 1906.
Small Cause Court, JurisdieHon of— Butt for damages for hrsaeh of
hsiroihal eontroci—Bmall Cause Courts Act, 1887, BeheduU II, Artkle 8& (p)—
Mevision—JDe/ect of jurisdiction— Twnjah Courti Act, 188i, Beeiion 70 (•).
Held, that a suit for damages for breach of a betrothal contract comet
within dause (g) d Article 85 of the second schedule to the Provincial Small
Cause Courts Act, and as such is excepted from the jurisdiction of a Court of
SmaU Causes.
JfuraY, Alia DUia (>), Ealcim Uvhammad Ashraf Evssciny. Byed
Muhammad Alt (*) referred to.
Eeld, also, that where it appears that an infeiior Court has heard an
appeal which was entertainable by a fvperirr Cctirt, lie Chief Court is not
bound to interfere under its revisioual powers unless failure of justice has
resulted from such defect.
Bansa y. Bam Bingh (*) cited.
The judgment of the learned Judge was as follows :— *
RATnOAH, J.— The facts alleged in the plaint were that ig^j jp^5. 1907.
Raija, defendant, had betrothed his daughter, Mussammat Nand
Eour, to Moti, plaintiff No. 2, but had subsequrntlj giyen her in
(») 182 P, B^ 1889. (•W.l.E.,XZirifa««.,661
(•)«6P.A.1«0«,#.B^
612 ^^^^^ JUDOMBNM-No. US. [
mMnriage to a third person. PtaiDtifts, who are father and eon,
soe for Bs. 500 as oompensatiooy and assess their damages as
follows :-<^
(1)|Bb. 80 paid to Balya on the day of the betrothal ;
(2) (is. 250y the value of jewellerj and garments snbse-
qaently given to Balya for the nse of Mndsammat Naod
Konr;
(8) Bs. 100 paid to Balya for expenses in eonneetion with
the proposed marriage ; and
(4) Bs. 70 as compensation for breach of eontraot.
The qnestions before me are (a) whether the District Judge
had jnrisdiotion to hear and decide the appeal to fais Coart^ and
(6) whether, if he bad no^sneh jnrisdictioD, this Conrt shonld
interfere on the revision side, regard being had to the remarks
of tb« f^\ Bench in Hansa v. Ram Singh (i).
/
The answer to the first question depends on whether the
snit is a snit cognizable by a Small Caase Court, or an ' undassed '
suit as defined in Section 3 of the Punjab Oonrts Act.
In my opinion the ruling of this Court in Nura v. AUa
Ditta (') is directly in point. In that case plaintiff sued to recover
Bs. 150 from defendant od the ground that the latter bad
taken that sum from the plaintiff, promising to give him his
daughter in marriage, but had failed to do so. The learned
Judgoi (Prizelle and Biv9z, JJ.) held that the daim fell within
clause (jg) of Article 35 of the Provincial Small Cause Courts Ac(^
1887, the expression " compensation** as used in that oU^ub9 ba^*
}pg the same meaniog as in Section 73 of the Indian CpntrfU^
Aot, 1872,
For respondents Mr. Eharak Singh refers to the decision
of the High Court of Madras in Hahim Muhammad A»hr(4
Husain v. Bayed Muhammad Alt (^), where it is laid down that
a suit for compensation for breach of promise of marriage is a
suit of tbe nature of an action for breach of promises as upder-
stood in English law and that a suit by a plaintiff who claims
damages for breach of a contract of marriage entered into
between his father and the father of the girl does oot fall ander
clause (g) of the article. But clause (g) refers also to saits for
compensation for breach of contract of betrothal, aad I see no
reason why plaintiff No. 1, who entered into the contract with
(») 36 P. a., 1902, r. B. (•) 182 P. n,
NoTB. 1907. 1
CIVIL JOBGMBNTS— Ko. 186. 61 J^
defendani Fo. 1, slioald be debarred from «aing tbe latter for
oompeiiBation for ite breach.
I hold, therefore, that the suit wae an unolassed snit, and ae
it was of value exceeding Re. 100 the District Judge had no
. jarisdiotion to hear it. Bat am I on this aooount bound to
interfere P Mr. Nanak Ohand contends that I am, and argues that
the remarka of the Fall Bench in the case cited have reference
merely to those cases where a superior Court hears and decides
an appeal which should properly hare been presented to an
inferior Court. If, on the other hand, urges the learned counsel,
an inferior Oonrt hears an appeal which was entertainable by a
saporior 0 >urfc, the parties are necessarily prejudiced, as they
were entitled to have their case decided by an oflBoer who from
his position must be more experienced than the officer who has
in point o! faot determined the appeal. This aVgument is not
without force, but without attempting to lay down any genenU
rule. I think that this Court must in all such cases have regard
totheoarticuUr f*ct, and must decide in each case upon these
fact, wa^thar or n.t the defeat of jurisdiction has actually
praiuliosl th. party who cooiplains of the want of junsd.ct.on
This is how I read the judgment of the Full Bench, and I do not
think that the learned Jodijes intended to draw any such
distinction as Mr. Nanak Chand now contends for.
In the present instance the case has on appeal been very
oawfully and fully considered by the District Judge, who is an
officer of experience, and Mr. Nanak Chand was not able to point
to M.y drcumetance from which prejudice to h,s ohent might be
inferred. I accordingly reject this application with costo.
Afplieaiion ditmisied.
No. 126-
Before Mr. Justice JohnaUme and Mr. Justice BatUgan.
NABPAT RAI AND ANOTHER,— (D«FBn>AHt9),—
APPELLANTS,
Versus \ Arrau^t Su*
DEVI DAS AND OTHERS,-(PLinmfFB),-RBSPONDBNTS.
Civil Appeal No. 806 of 1906.
AAitr<aion^Agreement tor»ffrU> arbitration- .lpplie««o» to f^ ««*
f^itr-OiM rrf>t»Aw,s Cods, 1882, B*etion 688.
. HM ttatwhenaCourt acting «»der8ecti« 688. CiTflProceditte Code.
?« ^rt to refer to •rbitration lo U filtd «.d I8U« « »C» of
614 OIVIL JUOGllENTS^No. 126. [
refsrenoe tbereon an appeal Hqb frcmi snoh order wbich is a " decree ** witUs
tbe saeadng pf tiuit expression as defined in tlie Code. '
r Jhangi Bam v. Budho Bai (^), Qfiulan JUtmi v. Iftt^amiiiad ffuMoAi (*)i
Pounuaami Mudali v. JIafidt Sundara Mudoli (*), TMVuvm^a DaitiM^oriT.
FatdaiiaeHa Ayvar (*), and Janod&^y llTatA Qnha v. Bre^o lol GMba (')
dted and fcQIowed.
EaUkRam T. Baku Lai (>) and BotanC Lai T. JTmi/JIal (') dii-
tingoished and not approred.
Fint appeal frimthe decree of Sheikh Miran BaUuhf 8ulh '
Jiidg^j Lahore, dated 7th July 1906.
Grey, Mnhammad Sbafi, Sokh Dial and Tiraih Bam, for
appellants.
Beeobeyt Oaopat Bai and Darga Dae, for re^ondenta.
On the qaestion of right to appeal, the following jadgment
was delivered by
\9th Jany. 1907. ' BiTTiaAV, J. (JoHneroNB, J., oononrring).— Mr. Beechey, for
reflpondenta, arges as a preliminary ohjeotion that no appeal lies
in this case* and the question whioh we have to decide, upon this
objection, is whether an appeal lies when the Oonrt acting noder
Section 523, Oivil Procedare Code, oanses an agreement to rsfer
to arbitration to be filed and makes an order of referenoe theraoa.
It 18 obmmon ground between the parties that an appeal liss
in snoh a case only if the order of the ^Court is '' a deoree" as
defined in Section 2 of the Oode, that is to say, if it is "^tiie
formal expression of an adjudication upon any right chimed
or defence set up, in a Civil Court, when such ndjadication, ao
far as regards the Court expressing it, decides the snit or
appeal.**
We have the authority of the Full Bench of thisOoati
for the proposition that aii order under Section 528 of the Oode
reif using to accept an application under that section is a deoraa
gnd appealable as such (Jhangi Bam y. BuMo Bai 0))* The
question now before us is whether an order accepting snob an
application and making the order of referenoe as prayed for is
also a decree.
Mr. Beechey argues that there is a£ essential dilFerenc^tetweeD
the two cases. If the application is rejedted, the Coort has finally
adjudicated upon the matter before it so far as it is conoefoed*
^ut if tlie application is accepted and a reference is ihexet»
made to the arUtrators, the first step is Jiafce;^ in pi^pceediDgi
a
, 84 P. B.; 1901, r. B. (•) I. X. B.. XTfX Jftfd.VSaS.
;•) 25 P. B., 1902. P. 0. "' (*7 1. X. Bj, 22ZOT OaUe.,1%7.
I.L.B., JXVn Mad,, 265. (•) 1. X. B^ XXFX Att., Wk
(t)I.£.B.,ZXn//^U.,Sl.
VcfA. 190r. ] CIVIL JlTDaMBNTS— No. 196. 615
whieh are to be treated as a enit. The aooeptanoe of the applied
ticm (jBO Mr. Beeehey contends) is the initial step in the suit.
Onoe this step is taken, the '' suit *' really begins and the subso-
qnent proceedings are proceedings in the suit so started, and the
BQitrdoes not terminate until tbe arbitratoi'S bave giyexi their
award and the Court has passed a decree in the terms of the
award. In support of his argument, the learned counsel referred
to tbe proTisions of Section 624, Civil Procedure Code, which
provide that '' tbe foregoing provisions of this chapter, so far as
they are consistent with any agreement so 61ed, shall be applicable
to all proceedings under an order of reference made by the Court
nnder Section 523 and to tbe award of arbitration, and*to the
enforcement of the decree founded thereon/' These provisions,
according to the learned counsels^ argument, clearly imply that the
' *^ stit ^ is not- term ins ted ipso facto on the making of the order of
reference. The learned counsel further urged in support of his
contention, that the order of teference under Section 523 does
not in ^ny sense, so f«r as tbe Court making it, decide tbe " suit."
The Court, it is urged, has still to waH then ward of arbitration,
audits 6nal adjudication takes place only when it makes its
decree upon the award. As another, but subsidiary argument,
it is said that it would be most anomalou<i that there should be
two decrees in one and tbe same suit, the one " decree** being the
order of reference under Section 523 and tbe other " decree "
being- tbe decree msde on the award. The latter argninent
does not seem to me to be fatal to Appellants' contention, for,
though a'nomnlous, there can undoubtedly in some caf^es be two
decrees in one and tbe same suit. For example, in a suit for
dissolution of partnership there is first tbe preliminary decree
fbx^'dissdlution, and secondly the final decree. (See Nos. 132 and
ISSoftb^ form decree in Schedule IV of the Civil Procedure
Code). I am not prepared, however, to sny that <l»ere is no force
in Mr. Beecbey's argument in tbe other reppecfs, but feel that the
queetion before us is really concluded by the expression of opinion
in their Lordships of tbe Privy Council decision in the case of
Ohullmn Jthm V. Muha/mmad Hassan (^). In this case their
Lordships pointed tat tiiat the chapter in the Code of Civil
Procedure on Beference to Arbitration (Chapter XXXVI) deals
with arbitration under three beads —
(1) '' Where tbe parties to a litigation desire to refer any
matter in difFerenoe between them in suit. In that case all
proceedings from first to last are under the supervision of the
Court."
■ ■ — - ' ' "•~"~- ' ' ' .^. ■ . . . ^ ^^.^^.^^.^^
QIQ CIVIL JUDaiCBNTS-No. 126. [ ElOOlO
(2) "Where parties withont having reoonrse to litigation
agree to refer their differeDces to arbitration, and it is desired
that the agreement of reference should have the sanction of the
Conrt. In that case all fnrther proceedings are nnder the
supervision of the Conrt. *'
(8) ''When the agreement of reference is made, and the
arbitration itself takes place without the interientioD of the
Court, and the assistance of the Court is only sought in order to
give efEect to award."
The present case obvionsly falls under the second of the
above headings, and with reference to such cases their Lordships
observed : " In oases falling under heads 11 and III proceedings
*' described as a suit and registered as such must be taken in
" order to bring the matter — tJie agreement to refer ^ or the award,
'* as the case may be — under the cognizance of the Court. That is,
" or may be, a litigious proceeding— -cause may be shown against
the application— a/2(2 it wotdtl seem that the order made thereon U
'' a decree within the miming of that expression as defined in &e
" Oivil Procedure Code.** This, no donbt, is a mere obiter dictun^
but even so, the Courts of this country are not entitled, in
my opinion, to decide oonnter^to so clearly an expressed opinion
of the highest Court of Appeal. The Full Bench of the Madras
Hifirh Conrt, with reference to the passage cited, remarked:
''This is a considered dictum and is, we think, fnlly in
accordance with the scheme and policy of the Code. ** {Pouna*
samt Mudali y, Mandi Sundara Mudali {^), tki page 258). Ifr.
Beechey relies npon the decisions of the Allahabad High Conrt in
Katih Bam v. Babu Lai (') and Basant Lnl v. Kunji Lai ('),
but these cases are clearly distinguishable, the decision in them
being that an order under Section 525 refusing to file an award
is not appealable. These decisions are, however, opposed to the
ruling of the Full Bench of this Court in Jhangi Bam v. Bvdho
Bai f *), and to a number of rulings of the other High GoortB
(e. ^., Thiruvenga Datiiengarh v. Vaidanatha Ayyar (*), and
Janodkey Nath Ouha v. Brojo Lai Ouha (•)).
I would, therefore, hold npon the authority of the passage
quoted from Ohnlam Jilani*s case and the ruling in Jhaogi Ram's
case (for I cannot personally see any vital distinction qud the
right of appeal, between an order accepting or an order rejecting
an application nnder Section 523) that an appeal lies in the
present case.
L. B., I XVII Mad , 266, (*) 84 P. i?., 1901, F. B.
I. JJ., IITJ All, 206. (•) I. L. B., XJJX Mad,, SODL
UB^ XXrm All, 21. (•) I. i, B., XIXIJI Calc, 767.
NoYl. 190^. 3 CIVIL JUDQMBNTB— No. 127. Ql^
No. 127.
Before Mr. Justice Chatterji, C. 7. E.^ and Mr. Justice
Johnstone.
BARKAT ALI,— (Defendant),— APPELLANT,
yersus /AppKLun 8n>B.
JHANDU,—(PLAiimFf),— RESPONDENT.
Civil Appeal No. 732 of 1906.
Custom — Alienaiicft^Qift of oficefiral proferly hy childless proprUtor
in favour of strangers— Awans of Jvllutidur District.
Held, that by custom among Awans of the Julkndur District a childless
proprietor is Dot competent to make a free and absolute gift of his ancestral
land to strangers and non-relations in the presence of his male agnates.
Further appeal from the decree of Major B. 0. Ii'oe, Divisional
Judge^ JuUundur THvision^ dated Wth March 1906.
Goreharan Singh, for appellant.
Shiv Narain, for respondent.
The judgment of the Court was delivered bj
Cbattebji, J.— This appeal and No. 66 of 1906 are cross Srd April 1907.
appeals and will be disposed of by one judgment.
Tbe material facts are given in the judgments of the Lower
Courts. The parties are Awans of Phu)pur and Kadinnwali in
the JuUundur tahsil and District, and tbe disputed land is
situate at the latter place, while plaintifis are landholders and
residents of Phulpur. The settlement pedigree tables of both
villages show the relationship of the plaintifE to Boda, the
original proprietor rf the land, who made a gift of half of it to
Jiwa, defendant's uncle.
In this appeal by the defendant tbe questions for decision
are (1) whether tbe land has descended from Asbraf, tbe common
aneestor of the plaintiffs, and Roda, (2) whether tbe heirs of the
donor have by custom a right of reversion.
In the cross appeal the points for determination are—
(1) whether tbe plaintiffs are entitled to recover the half
share which Jiwa did not get by gift, but got possession of
without title and made over to ^abtab^ bis brother :
(2) whether the plaintiff's claim to tbe bouse is established.
Taking up tbe defendant's appeal first, we are clearly of
opinion that the land is ancestral. The qaifiat of tbe settlement
pedigree of Kadianwali shows that Ashraf got it from bis father-
in-law, Ditta, one of tbe original proprietors of tha villaga, and
6l8 CIVIL JUDGMlfiNTS— No. 128. [ ttlOOEO
the plaintiffs are tberefore entitled to claim as reyersioners of
Jiwa — who got one half by gift— on failure of his direct male
line. It is argned on the second point that among Awans the
power of fllienaiion is plenniy, and tbut therefore Ihe principle of
return of the gifted land to the agnatic relations of the donor is not
applicable in the present case. We have refeired to the anthoriiies
bearing on the powers of Awan proprietors to alienate ancestral
land in their possession in the presence of agnates and the latest
of them, Khudayar v. Fatteh (<), in which the earlier nilings are
cited and considered, is a case from the Jhelnm District. We are
nnable to bold on these rulings and on the evidence offered in
this case that an Awan in the jDllnndur District has absolute and
uncontrolled right <o giTe hvay ticfi tii 1 lud to Min jeif j i d
non -relations to the prejudice of his collateral lelations, though
his powers of disposition are undoubtedly large, and we see no
reason to think that the ordinary principle of revei*s]on of tbe
gifted land to the donor's line on failure of the donee's lineal
heirs does not apply in the present instance.
We accordingly reject defendant's appeaL
As regards plaintiffs' appeal, we aie unable to find any
specific evidence as to the existence of the house claimed or to
differ from the first Court's opinion on this point. As regards
the half share of land not ^gifted to Jiwa, but held by him and
made over in his life-time to his brother Mahtab, we hold
thatJiwa's possession was adverse and that plaintiffs' right to
sue accrued on Roda's death, more than thirty years ago. It is
too late now for plaintiffs to make any claim to this share.
The ci'oss appeal must also fail.
We dismiss both appeals with costs.
Appeal dismissed.
No. 128.
Before Sir William Clark, Ki., Chief Judge.
HAZARA,— (Plaintiff),— PETITIONER,
EaviBioN SiDB. ] Versus
BISHEN SINGH,-(Defendant),— RESPONDENT.
Civil Revision No 97 of 1907.
Specific Belief Act, 1877, Section 4S^8uitfor declaration^ Further reli^
— Amendment of plaint.
Held that a suit for a declaration should not be dismissed merely because
the plaintiff being able to seek further relief has omitted to claim it In
(^ 8 P. R.f 1906.
OiCB. 1907. ] CIVIL JUDQMBSTS-No. 128. 619
such a ease the Court most allow plaintiff to amend his plaint by asking for
the further relief.
FMtionfor remsion of the order of Kazi Muhammad Aslam,
Divinonal Judge, Berotepore Division, dated hth Jan9 1906.
Devi Dial, for petitioner.
Kbarak Siogh, for respondent. '
The jadgmenb of the learnod OhioF Jndge was as follows :— •
Clark, 0. J.— PlaintiffV salt was to h we cafc certain trees 2nd May 1907.
on plaintiffs' land, which had been sold to defendant as they r:
were damaging plaintiffs' crops. The sait was coached in the
form of a declaratoiy snit to the effect that defendants were
not entitled to keep the trees standing on plaintiff's land.
The first Gonrt gave the plaintiffs a declaratory decree to the
above effect with a direction that defendant shonld cat the
trees.
The learned Divisional Judge, Kazi Muhammad Aslam
Khan, held that the suit woald not lie ; he said " The plaintiffs
*' had a oonseqaentiai relief to seek in this case, that is, a
" permanent injnnction to restrain the defon«lnnt to allow the
" trees to stand in their land and to cut t'eoi
" as this relief was not sonpfht, the suit for a declaration could
*' not lie '* and he dismissed the snit.
The action of the Divi<ional Judge waa thus instead of
settling the dispnte existing between the parties to render
nseless the whole of the litigation between the parties, and
to throw plaintiff back on a fresh sait to secure the same object.
It is most desirable whenever possible that Courts should
settle the dispute that has arisen between parties ; this was done
in this case by the first Court and shoald not have been nndono
by the Divisional Judge. If there was any irregularity in the
first Ooart in not having required formal amendment of the
plaint, this oouid have been rectified by the Appellate Court.
I accept the revision and remand the case underSaction 562 ,
• Civil Procedure Code, for disposal of tho appeal on the merits.
Court fee on this revision will bo refunded. Other costs will
be costs in the oase.
Application aUotced.
620
CIVIL JUDGMENTS-No. 180.
BlOOKD
Appbluti 8n>B.
6th April 1907.
RiYISION SiDB.
No. 129.
Before Sir WiUiam Ciark, KL, Chief Judge.
RAM MAL ANDOTHERS,—(PLAiNTrFFs),— APPELLANTS,
Versus
SHAHAMAD KHAN,-(DBTONDANT),~RESPONnENT.
Civil Appeal No. 355 of 1906.
Appeal — Appeal from exercise of dhcretion^Oro^ind^ of interference.
Held that a Oourt of appeal ought not to interfere with the exerdso
of the discretion of an original Oourt unless there is some substantial
grievance.
Further appeal from the decree ofManlvi Inam AU^ Divisional
Judge^ Shahpur Division^ dated 20th January 1906.
M. S. Bhagat, for appellants.
Shahab-ud-din, for respondents.
The judgment of the learned Chief Judge was as follows :—
Clark, C. J.«-*PlaintifEs sued for R^. 1,963 on aoooant and the
first Court decreed Rs. 1,797 allowing interest at Re l-8|>er cent.
per mensem. Defendant appealed and the second Conrb decreed
Rs. 1,637 allowing interest at Re. I per cent, per mensem. Plaintiff
now appeals claiming interest at Rs. 2 per cent, per mensem.
I think defendant would have been well advised, if be had
accepted the decision of the first Coart and plaintiff would
have been equally well advised if he had accepted the
decision of the aoconi O^urfe. Aopaals about trifles, when
there has ba^a sub^fcantl\l justice dine, should bi dis enraged.
Partie«i should accept a decision by a Court, unless there is
some subnfcantial grievance. No sufficient reason is m\de out
for disturbing the rate of interest as fixed by the second Court.
The appeal is dismissed. Parties will bear their own costs
of this appeal.
Appeal dismissed.
No. 130.
Before Sir William Glarh, KL, Chief Judge.
PURAN,— (Plaintiff),— PETmONBR,
Versus
MAMUN,— (Defendant),— RESPONDENT.
Civil Revision No. 1001 of 1906.
Occupancy rights — Succession to — xjommon ancestor not o*c}ipy%«§
land^Entry in Wajib-ul-arz overriding provisions of law^ Agreement-'
Punjab Tenancy Act, 1887, Sections 111, 112.
Held, that unier Sastion? Ill and 1 12 of the Paajab Teaancy Act, 18 7
an entry in a rasorj of rights prior to 1871 pronlin^ rules ovar-ridin^f th9
DfCB. 1907. ] CIVIL JDDGMBNTS-No. 130. ^21
provisions of law with respect to succession to land in which a right of
occupancy subsists should be deemed to be an agreement and enforced as
such notwithstanding the restrictions contained in proviso to Section 59.
Petition for revision of the order of Major 0. 0. Beadon^
Divisional Judge, Boshiarpur Division^ datid \2th January 1906.
Sbah Nawaz, for petiiioDer.
Miran Baklisb, for respondent.
The jadgment of the learned Chief Judge was as follows :—
Olabk, 0. J.— The facts of this case are given in the Uth Jany. 1907.
judgment of the Divisional Judge which runs as follows:—
" MamoD, defendant, and Ata Muhammad, defendant, are
•• sons of Jbande Khan and the other defendants aie descendants
''of Ranjhe Khan.
« Snba was occupancy tenant of fields No. 686 and 662
•* at his death and was succeedpd hy bis widow Mussammat
"Bego.
" Mussammat Bego having died, the defendants have
" taken possession of these fields and mutation has taken
"place in their favour as heirs of Suba.
" The proprietors of ' the land now sue to eject^
"defendants as trespassors and claim pospesnion of these
"two fields. Defendants allege that Jbande Khan, Snba and
" Ran jhe Khan were brothers and sons of Murad Khan, who at
" one time ooonpied the land.
** There is a clear provision in the Wajih-ulart of the
" Settlement of ? 852 and in the Wajih^uUarz of the Settlement
" of 1884 which gives the right of succes sion among occupancy
" tenants to collaterals whether or not the common ancestor
" held the land. Thus Section 69 of Tenai cy Act does not
" apply, and if defendants are collaterals of Suba, they are
" entitled by Sections 111 and 112 of the Tenancy Act to succeed
" to the land under the clause in the Wajib-ul-arz .
« The Lower Court has held that defendants are not
"collaterals of Suba, chiefly on the ground that Mamun,
"defendant, when shown in the Settlement record as agent of
*MnsMmmat Bego is described as her 'hrad«rzada\ but
"it is clear that the word 'hradarzada' was not intended to
** mean • son of Bego's brother', but referred to the relationship
"between Mamun and Mussammat Bego's husband. I have
" sent for and examined the Settlement records of 1862 and 1884.
"It is true that at the first Settlement of 1862 the names
" of Jhande Khan, his sons or Snba were not included among
Q22 ^^^^ JUDQMBNTS— No. 180. L Hicoto
" the ocoapancj tenants of the village. It is also trae that
'' BaDJhe KhaVs father's name caDnot he foQnd in the old
"Settlement reoords and that, though Banjhe Khao*8 80D8al
" the Settlement of 1852 were occnpancj tenants in the Tillage
" and held a part of the land now in dispute with other land,
" they did not hold the whole of the lacd in diFpnta Field
" No. 586 formed part of old field No. 572 which at the Settle-
'' meut of 1852 was held hy Ranjhe Khan's son*, hut Ma 662,
•* which corresponds to old Nos. 559, 553, 557, 552 and min. 556,
" was in the possession of the proprietors (khudhuTU) at the
<* Settlement of 1852.
" It is not clear how Suha came into pospession of land as
" occupancy tenant, but it cannot be disputed that after Settle-
"mentof 1852 he was recorded as occupancy tenant of land
" which he got partly from Banjhe Khan's sons and partly
'* from the propiietors.
" In 1878 mutation proceedings took place by which
«* Jhande Khan became ^recorded occupancy tenant of half the
« land which was then in possession of Suba. These mntation
•* proceedings show that Jhande Khan and Suba were brothers
•« and sons of Murad Khan, and the proprietors whose state-
« ment was recorded admiited Jhande Khan's right as co-sharer
•* with his brother saying that his name had been omitted from
" the revenue records owing to his absence on service when they
" were prepared.
« Thus there is no doubt tbat Mamun and Ata Muhammad are
« nephews of Suba, and as it is not likely that they would admit
«the descendants of Eanjhe Khan as co-heirs with them-
*' selves to Suba unless Ranjhe Khan had been Suba's brother,
•« and as one of the fields l«ft by Suba was held hy Ranjhe
" Khan's sons at the Settlement of 1852, and hence was probably
«• atone time held by a common ancestor of Suba and Banjhe
" Khan I see no reason to doubt that all the defendants are
" collaterals of Suba.
** With reference to my order of 23rd October* 1 905 I do not
" consider it necessary to award special costs for the adjoorn-
"ment on that date. Neither party can bo held responsible
" for the adjournment because without adjourning I ooold not
«* have examined the Settlement Records, and without examininf?
" the original Settlement Records I could not have decided
'* the appeal.
"I acoept the appeal and, reversing the Lower Courts
" deoxee, I diflmisa the phuntiffs suit with coBta throughout."
Dso . 1907. ] CIVIL JUBGMBNTS-No. 180. 628
He liolds that onder the entries in the Wajthtd'arM of
1852 and 1884 there is a e'peoial agreement as regards snooession
to occupancy rights, over-riding the law laid down in Section 59
of the Punjab Tenancy Act, and that under this agreement
collaterals sncceed whether or not the land was held by the
common ancestor of the claimant and the last occupant of
the land.
It becomes necessary therefore to consider carefully Sections
111 and 112 of the Tenancy Act.
These sections are an amendment of Section 2 of the Tenancy
Act of 1868y and are with reference to the question of how far
parties should be allowed to contract themselves out of the terms
of the Act, either by existing or fatare contracts. Section 2 of the
old Act saved all written sgreements between landlords and
tenants and gave the force of agreements to all entries in
Settlement Records made and sanctioned prior to the year 1871
as regards question of rent, ejectment, alienation and succession
and compensation. The intention of the Act of 1887 was to
cartail the right of persons to contract themselves out of the
terms of the Act especially as regards rent, ejectment and
compensation, bnt the validity given by the law of 1868 to entries
in Settlement Records prior to 1871 was maintained, and the
right of persons in fntnre to contract themselves ont of the terms
of the Act, except as regards the matters noticed above, was
declared.
Parties can therefore by written agreement either prior or
sabsquent to 1871 settle on a law of succession different from
the succession prescribed in the Act.
In this case we have to consider the effect of the entry in
the WajUhul-arz of 1852 (prior to 1871) and the effect of the
entry in the Wapb-ul-are of 1884 (subseqaent to 1871), ».e.,
whether they are agreements or not. The wording of Section 112
is that an entry prior to 1871 with respect to the sncoession to
laud in which aright of occupancy subsists is an agreement.
In 1852 Saba had a right of occupancy only in field
No, 586, and none in No. 662 which was held by the proprietors
in their own hands. It is therefore only as regards No. 586 that
the entry amounts to an agreement, it does not constitute
ftn agreement as regards No. 662 in which at the time
no right of occapancy subsisted. I think that the word
*' sabsists " refers to subsisting at the time of making the entry,
ftnd does not refer to land in which occupancy rights were
Bnbsequently acquiied and subsisted at the time of the aait.
524 OIVIL'JUDQMBNTB-No. 18L [ Ebcokb
Ab regards No. 662 we bave to oonsider whether the eniiy
in the Wajib-uharz oi 1884 Settlement is an agreement. .
This question is discassed at some length in DiUuWi Ram ▼.
Nathu Singh (*)atpage 356. The reasoning there is I think
correct, there was no intention of the parties to enter into an
agreement in the sense of mutaal promises, there was onlj an
expression of opinion that the saooession shonld follow a
particular course.
I therefore hold that there was no agreement in the Wajib*
vl-arz of 1884 and the course of snecession laid down in
Section 59 of the Tenancy Act mnst prevail as regards 6e1d
Ko. 662.
1 therefore accept the appeal so far as to dectee the sait aa
regards field No. 662 and dismiss it as regards field No« 586.
Parties will bear their own oosts tbroughont.
Appeal alhw$d.
No. 131.
Before Sir William Clark, Kt., Chief Judge.
LADHU,—(PiAiNTiFP),— PETITIONER,
H.TOI0HBID1. ^ y^^^^
SABDAB MUHAMMAD,— (Dbfehdant),-RESPONDBNT.
Civil Revision No. 725 of 1907.
Pre-emption^ Limitation a« regarde rights already accrued-^Punjab
Pre'emption Act, 1905, Sections 2 (8>, 28, 29.
Held, thai Section 29 of the Punjab Pre-emption Act, 1905, is the sub-
stantiye section fixing the period of liaiitation and bySection 2 (3) it applies
to every claim to the right of pre-emption whether that ri^^t has aocraed
before or after its commencement.
Section 28 is not a substantive section, it only provides a period of oce
year from the 11th May 1905 during which, in spite of the shorter period
provided by Section 20, parties might exercise ri^ts of pre-emption which
had already accrued to them and which might be barred under the latter
section.
Petition for revision of the order of 0. K Atkins, Esquire^ Divisional
Judgey Ferozepore Divisionj dated 29th November 1906,
Dnrga Das, for petitioner.
Ghatterji, for respondent.
(») 88 P. B., 1894, F. B.
Dioi. 1907. J OITIL JUDaMiNTS-No. 1^1. gi|5
The jadgment of the learned Chief Jadge was as^foUows ^-«
Olabk, 0. J.— 'This is a pre-emption snit. The sale took
plaoe on 5th Angnst 1904. \Mntation >fj names took plaoe on
27th Jnne 1905. The Pre-emption Aot oame into force on 11th
May 1905. The snit was institnted on 27th Jane 1906.
The sale included a share of shamiUxty and Article 120,
Schednle II, of the Limitation Aot, gave plaintiff six years* limita-
tion under the old Pre-emption Law. Plaintiff's right to sne had
aocrned before the new Aot came into force and the Lower Oonrts
have held that Section 28 of the new Act is the substantive
seotion laying down the period of limitation tor sooh ^uite and
that plaintiff's snit ]i8^ barred.
This view of the law is, I think, wrong, the object]of Seotion
28 was simply to provide a period of one year during which, in
spite of the n^w period provided by Section 29, parties might
exercise right of pre-emption, which had already aocrned to them,
and which might be barred under Seotion 29. Section 29 is the
substantive section fixing the period of limitation, and by Seotion
2 (3) it applies/* to every claim to the right of pre-emption
*' whether that right has accrued before dr after its commence-
" ment"*
Seotion 28* therefore has no bearing -at all on this case.
Section 29 is the section that fixes the period of limitation, and
it gives plaintiff one year from the date of ]the attestation.
The suit is therefore not barred by limitation on' the grounds
found by the Lower Oonrts.
I accept the revision 'and set aside the orders of the Lower
Courts and direct the first Oourt to dispose of the case.
Court fee* on this revision* will be refunded, other oosts
will be ooets in the case.
ApfUoati§n Mow^d.
5M /tme 1907.
^2^ OlVfL JDDGMBNTB— No. 132. [ toooiD
No. 132.
Before Mr, Justice Chatterji, GJ.K., and Mr Jurtice
Johnstone,
GULZaRI MAL,—(PLArNTiFP),— appellant,
AFfiLr.iTi siDM. { Versus
KISHAN OHAND,— (Defendant),— ElESPONOENT.
Civil Appeal No. 123 of 1906.
Trust and trustee—Suit by settlor ogaiMt trustee on failurs of the object
of a trust to recover trutilfundslJor himself Starting point of limitationr'
Unsigned statement of account in defendant's boohs— Acknowledgment-
Mutual account-Indian Limitation Act, 1877, SecHons 10, 19. irtidw 64, 85.
120 ^Contract- Contract to pay' a]debt barred by UmitaUon Law-Contract
Act, 1872, SecUon 25 (c).
Held that where the author of a trust on failure of its objects sues to
recover trust property in the hands of a trustee for his own use and not fer
the purposes of the trust, Section 11 of the Indian Limitation Ad ii
inapplicable.
Suchasuit'beinga'suitto reconvey trust property to the settlor the
limitation applicable is that prescribed in Article 120 and will commence to
run from the date of the failure of the object of the trust.
Kherodemoney Dossee r. Doorgamoney Bosses (^), Oreender Chun^er
Ohose V. Mackintosh i""), Jasoda Bibi r. Parmanand (»•), Hemangin* Dasi
T. Nobin Chand Ohose • ♦^ Cowasji v. Rustomji (») cited and followed.
Held also that a bare statement of account in a defendants books in Um
hand-writing of the plaintiff himself such as " Daskhat (plaintiff) rupia
&3,526-5.9 hisab samajke baqinikalli '* made up largely of a barred
item transferred from another account which had not been signed
by the defendant or his authorised agent in that behalf is useless
for the purposes of limitation and does not create a fresh starting point, as
it neither amounts to an acknowledgment within the provisions of Section 19,
nor to an account stated under Article 64 of the Limitation Act or to a promise
to pay within the meaning of Section 25 ^c) of the Indian Contract Act. In
such a case the transfer of the barred item without observation ofdui
formalities to a mutual open and current account even with defendants
consent cannot over-ride the Law of Limitation.
Sadfisooh Agnrwalla v. Baihanta Nath (•), Bam Dita v. Ibrahim^ud-din ('),
ChowJcsi V. Chowksi (•), Ranchhoddas v. Jeychand (•), Qangaprasai V.
Bamdayal (»<>), Mahbub Jan v. Nur-udMn (")i Ganssh v. Oyanu (**), and
Velu Pillai v. Qhose Mahomed (^*), referred to and distinguished.
(») I. L. R., IV Oalc, 455. {') 122 P. B., 1889.
(•) r. L. B., IV Onlc., 897. (•) /. L. i?., VlII Bom., 194.
( ») /. L. ft., Xri AIL, 256. (•) I. L R.. VlII Bom., 405.
(*) r. L. ft., VIIJ Calc, 788. po) /. i r^^ xjIH AU., 50J.
(») I, L. ft., XX Bom., 511 (*») 102 P. B., 1905.
(•) /. L. ft., XI jr Cede, 1043. (»•)/. L. ft., IXH Bom,, 607.
(' ») I. L. B., XVU Mad., 298.
Diom. 1907. } OIYIL JUDQMANT8— Na 182. ^^
First ajppeal from the decree of H, Earcourty Esquire^ District
Judge, Delhi, dated 2bth November 1905.
Peetonji Dadabhai, for appellant.
Shadi Lai, for respondent.
The JDdgment of the Court was delivered bj
Chattebji, J. — The material parts are briefly these PlaintifTs 30<ik Vordk 190T.
fatier, Hazari Mai, and defendant's father, Kanhja Lai, wer«
brothers and partners in basiness at Delhi. In 1892 after
plaintiff's father'H death, a separation took place throagh an
arbitrator, one Lala Eanhja Lai. The award of the arbitrator,
which is printed at page I of the supplementary printed record,
recites that Rs. 62,000 in cash were dae by defendant's father as
the share of Hazari Mai, Rs. 3,000 on acconnt of furniture and
half of a tavela and Rs. 7,400 on acconnt of jewels of plaintiff's
wife. Two houses valued at Rs. 10,000 were alf^o to be given on
account of that share. Plaintiff's share was^ to be made np thus :
(a) The title deeds of the houses were to be made over
to plaintiff's wife Mussammat Piari, who was to
hold possession and enjoy the rents without power
of alienation, the properties to revert to plaintiff
Gulzari Mai in c^e she died without male issue.
(6) The ornaments to be' held by Mussammat Piari with-
out power of alienation except to her daughters, '
sons-in-law and danghtern-in-law.
(c) R«. 30,000 oat of the Rs. 65,000 mentioned above
(62,000+3,000) to remain deposited in Mussammat
Piari's name as owner without power of alienation,
except with reference to the interoHt which was to
be payable to her at 6 per cent, per annum, after
the lapse of one year from the date of the award,
no interest being payable for that year. After
her de'ith plaintiff's* issue to be entitled to this
money.
(d) The remaining snm of Ra. 35,000 was to remain
*9ith Kanhya Lai without interest for one year and
thereafter on interest at 8 annas per cent, per
mensem to the credit of the plnintiff. Rupees
5,000 could be drawn out of it by the plaintiff for
purposes of business and other sums hereafter
for the same object with the approval of Kanhya
Lai and the arbitrator, the restriction to xemain in
force for 10 years, after which he was to have fnll
powers of diepoBal. Kanbya Lai was giren the
^28 ^^^^^ JUDQMKNTB-Na 182. [
eadre joiat basiaoas aad the assets thereof sabjeot
to the "abo^e paymeata oa aoojunt of plaiotififs
share. A deoree was passed bj the Oistricti Jadge
of Delhi ia terms of the award by coasent of
parties on 18th August 1892.
PlaiatiS's wife died without male issue maaj years ago, it is
not clear from the reoord qow many, but it is undisputed,
more than six years before suit. Prom a copy of an exfcrtot
from the register of deaths filed in this Oourt by Mr. Shadi
Lai aod aooepted by Mr. Dadabhoy, it appears that she died
on 2nd April 189d. In 1904 plaintiff tried to realize the amount
he considered due from defendant in execution of the decree of
1892, but it was finally ruled by the Ohief Court on 10th April
1905 that he was bound to file a fresh suit. On 20th AprU 1905,
plaintiff brought the present suit. He alleged that after the award
the parties had dealings and that on 7th June 1902 the acooant
was adjusted between them, and defendant struck a balance for
Bs. 53,526-5-9 including the item of Bs. 30,000 deposited in
Mussammat Piari's name in his own book in plaintiffs favoar.
The defendant disclaimed all knowledge of the original
jointness between the parties' ancestors and of the award, bat
admitted that two sums of Rs. 85,000 and 30,000 were credited
to plaintiff and Mussammat Piari respectively in his books, that
the plaintiff had dealings, but that not one farthing had been
paid on Mussammat Piari's account, that the amount stated
referred to in the plaint had been entered in his books daring
his absence by collusion between plaiutitf and defendant's
mufiim, and that nothing was due to plaintiff but aboat lis.
13,500 owed by him to defendant. He also pleaded that
plaintiff has no right to claim the Es* 30,0u0 entered in
Mussammat Piari's name and that the claim for this sum was
barred by time, Aiussammat Piari having died nine years bo(or9
suit. Other technical objections to the claim need not be set oat
herti as they are not pressed before us.
The issues framed by the District Judge were—
1. Whether the entry .in defendant's book, dated 7tb
June 1902, amounts to an acknowledgment within
the meaning of Section 19 of the Limitation Act
2. Is it in any case a statement of account that wiii pf^
a fresh period of limitation.
3. If it is, may not defendant go behind it.
The District Judge found that the entry was not sigo*^
- eTtn by defendant's agent»and that defendant did sot sg^ ^
it. fie hela that the suit as baaed on the balance ws0 sot
J>»CE. 1907. ] 0I7IL JUDQMBNTS-No. 182. ^20
tenable and aooordingly diamisaed it without costs. He inoident-
ally )xpra«9d fcb3 opiaioa tln,fc plaiatiff had not been given the
Bs. 30,000 by the avvard and thesam was kept perfectly distinct
from the Rg. 35,000 given to plaintiff himself, and that his claim
to the former sum was not clear in equity, but inconsistently
allowed this equity to sway him in not awarding costs.
The case was argued at great length by counsel for the
parries and the plaintiff's contentions before us were substantially
these—
(1) That under the award the sum of Bs. 80,000 was
plaintiff's money, Mnssammat Piari having
been given only a life interest in it, and that in
any case the plaintiff is entitled to recover it from
defendant on Musaammat Piari's death without
male issue.
(2) That the sum was held by defendant and his father
as a trustee, and that no limitation applies to the
present suit in so far as that sum is concerned.
(3) That the account was stated in defendant's book
by defendant's agent with authority and was never
repudiated by the defendant within the subsequent
period during which the parties had dealinga and
must necessarily have come to his knowledge and
that defendant's condact amounted to ratification if
authority was not expressly or impliedly given
before.
(4) That the claim is within time —
(a) as the amount stated gives a fresh starting point ;
(6) as it amounts to a fresh promise within the meaning
of Section 25 (3) of the Indian Contract Act.
It was admitted that if Section 10 of the Limitation Act
di^ not apply, the limitation goverring the suit was that provided
in Article 120 of the Act.
It was also suggested that the account may be treated as a
mutual open and current account and the limitation prescribed
in Article 85 applied to it.
These contentions were strenuously opposed by the other side.
The points for determination in this appeal group themselves
under two main heads —
I. Whether the plaintiff has any right to the Rs. 30,000
credited in defendant's books in ' the name of
Mnssammat Piari, his wife, and set apart for her
by the award.
IL If so, whether the claim is within limitation*
ggQ omh JUDuMSNTf-No. 118. [
Iq order to aatisEaAtorily dedde the limitation point, the
faota shoald be irst dUposed of, and we therefore proceed to
consider the first question.
In onr opinion there cannot be any rational doabt
that the sum of Rs. 30,000 was plaintilTs money, thongb ths
arbitrator set it apart for the maintenance of Mnssammat Piari
daring her life-time. The money was provided out of his share
in the joint shop and from the Rs. 65,000 cash which were dne
to him on accoant of that shnre. This is expressly stated in the
award, and it was clearly mentioned that the cash, omameDtB
and immoyable property of that share were to be paid to. aod
for (uske toaste) Galzari Mai in a certain way, which has
already been described in an earlier part of this judgment
There cannot be the least doubt that the property was the
pUiLtifl'fi, a^d the ailitiutor nituly made an airaagcmcnt for
the well being and comfort of plaintiff's wife, to which plaintiff
assented and that the arbitrator never intended that the
property should not revert to plaintiff on the death of his wife
without male issne. The case may be looked at in two ways*
Mnssammat Piari was only to liave life interest in the propeHyi
the reversion being with the plaintiff, and this is the right way
of regarding it. Or assuming, for argument's sake, that
Mnssammat Piari had been constituted full owner, so that
inheritance is to be traced to her, it is obvious that by Hinda
Law plaintiff is her heir. The arbitrator did not declare that on
her death without male issue defendant was to be entitled to
the money. The point is so simple and so obvious that we are
unable to understand the difficulty the District Judge felt
about it. The first question must be decided in plaintiff's
favour.
On the question of limitation the first point for consideration
is wbfther St ction 10 of the Umitation Act is applicable to the
daim. There was much argument on this point, bnt after due
consideration we are obliged to held that Section 10 has no
apphcation. It is possibly a fair ai^nment that defendant's
father was under the award constituted the trustee fot Moesam-
mat Piari to keep charge of the money^ to pay the interest to her
during life, and to hand it over on her death to any male issae
she might leave. The plaintiff may be said to be the anthor of
the trust, as he acquiesced in and accepted the award of the
aibitrator in this matter. But when Mnssammat Piari died
the trust came to an end and Section 10 ceased to be applicable.
It might have applied to a claim to enforce the trnst by
Musaammat Piari against defendant's father and defendant) W
Diem. 1907. } CIVIL lUDOlf SNTfi— 17o, IS!!. ^flf
on ber death the money reyerted to the plaintiff, the position 6f
the latter was changed and they conld not be treated as tmstees
under an express trnst for a specific pnipose.
This is not only apparent from the words of Section 10, which
should be oon^^traed with reasonable Rtrictness, bnt is conclnded
by authority. In Kherodemoney Oossee v. Doorgamoney Dossee (i)
it was held that Section 10 applies to express trust alone and
exdndes implied trusts, and those resulting from operation of
law, and that it does not apply to a suit to recover trust-money
in the hands of the trustee, on failure of the objects of the trust
for the plaintiff's own use and not for the purpose of the trust.
Gartb, O. J., regretted the narrow scope of the section, and wished
that it was more comprehensive, but nevertheless felt bound to
construe the section as it stood. This was followed in Oreender
Ohunder Qhose v. Mackintosh (•). The same view was taken
in /a«o^ Bibiy, Parmarund (•). Sec 2A>iO Hemangitvi Dasi v.
Nohin Ohand Ohose (♦). In Oowasji v. Bustomji (•), it was
ruled that the section does not apply even to suits to declare
trnst created for a specific purpose void and to enforce resulting^ '
trusts, the limitation for the latter being that provided by Article
120 of the Limitation Act. Assuming that there was an express
ti ast in this case in favour of Mussammat Piari and for a specific
purpose, viz., providing her with maintenance from the income for
Ufe, and this trust ceased on her death, though the defendant
and his father themselves held what had been trust-money for
plaintifiTd benefit. This was a resulting trust according to tlie
langnage of the text-books. In the Indian Trusts Act II of
1882, Chapter IX, a case like the present would be covered by
Section 83, but Chapter IV deals with obligations in the nature of
trusts. They are classed differently from actual and specific
trusts, which would come under Section 10 of the Limitation Act.
Thuli it is clear that this contention of the plaintiff-appellant is
untenable.
As regards the remaining contentions under the head of
limitation, it is clear that they hinge on the alleged balance
brought out or struck in defendant's books. It is worded as
follows :
Dashhat Ouhari Mai rupia 53,526-5-9 hisab $amajk$ baqi
niJcal U.
It is not signed by the defendant or his munim but by the
plaintiff. After the balance the dealings went on and the
C») X. L. R., ir CaU^ 455. (») I. L. B., XYI itt., 256.
{•) /. L. a., IV Oale., S97. (•) I. L. A, VIII Omh^ 788.
{•)LL.B^XXB<m.,nh
0g|2 ^^'^^^ JUDGMBNTB-Na 182. [ &M0i»
amoant was carried in the books of defendant down to
Bhadon Sadi 1960 when a debit of Rs. 2,500 is entered
agaiusfc the plaintifF. After this there is a debit of Rs. 48,216-7-9
against plaintiff, which had been credited to him on accoant of
Mussammat Piari's item of Bs. 30,000 and interest when the
disputed balance was straok with the remark that, as the
District Judge had decided thac plaintiff coald not recover this
sum in execation of decree, the former credit was wiped oat bj
this debit.
Defendant deoied that the balance was struck and the
oredit of Mussammat Piari'n item brought into the pl&intilPa
accoant with his knowledge or conseit or with authority, and
alleged that it was the result of collusion bet«feen his munim and
plaintiff. This plea must be disposed of before we can acoept
the balance in evidence, and give effect to the credit of
Ba. 48,216-7-9 aforesaid and discuss the legal arguments foanded
on them.
After a consideration of the evidence and probabilities,
we are of opinion that this detouoe is not established.
The plaintiff and Ran jit Singh, late munim of the defendant,
svyear that the credit was entered in defendant's books and the
accoant settled in his presence and with his consent. The
defendant has, we think, suoceodfuUy shown from his books and
by other evidence that on the day the balance was struck he was
away from Delhi. But this does not necessarily show that the
balance was fabricated by Biiujit Singh and the plaintiff. The
statement was made some years after the date of the balance,
and the inaccuracy may well have been due to forgetfalnesfl.
Bat even if defendant's presence has been falsely stated, it does
not follow that the balance is also false, for it is not nnasoal to
find true oases supported by false evidence. Ranjit Singh says
defendant told him to make up accounts of the interest on the
Bs. 30,000 and to settle the amount, and this may be perfectly
true without defendant being actually present when the accounts
were finally made up and the balance brought out. It appears
clear that dealings went on for nearly fifteen months after the
balance which were duly entered in the same accoant and
Ranjit Singh continued to be employed as munim. He was in
fact dismissed, Mr. Shadi Lai told us, shortly before the present
suit was instituted. It is ditficult to believe that he would be
employed and the dealings go on if so great a fraud had been
perpetrated by him. It is stili more difficult to belieye the
explanation given by counsel that defendant never looka after
hisbosinMS and never saw the aooount books witiiiu^the period
i>«<«. i»07. J mviL JtroGMBNTS— ko. m. gg^
aader disenesicm. If be acts like this whieh oannoi howeyer be
believed, there would be gronnd for thinking that the HMtitm
doing the bnsiness of the »hop has anthoritj to make tueh
Beitlementi. Bot in faet it was for defendant to haye gone
into the witness-box and sworu to the fraud and to the
explanation now offered through , oonnsel. Bnt he has not dared
to do this, and we oannot believe that it was the fanlt of bis
lawyera that he w.is not oalled to dispose to these matters* The
words of the final re-debit against plaintiff also negatire the
allegation of frand and oollnsion. Had defendant not been
aware of the biilaDoe and the account had been oollusiyely settled
behind his back, he would haye dearly made mention of it
when the debit was made. On the contrary, the words used
suggest the inference that defendant had considered himself
liable to pay the money and had entered the credit on that
understanding, and made the debit entry when he was agreeably
surprised to find that the District Judge held he was not
liable.
it is indeed not intelligible how defendant could hare
denied that the money belonged to plaintiff on Mussamroat
Piari's death, and we think that he understood himself to be
liable for it, plaintiff was supine about drawiug it out, thinking
that the account was a single one and it suited defendant to let it
remain with him. As an honest banker defcLdant knew he was
liable for interest, which had been expressly fixed at 6 annas
per cent, per annum by the Arbitrator, thoagh drawn only once
by Mussammat Piari, and it is not' strange that in 1959 Sambat
he should have ordered the interest to be calculated and the
plaintiffs account to be consolidated. The dealings then went
on as before, and it is only when defendant's business got bad
and it became inconyenient and difficult to pay such a large sum,
that recourse was had to legal objections tostafeoff payment
and plaintiff was driyen to Court.
We therefore find that there was no fraud or collusion, and
that the account was made up and the balance settled with
defendant's knowledge and consent. At any rate he must be
presumed to haye latified the act of his munim. This defence
therefore fails.
The question then arises what is the effect of the so-called
balance on the limitation applicable to the claim.
(a) As an acknowledgment or account stated.
(6) As a promise under Section 25 (8) of the Contract Act
(o) As an entry in a mutual open and ounent account*
614 OlVtL JUDOilBKTS-No, 18^. t Iraab
It isobTiOQa that as an ackDowledgment under Beotion 19 or
aooooni stated ander Article 64 of tbe Limitation Act, tbe balance
in qoestion ie Taloeless. It is not signed hj tbe defendant or his
mumttit and it contains no words acknowledging liability or
stating acoonnt on bis bebalf. Tbe words simply mean that
plaintiff bad uDderstood tbe acoonnt acd bad brongbt ont the
balance as correct. Banjit Bingh rays plaintiff signed the
balance in token of acceptance. Sncb a balance does not save
limitation, which as already stated is six years from tbe date of
Hnssammat Piari*s death, when the plaintiff*8 right to recoTcr
the money ceedited in Hnssammat Piari*s name acomed to him.
The whole dispute centres round the item of Be. 4i8,2 16-7-9 for
without it the balance would ba^e been a little oyer fife
thousand, and tbe subsequent dealings set forth in tbe plaint
would baye made plaintiff a debtor to tbe extent of many
thousands instead of a creditor for the amount claimed. It is
quite clear also that the credit was made and the balanos
brought out after the lapse of six yean from Mussammat
Piari's death, so thai the so-called acknowledgment was not
made nor the account stated within limitation. Thus tbe
balance is quite infniotuous in this respect. Saduseok AgafwaBa
y. Buikantu Ncdh (i) and Bam Dittay. IbraJum-iuMin (') bate
DO application as their facts were different.
The argument under bead (5) is equally untenable.
Tbe fatal objection of want of defendant'a signature personally
or by dnly autbcriBed agent is applicable under this head also.
Moreoyer, there is no promise to pay, which is an essential part
of a contract falling under Section 25 (3) of the Contract ict.
Tbe contract must be an express one according to tbe aotboritieSi
f . e., not to be deduced by implication from a mere
^ acknowledgment. See O^ou^^'y. Ohokwn (^) and Banchhoddat
y. Jeychand (♦). See also Cfangaprasad y. Ramdayal (•) bM
the authorities cited therein. The langnage of the balance
discussed in Mahhub Jan y. Nur-ud din (*) was different, and
was bold to contain a promise to pay. Sadasook Agarwalla> case
dted aboye and Bam DiUay* Ibrahimud din (') areeqoallj ooi
in point. This contention, therefore, must also be decided sgainst
plaintiff-appellant.
Tbe same difficulty appears in plaintiff's way with
reference to bis contention under the third bead. The
(«) I. L. B., XXIi Oale., 1048. (*) I. L. «.. VUt Bom., 406.
(•) IMP. B^ 1889. (•) /. I. a., XXOJ AU., M.
I*) I, L. K.. VUl Bom., 194. (•) 102 F/B., l90S.
Dmb. 1907. ] CIYIL JUDGMSNTS^Na M9. ^35
defendant's books kept tbe item of Rs. S0»000 sepamte until tbe
credit of Rs. 48,216-7-9 took place, and the dealings were started
with the credit of Rf. 85,000. The snbseqnent transaction
partake of tbe nature of mntnal open and current accounts, as
these were reciprool demands from time to time and transac-
tioDB on each side, ci eating independent objections as laid down
in Oanesh v. Oyanu (^) and Vein Pillai v. Qho$e Mahomed (*),
parties sold pearls, gems and jewels and passed hundis to each
other and this character of tbe accounts continued to the end.
In a balance struck in diefendant's book on Asar Sndi 1st,
Sambat 1954, plaintiff was debtor to the defendant to tbe extent
of Ra. 6,5^9-6-6, and so be woald be to the extent of seyeral
thousands in tbe acconi.t for tie period subseqcent to the las^
balance of Rs. 53,526-5-9, if the item of Ra 48,216-7-9 i^aa
atruok out. Assuming, tbeiefore, that the account would fail
under Article 85, the dispute would neyertheless rage round the
credit of the last mentioned item which was brought in
from another account, vis., that relating to Rs. 30,000 in the name
of Mussammai Piai-i. Ihe question still would be was the item
rightly credited and can defendant be held liable on it now that
he denies bis lisbilitj- If tbe item was brought into the
account after it had become barred by time, the defendant can
only be made liable if the cie dit can be held to be a promise in
writing duly signed within the meaning pf Section 25 (8) of
the Contract Act. We have already seen that it was not, and
there is no doubt that tbe iti m was already beyond time when
the credit entry wap made. Tbe defendant can repudiate his
liability in Fpite of his original asFcnt to the credit, unless his
assent has been given in a form that gets over the limitation
law, and tbe mere transfer of a barred item from another
account into a mutual open current acoount, eveu with
defendant's consent, places plaintiff in no better position than
he would have been in bad he sued for the item individually on
tbe strength of the credit entry Tbe argument perhaps serves
to obscure the real isf ue at first sight, but is of no avail to get
over the plea of limitation.
We are obliged therefore to hold that the claim is barred
by time. The appeal must accordingly fail, but in view of the
facts of tbe case and tbe hardship inflicted on plaintiff by
defendant's aotion in first agreeirg to pay and then refusing to
do so, he should not be made to pay defendant-respondent's costs.
The appeal is therefore dismissed but without costs.
Ajffpeal dimnuied.
' C») I. L. B., XIU Bom,, W. (•) I. L. «., ZFII Mad., tdZ.
j68$ onriL juDoifSKn-No. iss. t bmc»
Fnll Bench.
No. 133.
Before Bir William Clark, Kt, Chief Judge, Mr. Justiee
Robertson, and Mr. Juitiee Shah Din.
PAQIB ALI SHAH.-(DiFiNDANT),— APPELLANT,
AnwoJOB SiDB, { Versus
AAM KISHEN AMD OTHEUS,~(PuiNTifr8),~BE8PONr)BSTS.
Ciyil Appeal No. 548 of 1906.
Fn-^mpHon — flfon't right to claim pre-emption on death of hiefMieren a
ewuee of action a/^jmed to the laJHer in hie life4ime.
Held, by the Foil Bench that a right to sue for pre-emption npcn a cause
of action which accrued to a person in his Mle-tima passes at his death tokis
successor who inherits the property through which the right had accrued.
Further apjpettl from the decree of W. A. Harris^ Bsqwrs,
Divisional Judge^ i!uUan Division, dated 1 \th April 1906.
Grey and Roshao Lai, for appellant.
Oertel end HarriP, for respondents.
This was a reference to a Fnll Bench made by Robertaon
and Shah Din, J J., to deteimine whether a right to sue for
pre-emption apon a canse of action which bad accmed to a pemm
in bis life-time paaees at bia death to hie suooeBsers on their in-
heritiBg his land.
The order of the Division Bench referring the question of
law to a Fnll Bench was as follows : —
SflAH Dim, J.*-- The facts of the case, so far as they are
material for purposes of this reference, are a^ follows;—
On 29tb March 1899, Miran Bakbsfa, defendant No. 3,
purchased the well in suit known as the Shabwala well, which
was the property of defendants Nos. 1 and 2, at an anotiou sale
held in execution of a decxee against the owners thereof, for
Ba. 8,000. On 4th May 1899, Miran Bakbsb sold the well toSayad
Paqir Ali Shah, defendant No. 4r, for fU. 8,000. On 29th
NoTcmber 1899, Faqir Ali Shah sold one-third share of the well
to Bama and Sahara, defendants Nos. 5 and 6. The pUioiifff
brought the suit for pre-emption^ out of which the present appeJ
has arisen, on 9th February 1900 against the original ownen
and Miran Bakb^ and Sayad Faqir Ali Sbab, alleging that tb^
being landowners in the Tillage in whiohthe well in dispone li
situate bad a preferential right of pre-emption in respect of ^
aa apanst the auction-purchaser and the second ▼eoclee, wbo
owned no land in the said village. On 26tb Febmaiy 1900, tbf
ff>ces. 190f. ] OIYIL JUDGIIBMTB^llo^ 111 6S7
plaintiff applied for B«iinan and Sahara, enb-Tendeaa from
defendant No. 4, to be impleaded as co-defendants, aad they were
impleaded accordingly.
It appears that at the time of the original anctiou sale, aa
also at the time when the leeale to Sayad Faqir Ali Shah took
place, the present pluintiffs-respondents were not land-holders
in the Tillage. It was their father Irapat who was a proprietor
in the village at the time, and he haying died eoine iiiBe in
Jannary 1900, the plaintiffs pocceeded as his heirs to the land
owned him and brought the present snit in Febr«ary 1900
to enf ce the tight of pre-emption which admittedly had
aoorned to their father in his life-time.
Yarions pleas wttv raised in defenee to the plaintiffs* claim
in the Goort of first intitauce, but it is nnneoeasaiy to notice them
at this stage of the ca^e. It may, however, be noted, that the
case earoe np to this Conrt once before in 1905 for decision of
the question whether there had been a waiyer of the right of
pre-emption on the part, of the plaintiffs' father Irapat in respect
of the sales in qnestion, and was remanded for decirion on the
merits after a finding on the point of waiver in plaintiffs*
favonr.
The Conrts below have now decided that Faqir Ali Shah
was not a land-holder in the village at the time of the sale to
him in May 1899, and have accordingly decreed the plaintiffa*
claim conditional on payment of Re. 8,000. Two appeals have
been preferred to this Conrf, -one by Faqir Ali Shah and the
other by Raman Mai and Sahara ; the po:nt« raised in both the
appeals being snbatantially identical, namelj (1) that the
plaintiffs had no locus $tandtio pne for pre-emption in respect
of the sales in dispute as heirs of Irapat, their father, inasmnoh
as the alleged right of pre-emption was personal to Irapat and
not having been exercised by him dating his life*time died with
him and did not survive to the plaintiffs ; (2) that the snit was
bad for migjoinder of parties and of causes of action ; and (8) that
Faqir Ali Fhah was a landowner in the village in which
the well in suit is situate at the time of the sale to him, and that
therefore the plaintiffs' right of pre-emption, if any, was not
superior to his.
As regards the last two points, we are clearly of opinion
that they are devoid of force. The objection as to misjoiBder
was not raised in the pleas and was not seriously pressed
before us, and tightlj, hs we think that obviously the suit was
not bad for misjoinder <rf parties and of canees of action. As
088 ctttis jtTDoirairro^Na laa
to the oontebtioB that Fiqir Ali Shah was a iiroprietor In the
Tillage at the time of the sale to him in May 1899, we need
only say that after referring to the eTidence upon the record,
on which reliance was plsoed in argument on his behalf, we
have no hesitation in Agreeing ^^with the oonooirent finding of
the Coorts below on this point, and we oTor-rale the contention
as untenable.
There, thoB, remains the first point in regard to the plaintiffs*
r^ght to sne for pre-emption npon a cause of action which
had aoemed to their fsth^^r in his life-time, and which, it was
urged, did not snrrive to the plaintiffs as heirs to their father's
land in the yillsge in qoestion. This point was pressed upon
our attention by Mr. Orey with great force and eamestness in
the course of a learned argument, and he cited the following
authorities, which, though not precisely in point, he claimed as
fortifying his position :•—
Dhani Naih v. Budhu 0), Bufein Dtn v. Ham Din (•),
Muhamtnad Ayuh Khan v. Sure Khan ('), Lnshhari Mai t.
Ishar Singh (^), Dilganjan Singh v. Kalka Singh ( ), Bam Ohand
T. Durga Proiad (•), \fangal v. Sahib Bam (*).
For the plaintiffs respondents Mr. Harris relied on Fateh
Khan T. Muhammad (•).
We may note in passing that althouirh the question of the
plaintiffs' right to sue under the circumstances explained above
was not raised by the defendants in their pleas in the Court
of first instance nor in their grounds of appeal to the Lower
Appellate Court, yet as it wns specifically rsised in the
memorandum of sppeal filed in this Court, and is a purely
legal question (and not one of fact) depending for its decision
on facts which are undisputed and apparent on the hce of the
record, we sllowed the appellant's lesmed counsel to argue it.
The respondents' counsel was in no way taken by surprise
having had suflScient opportunity of meeting the case on the
groond thus rHised*
As the point ur^pd by the flppellaot is one of iome aioety
and not free from difficaUy, and &» itiaapt to arise b cases
governed by tho Punjab Pre-emption Act (11 of 1905), and ss
after bei^towing upon it our beat consideration we are unable to
formulate a definite opinion in repfHrd to it, we think it desirable
to refer it to a Pull Bench for dec is ion and we refer it accord -
tpgiy>
r) 136 P, R., 1S94, (•) 1, L, J?, JZtl Ail,, L
(•> 100 r. Ji,. imo. (*) /. t. B., iXfi ah, 6i.
(») 9fi P, J*., 1901, (*) /. L, R., XZVU Ali^ 544.
btcm. 1907. ] CIVIL JaOGMBNTS No. IM. ^
Upon the referoDoe to th« Full Bench the following jadg-
ments were delivered r—
CuLBK, C. J.— Where a light of pte-emption is eUimed ^Srd May 1907.
under Sectipn 12 of ihe Punjab Uwe Act in virtoe
of being f, land-holder the right is inherent in the land. No
qneetions are askod an to the natore of the land, an to whether
it is ancestral or acquired, or as to how it was obtained,' by
inheritanoe or purchase ; it is sufficient that the ohiiniant owns
the land.
It is clear, therefore, that ordinarily a transfer of land passes
the right of pre-emption, and the loss of the land involves the
loss of the light of pre-emption. So much so that a right of
preemption already acquired is lost if the land which gaye
rise to it is parted with— w^e Atma Bam t. Dew Dyai (i) and
Muhammad Ayuh Khan v. Bwre Khan (»).
The further question then arises whether such transfer
of land does not pass the right of preemption on with refeit^nce
to other knds already sold. Fnmd facie there seems no reason
why it should not.
It becomes conyenient here fo divide transfers into two
clauses: (a) transfers by inheritance, (6) transfers by some
Toluntary act of the owner.
Ab regards the former there are no precedents. As regards
the Utter there are some precedents, the more i&portant being
BheoJSwrain^. fftVa(*)and Muhammad Ayub Khan v. Bmre
Khan{^) which decide that in such cases the right of pi«.
emption does not pass.
The Allahabad case is a Full Bench case. Four of the
Judges simply state their answer to the question referred
without any discussion of subject Mahmud, J., discusses the
subject and referring to Muhammadao Law says :—
•* Under that law, when the ownership of the preea^ptiou
••tenement is transferred or deyolves by act of parties or by
«• operation ot law, the tiansfer or deyolution passes pre-emptbn
" to the person in whose favour the transfer or doTolution
" takes place ; but the rule Is essentiaUy subject to the proviso
" that such person cannot enforce pieemption in respect olany
"sale which took place before such transfer or devolution.
" This rule must also be applied to the present case. The reason
«« why, although the right of pre-emption runs with the land,
(i) 49 P. R, \m. (ij 86 P. B., 1901.
()40 OITil JUDGlUvtS— tra ISi. ^ftaooEb
** the plaintiff in thk oaM oao|^ot be allowed to en roe it,
** is tbat to rale otherwise woold in effeot be to allow a
** ' straDger' to onst one who is sot a ' stranger ' at the time of
" the sale. • • ♦ • • • ♦ • •
*' If the pnrohaser at the later sale (and this is the position
** of the plaintiff here) were to be allowed to pre-empt in
*' respeet of the proviocs sale, the oonseqaenoe would be tiiat
** whilst the pnrohaser in the earlier sale conld maintain a snit
*^ to enforce pre-emption in respect of the later sale, the
** pnrohaser at snoh later 'sale ooald maintain a pre-emption suit
** in respect of the earlier sala There woold thns he two snits
** eqnally maintainable bnt wholly inconsistent with each other,
** 'for each plaintiff wonld call the other a ' stranger ' and the
*' object of each snit wonld be to preclude the pUuntiff in the
** other Boit from the co-parcenary."
M ahmnd| J.*8 decision is based therefore mainly on the in-
conyeniences and injnstices arising otit of a vdnntary transfer,
and none of his arguments apply to a transfer by inheritance.
His view is even more apparent in Bajjo ▼. LaUnan (^),
where after saying that the very object and basis of tbe right of
pre-emption is to preTent the introdnotion of strangers as oo«
sharers in the property, he says : *' The right is essentially based
** upon the injury which such inoonTenience is supposed to cause.
** From its very origin and nature, the right of pre-emption is
** not one whidi is to be enforced merely as an instrument of
oapricions power or vindiotiyeness. it is a transient right in
«« its yery conception and nature, and being a persooal prrrilege
^of the pre-emptor cannot be made the subject of sale or
** bargain of any other kind. Any attempt on the part of the
*' pre«emptor to bargain with it, is taken to indicate conclu-
sively that the injury of which the pre-emptor complains in
** suing to enforce pre-emption is unreal, and that the claim is not
•* dictated by btrndfide motives."
In addition to these objections, there is a very reasonable
danger that once a desirable property has been sold, any
numt>er of persons hungering after that property might set
about to buy smsll plots, not with any desire to own those plots
but simply as a foundation for pre-emption suits. This would
be a gn^t hardship to the original vendee exposing him to a
number of suits, which he had no reason to anticipate at the time
of his purchase, and would be otherwise of Tory undesirable
state of affairs.
M
«4
DlfE. 1907. L CIVIL JUDGMENT -No 131
641
Whye, therefore, there is gojd reason why voluntary
transfers should not p^s a right of pre-emption as regardis
properties previously sold, those reasons do not apply to transfers
by inheritance. As regards transfers by inheritance the general
principle should apply that the right of pre-emptioD passes
with the land •
Mr, Orey laid great stress on Sections 13 and 16 of the
Punjab LiawB Act urging that the father was the person on
whom the notice had to be served, and that it was he who had
the right to sae, and that the right was thus a personal one
that could not be inherited by the son. The right was no doubt
a person il one in the father based on his land, but I can see no
reason why such right cannot be inherited by the son. If the
father had waived or otherwise disposed of his right this would
no doubt be binding on the son, as the father was representing
the whole estate.
Where, however, the father has done aotbing of the kind,
but has simply taken no steps in the matter, there seems to me
no reason why the son should not step iuto the shoes of his
father and take the same action as the father could have done.
The son inherits ^the other causes of action belonging to his
father and why not this one ? Nor do I see why the son cannot
oome in under Section 16, simply alleging that no notice as
required by Section 13 was served on his father.
I should, therefore, reply to the question referred that
plaintiSs' right to sue for pre-emption upon cause of action
which had accraed to their father in his life-time passed to them
at his death on their inheriting his land.
Robertson, J. — I concur in the conclusion opme to by 2Sth May 1907*
the learned Chief Judge. When an involuntary transfer takes
place by inheritance the succession to the land takes the whole
bundle of rights which go with the land, and thexe is no hiatus
in respect of the right of pre-emption.
Shah Oin, J.— I agree in the answer to the reference as 2Uk May 1907
proposed by the learned Chief Jodge.
6^ OlVIli JUDGMINTS-Ko. 184. [BsOotb
AmuiTi SiDi.
Full Bench.
No. 134.
Before Sir William Clark, Kt, Chief Judge, Mr. Justice
Chatterji, CLE., and Mr. Justice Johnstone.
HAMIBA AND OTHBRS,~(I)BF*rfDiOTS),— APPBLLANTS,
Venus
RAM SINGH AND OTHERS.— (PLAiNxirfs),- RES-
PON DENTS.
Civil Appeal No. 1209 of 1906.
Ou$fom^InhenUnce—8i9ter*B right to tuceeed <u a daugJUer cf the
Held by the Full Bench that among parties following customary law the
position of a sister of a male proprietor without issue cannot be assimilated
for purposes of inheritance to that of a daughter, and she must, therefore, in
such matters be regarded as a sister of that proprietor and not as a dau^ter
of his father.
Fufther appeal from the decree of Major O. 0. Beadon, incisional
Judge, Hoshiarpur Division, dated Slst March 1906.
Gobiod Das, for appeliaots.
Sohan Lai and Sheo Naraio, for respondents.
This was a reference to a Fall Bench made by Chatter ji and
Johnstone, J J., to determine that when a proprietor following the
Gnstomary Law of the Panjab dies leaving no sons bat a sister,
sboald, for purposes of inheritance, the sister be i*egarded as a
sister of that proprietor or that a daughter of his father.
The order of the Division Bench (Ghatterji and Johastoiie,
JJ.) referring the qaestion of law to a Fall Bench was as
follows : —
6ih May 1907. Johhstonb, J.— -In this case the pedigree of the parties is
as folbws :^
BISHNA.
\
r i \ ^
MahtabSmgh, KesraSmgh, Bahadur Singh, Saudagar,
plaintiff plaintiffs 2 and 8. plaintiff 4, — Nandu mairad
1. defendant 6. Mussammat
Chira^.
r
Nihalu— Mussamm&t Mussammat Khievi, Hamira,
Prabbi, o. s. p., remarried, defendant 2. defendant 1.
Defendants 8 and 4.
Saadagar having died, leaving a widow, a daughter and a
Boni the last named saoceeded, after hia death without issne and on
DiCB. 1907. ] OIVIL JUDGMBNTS-No. 184. 543
the reiDarriage of his widow, his widow Chiragho sacoeeded.
PlaiDtifEs claim the property left by Mnssammat Chiragho as
being the proper heirs of Nihala, last male holder. The property
ooDsists of land, house and moveables.
The first Court found that defendant 2 and her sons were
better heirs thanj plaintifFs ; that the property is not proyed
ancestral ; that the widow, plaintiff Eirpo, is not entitled to sne ;
that no moyeable property of Mnssammat Chiragho came to
defendants 1 to 4. . The soit haying been dismissed on these
findings, plaintiffs appealed to the learned Diyisional Jndge,
who agreed as to Hopsammat Eirpo, agreed that the property in
snit is not ancestral qua plaintiffs bnt was acqoired by Sandagar,
fonnd that the parties follow agricoUnral custom, and finally
held that even as regards acquired immoyeable property plaintiffs
as collaterals excluded the sister of Kibalu and her husband and
sons, the yiew being taken that plaintiff 2 is to be treated as the
sister of the last male holder Nihalu and not as the daughter
of the penultimate male holder Sandagar. The daim for houses
and land was decreed.
This reyision petition has been admitted under Section 70 (1)
(6) of the Courts Act, the grounds of appeal in effect being that
succession did not pass to Mussammat Chiragho as mother of
Kihaln but as widow of Sandagar, and that the property should
be considered as the property of Sandagar and should go to his
daughter defendant 2 rather than to plaintiffs.
In Ciyil Appeal 59? of 1904 decided by my learned colleague
and myself on 17th July 1905 we pointed out the essential
difference between the case of a daughter and the case of a son
and declined to adopt the theory that when a man without
brothers dies sonless in a tribe in which daughters exclude
collaterals his sister also excludes collaterals as being the
daughter of the penultimate male holder, and in Ciyil Appeal
1087 of 1906 and Ciyil Appeal 1370 of 1906 we again decided the
same point in the same way.
On the other hand in KhudaTarY. Sultan (^) in which,
howeyer, the matter was not discussed directly, a sister contesting
with collaterals was taken to haye presumption on her side as
being daughter of the original owner ; and this was followed in
the Diyision Bench Judgment appended to Daya Bam y. Sohel
Singh (•). There, Charan Singh, son of Sewai Singh,
was the last male holder, and it was laid down that, in-
as much as the property was acquired by Sewai Singh^ ** on
(») 108 P. «.,11900. .(•) no P.B., 1906, 7, B.
^^ OITIL JUDGMENTS— No. 1S4. [ Ebco&d
** the death of Oharan Singh without issae, the inheritance is
" to be considered as the inheritance of Sewai Singh's daughter's
** son and not as the inheritance of Oharan Singh's sister's
" son, Khuda Yar v. SuUan (i) and other cases quoted by me
" before." In the Judgments recorded by the learned Judges
who sat on the Full Bench aforesaid, I find the learned Chief
Judge Qn connection with the point now directly before as)
merely remarked (page 396) — " Now by Customary Law
" a sister's son is frequently put in the same position as
** a daughter's son," and quoted a few rulings. Then Chatterji, J.,
doubted, page 406, whether a sister's son could be treated as
daughter's son of the penultimate holder, but left the matter to
the Full Bench. Reid, J., gave no opinion on this point, nor
did Robertson, J., while Kensington, J., contented himself with
remarking, page 413 : *' That a sister's sons are, generally.
^ speaking, looked on as more remote possible heirs than a
" daughter's sons, may be readily admitted, certainly whero
'' ancestral land is concerned. But cases arise, and the preterU
** seems to me one cf them^ where no rational distinction can bo
** drawn between the two classes, etc."
Perusal of the Full Bench judgments as a whole shows that
this question was cot refeired to the Full Bench, and %$ not one
of the points decided by it In these circumstances I conceiye
we have against us the Division Bench ruling appended to,
Daya Bam v. Sohel Singh (^)9 at page 414, and the didum of
Eensigton, J., which, however, only related to the case then in
hand and its peculiar facts. I am still strongly of opinion that
the point has been rightly decided in Civil Appeal 599 of 1904,
Civil Appeal 1087 and 1370 of 1906 quoted above, and it may
therefore be necessary to refer the case to a Full Bench. With
these remarks I send the case to my learned colleague.
€th Hay 1907. ChattbrJI, J.— I agree in referring the case to a Full Bench
holding the same views as my learned brother.
The judgment of the Full Bench was delivered by
26ih Juty 1907. Clark, C. J.— The question for decision by the Full Bench
is this : —
When a proprietor, following the Customary Law of the
Punjab, dies leaving no sons but a sister, should, for purposes
of inheritance, the sister be regarded as a sister of that proprietor
or as a daughter of his father' P
That is, should her rights of inheritance be those of a
daughter and not of a sister P
0) 109 P. ^1 1900. {*) no F.B^ 1906, F.B.
DBom. 1907. ] OIYIL JUDOMENTS— No. 184. g45
The qaestion has heen folly discasBed in Giyil Appeal No,
599 of 1904, and we may say at ODce that we agree with the
reasoning and conolnsion of that judgment that the sister's
rights are those of a sister and not of a daughter, and we direct
th%t that judgment he published as an appendix to this
judgment.
The two main authorities against our Tie^ are Khuda Tar
V. Sultan (1 d the final decision of the Divisional Bench in
Baya Bam y. Sohel Stngh ('). In neither of these judgments
was there any independent discuesion of the subject. In Daya
Bam y. Sohel Singh the controversy on which the Foil Bench
passed decision was whether the case should be goyerned by
custom or Hindu Law. The case was eventually decided by
custom and the principle of the parity of the sister and the
daughter was utilized in determining what the custom was.
On an independent consideration of the subject itself we are
unable to agree with the yiews adopted in those judgments.
Mu98ammat Jaidevi v. Harnam Singh (•), Oaman y. Musiammat
Aman (*), and Mussammat Bed v. Lehna Singh ('), were relied
upon as showing that widows succeeded not as mothers of their
deceased sons, but as widows of their sons' fathers, on the
principle that when a line dies out it is treated as if it neyer *
existed.
In these cases this principle was used to explain why women
should lose their life estates by remarriage, which they could
not have done if they had^ succeeded as mothers, but we are
asked now to extend this principle, and make it a governing
princi pie, which should of itself regulate the law of succession.
We do not think that a principle of this kind can be followed
up to all its logical conclusions. If it were, absurd results
would follow, a paternal aont and a grand-paternal aunt would
in this case be in the same position as daughters.
A principle that would lead to such absnrd conclosions
cannot be a sound principle to follow to its ultimate conclusion.
In no system of law that we are aware of are the claims of
daughters and sisters placed on the same footing, and we cannot
imagine that the agriculturists of this province by ,a subtle
train of reasoning would ever have put them on the same
footing.
(«) 103 P. B., 1900. (•) 117 P. R^ 1888.
( •) 110 P. B., 1906, p. fl. (4> 171 P. B., 1888.
(•) 46 P. B., 1891, P. B.
;046 CrVlL JUDGMENTS— No. 184. [ BiOOBD
It 18 1 then argaed ' that in the special facts of this oase, tho
property oot bein^ anoestral, and Massammat Ghiragho haTing
inherited as the widow of Saadagar, the olaime of MoBsammat
Khien and her sons shoald prevail.
We are nnable to see that any case is made ont ior departing
from the ordinary order of sncoeRsion of sisters. No instances
haTe ocoorred on which a cnttom coold be founded.
Oar decision is that defendants can only daim to sncoeed
on the strength of Massammat Khie?i being the sister of Nihala
and not on the strength of her being the daughter of Sandagar,
and we dismiss the appeal with costs.
Afpeal diiwimed.
KoTi.— The case No. 699 of 1904 cited in the above jndgment it
puhMshed below—
Before Mr. Justice Chattetji, C.LB., and Mr. Justice
Johnstone.
SAIDAN BIBI AND ANOTHER,— (Pliiiitifi8),—APPEL.
LANTS,
Annitin fim. < Versus
FAZAL SHAH AND OTHERS,- (Dbmndakts),— RESPON-
DENTS.
Civil Appeal No. 599 of 1904.
Further appeal from the decree of Major Q. 0. Beadon, Divisional
Judge, Uoshiarpur Division^ dated 31st March 1906.
Gobind Das, for appellants.
Sheo Narain and Sohan Lai, for respondents.
The judgment of the Conrt was delivered by
17a July 1907. JOHVSTONi, J.— In this case plaintiffs, who are sister and
sister's son of the last male holder, Haider Shah, claim his land
' and honse as against defendants who are collaterals of Haider
Shah in the seventh degree. Both the Ooarts below have held
that costom is in favoor of defendants, the harden of proof on
the point being on plaintiffs, and so they have dismissed the snit.
Two defendants, Nos. 2 and 6, owning (we must take it) ( and
-sT-shares, respectively, confessed jndgment; but the Conrts
bdow have ignored this. This point has been raised in farther
appeal, and to dear the ground we may say at once that we see
no reason to refuse the plaintiffs a decree for these two shares.
J)ioB. 1907. j CtVIL JUDGMBNTS-No. 18i. ^0-
As regards the other shares the qaestioos we have to deoide ar^
in effeot these —
(a) On which party 13 the bardea of proof P
(6) If on plaiatiffd, have they proved any speoial oastom
in their favoar
(The issaes framed by the first Goart are rather oonfasiog;
the above shews the Hdos on which the case has been argoed
before as.)
As regards (a) I need only refer to Section 24, Battigan's
Digest, 6th Edition, page 30, to the Biwaj-i-am of Elevised
Settlement, Q. 27, of Rawalpindi (which is absolutely nnoom-
promising), and to the rulings in Faiz-ud^tn v. Muasammai
Wajib-un-niBsa (*), penultimate para., page 26% Ilahia v.
Qfiui'n (•), Mussammat Jindwaddi v. Hussan Shah ('), and Fatteh
Muhammad v. Daulai Khan (*). There is on the other side
the WaJib-id'O/n Ohakwar of the Regular Settlement, Section 5,
which is a Httle confused and contains some irrelevant matter,
but which seems to lay down tSat daufjjhters^ if married in
the family, take along with uncles and father's first cousins and
their descendants, but if married elsewhere, are excluded by
their near collaterals, while nothing is said directly about their
competition with more distant collaterals.
The inference doubtless is that they, if married in the
family, exclude more distant collaterals, and in the present
case plaintiff 2 is married in the family. Bat the value of
this document is considerably weakened by the circumstanoe
that it contains details, which can never have been followed
and which are wholly at yarianoe with Punjab agricoltnral
custom. Thus, it says that, where near collaterals exclude
daughters, those collaterals share by shariat, and also that
when daughters, as bainjf m i.riei in the fdimily, share with near
collaterals, again the shares will be by shariai. In my opinion
it can safely be stated that such a custom as this never prevailed
and hss never been given effect to. There is probably not a man
in the rillaflre who could make a division of property according
to strict Muharamadan Liw, or who understands its elaborate
rules. Thus, it would appear that the compilers of this
section of the Wajih'uUart must have been to some eximt
drawing upon their imagination.
Another reason for holding that this document affords no
rule and raises up no presumption in favour of the plaintiffs in
(M 71 P. B., 18W. (•) 41 P. B.. ISW.
(•) 34 P. R^ 1905. (*) 46 P. B., 1896.
^4d ^^^^ JUDGMBNTS-Ra ISi. [ Rbcoed
the present case is thi^t it ddals with daaghtera only. In this
ooQQOoiiDa the laara^d pbiii.* In* tli3 pliiaiifi arga)3
iageaioa)ly ea3agh that pUiatiS 1 olaims not so mach as sister
of Haider Sbah as in the cApacitj of daughter of Alaf Shah.
Alaf Shah died and was sacoaeded by hia son Haider Shah, who
died withoat issne or widow and was sacoeeded by his mother
Mnssammat Azim Kali. It is contended that upon the death
of this lady we shonld look at Alaf Shah, her deceased hosband,
and see who his heir is, and that thas the contest is between a
danghter, plaintiff 1, and tha defendants. It is also said that,
even if we have to find the heir of Kaider Shah, nndonbtedly
the last male holder, we shoold gc np the line to his father and
then om) down to plaintiff 2, hia daaghfcer. In support of this
argament we are referred to Ghidam Maktmnad v. M'iham^ii
Baihsh (^), at piga 17, panaltimabe pira., where the right of
representation is expUinad, t) the middle para., at page 62 in
Site Aim V. £a;(i fiant ('), and especially the words *'a mother
" snooeeds, not as a mother, but as the widow of the father " to
pages 256, 257 in Faizud^din v, M»M8imnat Wijub-an-nissa (^)i
last para, of page 256, where in a manner the case of sncoes-
' sion of a stster is assimilated to that of a daaghter by the
denoe of going back to the father from the brother and then
ooming down to the sister ; to Oaman y. MuMsammat Aman (^),
and espeoially the words *' the general principle is that
^ where a line dies oat, it is treated as if it never existed."
Now if it was the f nnction of this Goart, when it had cTolred a
theory, which explains certain phenomena of cnstom, to insist
upon applying that theory wherever it oonld logically bo
applied, regardless of faets, no donbt there would be much to be
said in faronr of the above argament ; but it is rather oar
fanotion, in matters of dispated costom, to discover what the
aotoal practice is and give effect to car disooveriea. There is
no binding force or sanctity in the theory itself ; it is merely
a convenient method of giving order to oar thonghts. In the
present instance, as we have already seen, daughters and sisters
have not commonly or in practice ever been treated as being on
a similar footing. The theory has never been pat forward to
support the daims, for instance of a paternal aunt against
dhtiaat collaterals, such a daim has in my experience never been
made. We have only to compare Section 23 of Battigan's Digest
with Section 24 to see how differently the respective claims of
daughters and sisters have been treated in the past; perusal
C) 4 P. B., 1891, J*. B. (•) 71 P. R., 189a.
(•) 13 P. B, i^9i, e. B. c) in -^ " ^'*""
Dboe- 1M)7. ] CIVIL JUDGMBMTS— Na— 184. 549
■ ■*•
of Ohief Ooart rulings, of which there are soores, dealing with
danghters and sipters brings oat the same tale ; in no Wafib-ul'
art or Riwaj'Uamy with which I am acquainted, are sisters
treated as the danghters of their brothers' fathers and not as
sisters ; and lastly even in Faitud^in v. Mussammai Waj%b»un*
niMa (^), quoted aboTe, we have only to look at the last two
lines of page 255 and the opening lines of the next page to see
how purely academic are the abstract remarks on pages 256 and
257 relied on by th| plaintifiCs' pleader.
My general conclusion, then is, that the burden of proof is
on plaintiffs to prove a special custom in their favour, oven
against collaterals of the seventh degree I should say even that,
initially, the burden of proof would be upon them when they are
contesting with ascertained collaterals, however distant. I also
hold that rales and practice relatii.g to daughters have no
bearing on the present case ; for reasons which we can conjecture
but which need not, for our purpose, be ascertained, daughters'
daims have been largely recognised and sisters' claims have not.
Turning, then, to the evidence in the case we find that
most of it relates to danghters and so is irrelevant. The essential
difference between the position of a daughter and that of a
sister has been pointed out in Tlam Din v. MuharaJc (*), last para.,
page 547. Virtually only three instances of succession of sisters
to be found— «ases 10, 12 and 16 in plaintiffs' list^and the
evidence regarding them is meagre and unsatisfactory. In one
of them it is said by a witness that there was a gift. In one
the event is said to have happened in Sikh times and the
evidence is purely oral. Even as regards daughters the right of
succession has apparently been so insecure that in nearly all the
ascertained instances there have been gifts. The rulings we have
been referred Uy—Mussammat Fattma v. Qhulam Muhammad (*),
and so forth— are all concerned with daughters.
The matter of fs judicata with referenoe to the litigation of
1876 has not been argued before as, and I do not think I need
touch it. I would, if my learned colleague agrees, dismiss the
appeal except as regards the shares of defendants 2 and 6, for
which plaintiffs should have a decree. I would make the
parties bear their own costs throughout as the case was one not
free from doubt.
Chattirji, J.— I agree in the foregoing judgment though with mji /«^ 1907t
some reluctance as the parties belong^to an endogamous tribe and
(') 71 P. B., \m. ^''2 (ly 140 P. «., 1801.
(•)171P.B.,18&.
660 <^VIL JUD0MBNT8--N0. 186. [
tbe'^respondeDtB are remote agnates of tbeBeventh degree. Bat
there can be no donbt tbat co stoma rj law does make a distinction
in f lactice beti^f en a sister and a daogbter i^bicb cannot bd got
over by any tbeory tbat snocession has to be traced to the last
male | owner wbo left isene, wbatever Taloe it may liaye to
explain or illostrate the general principles regalating sncoession
in tbat la w. Besides no system of law Is faultlessly logical and
anomalous, and even absnrd distinctions can be found in almost
all. Concrete facts must always prevail oyer abstract theories.
Robertson's Customary Law of the' Bawalpindt Dutriet^ answer
to question 27, is entirely against tbe plaintiffs, and enquiry in this
oaRe which was foil, failed to bring out any appreciable number
of precedents in favoor of the sister.
The appeal will be dinroissed except as regards the shares
of defendants 2 and 6 for which plaintiffs will h'lve a decree, but
the parties will pay their own costs throughout.
Appeal diifineeed.
ArrsLun Sidi
{
No 135.
Before Sir William Clark, Rt, Chief Judge.
AHMED BUKHSH AND OTHERS,— (PLAiirriFFs),—
APPELLANTS,
Versus
HUS AIN BIBI,— (Dependant),— RESPONDENT.
(Mvil Appeal No. 618 of 1907.
Muhammadan Lauf^Qift modi in contemplation of death — Death
illnese.
Eeld, that a gift made bj a sick person aged ei^ty, three days before
his death miist be regarded as made in contemplation of death within the
meaning of Muhammadan Law relating to death-bed dispositions and is
therefore inoperative as such.
Muetammai Balht Begum T. Taia Khan (^), Eafia Karim Bakheh T.
Begam Jan i*) and Mufeammat Salamti Jan v. Uuhamtnad 8kafi ( )
referred to.
Ohvlam Mustafa V. Ewrmat ;S dissented from.
Further appeal f^ntn the decree of Ctptain B. 0, BoCf Divisional
Jndge, Jdltniur Division, dated 27th October 1906.
Sukhdial, for appellantfl.
Oolak Nath, for respondent.
(») 104 P. I?., 18«1. (•) 61 P. R., 189a
ilMt. 190!r. ] crtlL JUDGMTBNTB-No. 1S5. gJl
The jndgment of the learned Chief Ja Igc was as follows :—
Clabk, 0. J.— The first quesfon for deciRioii is whether 14^ Jvm 1907.
MuRsammai Hnsain Bihi was the wife of All Bakhsh. It is
proved that she had heeu living with him as wife for ten or
twelve years. She was treated by him as wife, and lived in the
same hoase as his fii-st wife, and in the deed of gift he
acknowledged her as bis wife.
She had been previously married, hot there was no
allegation that the previoas hosband was alive at the time
she came to live with AH Bukbeh and there was no enquiry on
the point : it was asscmed that she was a free woman at the
time, and nothing was advanced against this view by the
plaintiff.
Gontinnal co-habitation as hnsband and wife raises a
presnmptioo of marriage— m'cld Wilson's Anglo Muhammadan
Law, para 30. I agree with the Divisional Jndge that Massam-
mat Hnsain Bibi is the lawful wife of AH Bukhsb.
The next qaestion is whether this gift of November IQth,
1902, was a death-bed gift.
It is proved that Ali Bakhsh died on 22nd November 1902,
he was actoally iU on the 19th November, and had been ill some
time before. He was some eighty years of age. The qoestion
of what constitutes a mortal illness is diooussed in Muasammat
BcMii Begum Y.Faja £^an (^) where under somewhat similar
circumstances it was held that the donor died of the illness
from which he was suffering when be executed the deed. The
question is farther diftcnssed in Hafiz Karim Bukhsh v. Begam
Jan (*) at page 259 and in Mussammai Salamti Jan v.
Muhammad Bhafi (*) at page 277.
The deed was registered at the house of the donor. The
donor did not attend at the registration office. It is not clear
whether the Divisional Judge knew this when be attached so
much weight to his appearing before the Sub-Registrar. I
have no hesitation in holding that this was a death-bed gift.
It was argued for defendant that even as a death-bed
gift, the gift was on account of dower, and of the nature of
htha-MriwaM and vaUd. Ohulam Mustafa v. JETtfrmo^ (*) was
reUed upon. Mr. Amir Ali in his book on Muhammadan Law has
given very good reason for dibtrnstiog that ruling, and it was
not as a matter of fact found that the gift in that case was a
death-bed gift. In my opinion this ^ft was entirely invaUd.
(») 104 P. B., 1881. (»> 61 P. R„ 1893.
(») 52 P. «., 1895. (•) /. ii. Rn W M., m.
05il OIYIL Jt7DQMllNTS— No. 18tf. [
■ — - - -
I maj add that there is no proof that anj dower was erer fixed
for Maaaaromat Haaain Bibi. No marriage oeremooy or
formality of any kind ia proved.
There remaina then the question to what aha re of tb«
property defendant ia entitled aa the wife of AH Bnkhah ;
further enquiry will be neceaaary on thiif point aa it is not clear
whether parties follow Muhammadan Law or coatom.
T aooept the appeal and aet aaide the order of the Divisional
Judge. I remand the case under Section 562, Giril Procedure
Code» for the Divisional Jndge to determine what property
defendant is entitled to as the wife of Ali^Bakhsh.
Appeal aXLowed.
No. 136.
Before Mr. Justice Johnstone <md Mr. Justice Lai Chand.
BHAGWAN DAS AND OTHERS,— (Plaintius),—
APPELLANTS,
AWlLUTStol. ^ y^^
SIDHD AND 0THEBS,—(UEFEHDAirr8),— RESPONDENTS.
Civil Appeal No. 603 of 1907.
Pre-emption-^ A greetMni creating right of occupancy'^BaU'^ Perpetual
lease - Punjab Pre-emption Act, 1905, Sectiom 3 (6), 4.
Held that an agreement by which a landowner created a right of
occupancy in another , person in consideration of money payment plus annual
rent and aenricea and whereby a right of reversion on the happening of a
certain event was ezpreaaly stipulated for ia not a aale within the
meaning of Sections 3 (6) and 4 of the Punjab Fte-emption Act, 1905, and
cannot therefore be the aubject of pre-emption*
DewanuUdla ▼. Katem Molla (Oi Baboo Ram Oolam Singh y. Nureing
Bahoy (•), Moorooly r. Ba^ B%ree Bam (•), and Nthal Chand r. Bai
Singh {*) cited.
Jehanav, Choiodri Jiwin Khan (•), Ohibi v. Hayat (•), and Ruhna
T. Kahn Singh (') distinguished.
Further appeal from the decree of Major 0. 0. BeadoHf Divisional
Judge^ Hoshiarpur Division^ dated Srd December 1906.
Shadi Laly for appellants.
Beni Pershad, for respondents.
(0 /. L. A. XV C<dc„ 184. (•) 48 F. A, 1802.
(•) 25 W, B., 43. (•) 198 P. B., 1882.
(•) 8 W. B., 106. (•) 120 P. B., 1888.
(^) 179 P. B., 1888.
i>xom. 1907. i OltiL JtDGMBKTS*-No. 1^. ({53
The judgment of the GoqH was delivered by
Lal Chand, J.— On Hth April 1905 defendant! 1 and 2, who 24dk Jtdy 1907.
are proprietors in Tillage Baaowal in tahsil Una of the Hoshiarpar
District, ezecnted and registeied an bgiec^ittent in faTonr of
defendant 3, who is found to be a n ember of an agricnltoral
tribe bnt resided, as alieged hy ibe plaictilF, in a different
Tillage. The principal stipulations embodied in this agieement
were as correctly frnnnjBiJFed by tie AJuutif that At ar Singh,
defendant 3, was mad^ an occupaucy tenant on payment of lis*
2,300 as ncurana and would enjoy and possess the same rights as
other occupancy tenauts in the ^illuge aitd bball similarly be
•liable to render seryices to the landlord, l^arther a lixed
annual rent of Bs. 12 jicr annum was reserved, the tenant
was empowered to efiect improvements, such as sinking a well,
planting a garden and building pocca houses, and finally it was
stipulated that in case the tenant died without issue
(auUd) the laud would reTort to the landlord. The plaintifEs-
appellants, who are occupancy tenants in the \illage Basuwal
sued in the Mnnsifi's Couit lor pre-emption afeseiung their right
to pre-empt the transfer on the gioond that deleudant 3 was an
niter stranger. The defeiidants resisted the claim by pleading
that the transfer sought to be pre-empted was not a sale, but a
mere leisse in perpetuity and therefi re could not be pre-empted.
The Lower Courts haTe concurred in accepting the Talidity of the
defendants' conteiition and have dismisfied the suit, and the sole
point for decision in ap(,eal preeented by the plaintiffs in this
Court is whether the tranbier in question is hable to a dhim for
pre-emption under the Punjab Pre-emption Act.
The decision depends entirely on an interpietation of the
agreement and applicaticii ol btctitns 3 and 4 of the Local Pre-
emption Act. By bectitn 4 the right of pre-emption is described
to arise in respect ot agricultural land only m the case oi sales and
in respect of village immoveable property or urban immoveable
property in the cafee ot salts or oi lortciosuies of the right to
redeem such property, 'iiieie is no question here as regards urban
or village immoveable pi opt ity. liie term ' land ' is defined by
Section 3 (1) to mean land as dehned in the Punjab Land Alienation
Act and to include any right ol occupancy acquired or existing
under the Punjab lenancy Act, ItbV, cr unaer any earlier law*
It wa s urged for the appellants that the subject matier of transfer
in this case was a right of oocupancy wittiin the dehnitioD of
land nnder Section 3 (1). This appears to me to be extremely
doubtful. As 1 understand the definition it refers to and contem-
plates a right in exiatence previous to the trantferi and not a
^54 citiL judgments-No. ise. [ Aicoid
li^ht wbich 18 created aod buugbi ii^o fzist'eBce by ibe traDBfer
itself. The same person oanDot at the same time be a proprietor
ai^d an occupancy tenant of the same land. Defendants I and 2,
therefore, before they ezeented the conveyance in question were
merely prpprietors of the land and not its occnpancy tenants.
By the conveyance a right of occnpancy was confeired on defend-
ant 3 by defendants 1 and 2, and the right therefore oame into
existence only sabseqaent to the execation and registration of
the document. Until this event occnired no E^ncb right existed,
and therefore what was transferred was a future right of
occupancy. When the right was brought into existence by the
conveyance, it became an occujancy right undir ibe Tenancy
Act, and may pcsbibly be said to be a liglt acqniied under the
Tenancy Act of 1887. But such acquisition is the subsequent
effect of the registered ttansfer and could not be held to bean
acquired right at the time when t^e couTeyance was executed.
In fact even the execution of the conveyance did not create the
right nntil the document was actually regif-tered. I am, therefore,
to say the least, not at all clear that theie was in this case a
transfer of agricultural land as defined by Section 3 (1} and
am rather inclined to hold that there was no such transfer. But
even conceding this matter, I am strongly inclined to agree
with the view taken by the Lower Courts that the transfer
in question is not a sale.
There is no proper definition of sale in the Punjab Pre-
anption Act, but by Section 3 (5) a sale is merely explained
as nut to include sales in execution.
The term '' sale" is, however, defined both by the Contract Aot
and the Transfer of Property Act. Under Section 77, Contract
Act, '' sale is the exchange of property for a price. It involves
<« the transfer of the ownership of the thing sold from the seller
*' to the buyer." Section 54 of the Transfer of Property Act
defines—'' Sale is a transfer of ownership in exchange for a price
'* paid or promised or part paid and part promised."
It is clear, therefore, that according to either of these two
definitions a sale involves the transfer of ownership. No other
definition was cited or quoted by the counsel for appellant.
It appears to me that a transaction by which ownership is not
transferred but is expressly reserved can in no sense whatever
be held to be a sale. The ownership need not be the full
proprietary right. It may represent but a partial interest in
the property, such as the right of a mortgagee or of an occupancy
tenant. But if the person executing conveyance purports not
0 transfer his rights aod interests in full and permanent!/
BIOB. 1907. ] CIVIL JUBGMBNT8— Na 186. 055
I • — r— ^'^— **
but only a part or for a period and reserres the rest for bimself,
it is not a transfer by way of sale. It may be a mortgapre if the
alienation is temporary only with a promi8e to redeem and with
certain stipnlations which nsnally characterise the variooa
classes of mortgages. Or it may be a lease if the transfer be
of a right to enjoy the property for a period or permanently in
consideration of price, Fcrvioe or other thing of valoe to be
rendered periodically or on specified occasions.
The stipnlations embodied in the agreement in question in
this snit, as already set ont, shew clearly that in this case the
transferor did not part in perpetuity with his full rights as an
owner, bnt reserved valuable rights for himself. He reserved
the right of reversion to himself as landlord in case the
transferee died childless, thus exdnding the collaterals of the
transferee from succession, and forther stipulated for an annual
payment of cash rent by the transferee in lien of enjoyment of
possession. This is not at all a case of severance of all con-
nection with the property, but on the other hand a permanent
relation is created by the agreement between the parties as
landlord and tenant, the landlord reserving certain valuable
rights in his own favour. If this is not a lease, it would be
hardly conceivable what would be a lease. By Section 105 of
the Transfer of Property Act a lease of immoveable property is
defined as '' a transfer of a right to enjoy such property made
*' for a certain time or in perpetuity iu consideiration of a price
'' paid or promised or of money, a share of crops, service or
*' anything of value to be rendered periodically or on specified
•* occasions to the transferor by the transferee, who accepts the
•* transfer on such terms." The definition so given seems to me
to be exactly applicable to the transfer in question in the
present, case, and if the contract is a lease, it cannot at the
same time be a sale. As a propiiet4)r cannot both be a
proprietor and an occupancy tenant at the same time, so a
transfer cannot simultaneously and concurrently be both a sale
and a lease. To hold otherwise would result in confounding and
obliterating altogether the defining lines which mutually
distinguish and intermark the various well recognised modes
and classes of transfers of immoveable property. There is no
analogy it seems to me between the present case and the case of a
sale of occupancy rights by an occupancy tenant, on which great
stress was laid in his argument by the appellant's counsel. A
sale of occupancy right would clearly fall within the definition
of sale as a transfer of ownership, but it would by no atretoh of
imagination or language fall within the definition •f a leue^ and
056 ^^^^ JUDGMENTS-Na lt6. [ Rmom
tbis oiroomstanoe alone is enoogb to distingaish and separate tha
two oases and show that the analogy sought to be established is
altogether false and baseless.
T am therefore clearly of opinion that the transfer in dispute
is not a sale. The view T take is clearly supported by Diuxm^
utulla y, Eagem Molla {^\ following two previous decisions of
the same High Court in Baboo Ram Oolam 8%ngh y. Nuning
Sahoy (*) and Moorooly v. Bahoo EureeBam (*).
The yiew taken by the Calcutta High Court was not
founded on any peculiarities of the Mnhammadan Law as was
oon tended by the counsel for the appellant, who did not quote
any definition of a s^le or lease under Mahammadan Law which
may be said to have inflaenced these decisions. He merely
referred to the circumstance that thepe decisions had been
quoted as authorities in Wilson's AnglO'Muhammadan Law in
the Chapter relating to Pre-emption, \ Bat this is entirely
inoonclusive 4o support the contention. On the other hand, it is
clear that the decision in Moorooly Ram\, Baboo Ewree Bam (*)
which was followed in two later deciHions, proceeded entirely on
the well marked distinction between a sale and a lease, a* distino-
tion which almost exactly in the same' terms was subsequently
embodied in the definitions of sale and *lease 'enacted in the
Transfer of Property Act The decision in Dewanutulla v.
KaM§m Molla (i) was evidently quoted with approval in
Nihal Ohandy. Rat Singh (^). Greit stress was laid in argu-
ment for appellant on this last case to support his contention,
but so far as I am able to understand the judgment, it
does not appesr to me to have decided the matter now in
issue. The docnment sued upon in that case purported
to be a lease in perpetuity granted in consideration of a cash
premium. No future rent was reserved and as pointed out
by the judgment the largest possible rights (short of absolute
ownership) including an unrestricted power of alienation wera
conferred upon the lessee. The']^ District Jodge had construed
the document as a sale of a transferable right of occupancy
within the meaning of Section 10, and in the absence of an
appeal; by the plaintiff, it was not considered necessary to
consider whether the document really conveyed a sale of
proprietary rights. The^ main question considered and decided
was, whether the provisions of Section <10 were applioabk
to a transaction by which a propnetor created a right of
(») I. L. R„ Xr Calc, 184. (•) 8 W. R,, 106.
(•) «5 W. B^ 48. <*) 41 P. 18,1892.
Decr. 1907. ] CIVIL JDOGMENTS-No. 136.
6^7
ocoapanoy in another peisoo for consideration, and was not
a pale of occupancy rights hy an occupancy tenant. This
qofsHon was held to he concluded >y certain hnthorities
which are quoted. But there was no decision or discussion 'as
to whether the transaction was a sale or a perpetual lease,
and no definitions or authorities were referred to on this
subject excepting Dewanutulla y. Kazem MoUa (i), already
alluded to. On the face of the transaction there was no
reeervatioa o£ rent or of periodical payment as required by
the definition of lease under Section 106 of the Transfer of
Property Act, and the conveyance thei^e sued upon may possibly
therefore if the question had arisen have been held to be
a sale. The other decisions relied upon for appellant which
are all quoted in Nthal Ohand v. Eat Singh (») seem to me to
be equally inapplicable to the present dispute.
Bolaki Shah v. Hafiz Esan (») was decided uud«r the
provisions of Act IV of 1872 prior to its amendment by
Act XIII of 1878. By Section 10, Act IV of 1872 as originally
enacted, the right of pre-emption was deBned to extend to
" all permanent dispositions of property," and it was accordingly
held that a permanent dispoflal of rights of cultivation in
favour of another person fell within the section. It is
however signi6cant, and especially remarkable, that by th^
amendment effected in 1878 the words '* permanent disposition
of property '* as originally enacted were altered, and the term
" sale " Was substituted in their place, thus expressly restricting
the scope and range of a right of pre-emption despite the
decision in 1874, which extended it to a lease in perpetuity.
If it were still intended to extend the right to perpetual leases,
the phraseology as originally used was certainly more exact
and would have been maintained and not alteied into a more
restricted form of transfer such as is a Sale. In Jahana v.
Ohowdri Jiwan Khan (*), the contents of the document sued
upon are not given in the judgment. There was evidently no
reservation of periodical payment and the convejance is
described in the judgment as a transfer by way of sale for the
sum of Rs. 10 of a right of occupancy.
There was naturally no discussion whether the transaction
was a perpetual lease or sale, but the question discussed and
decided was that the transaction represented a sale of " immove-
able property," and for this purpose the definition of immove-
able property as given in Aot^l of 1868 was referred to.
OW.Ji.B.,ZF Cole, 184. C) 67 P. it, 1874.
(V « P. U, 18857^ (•) 196 P. B^ im.
058 ^^^^^ JUDOM BNT8— No. 188. [ Bwou
The distinction between a^^sale and a lease 'was never
allnded to, and after .premising that^the transaction was a sale
of iirnioyeablo property as defined in Act I of 1868, the main
point* discDssed and decided was whether the occnpancy rights
sold were transferable or * not. This is farther apparent from
the question which was remanded for enqnirj, vig.f " whether
" when a proprietor of land creates a right of occapanc^ in
" such land by way of sale for a cash consideration as in ths
^' present case, the transaction is one which by costom gives
*' rise to a right of pre-emption."
On receipt of the retarn Barkley, J., observed :
" It therefore now remains to decide whether the deed of
« 25th AngDst 1878, which purport to be a sale to Jahana for
** the sum of Rs. 10 of a right of occupancy, was a conveyance
*^ of a transferable right of oocopancy."
These extracts from the judgment make it quite dear
that the conveyance sued upon purported on the face of it to
be a ssle, and wa<i taken and treated as snch throughout
without any doubt or discussion. Okiba v. Hayai (i) is
absolutely irrelevant. The only question decided in the case
WHS that the suit 'was barred by limitation and hence not
maintainable. It was further pointed out, though ** not
*' necessary to decide, '* that the resr'stered loase dil not.
purport to give any transferable right., and henoe no right of
pre-emption oonid be presumed [ to arise, though evidence
might be given to show that snch right existed by custom.
In the only remaining case Buhna v. Kahn Singh (*),
again there was no dispute or discussi(»n as r^ards the point iu
issue in the present case. A proprietor in the course of a so it
in which his tenant claimed occupancy rights oame to terms
with him, and in oonsideration of the payment of a sum of
money, which he called na»rana, gave him a cultivating right.
Tbe plaintiff treated the transaction as a sale, and sued for
pre-emption. It was not contended by the defendant that tbe
transaction was not a sale, and the only remark in the judg-
ment bearing on the question is as follows :—
*' The plaintiff has treated this transaction and, probably,
«' with reason, as a sale and claimed the pre-emption of it'*
It was foand that the right created was non- transferable and
aftT fnpfn^r enquiry directed for th^ parD3se, it Was held
that the plaintiff had failed to prove any custom which
would entitle him to pre-empt* such right. The facts of this
niS0P.B.,188S. OJVnP.B^lMMS.
DiOB. Id07. ] CIVIL JUDQMlQNtS-No. 186. 059
OiSd were very peoaliar. The tran^a^tioa represeated merely
asjttleaimb ofp^alio^j ii^pib) i* r.j cI^'im jf jjjipinsy, aad
aader the oiroam^taaoes it is diffioalt to imag^iae how the
ease oan he treated as aa aath3riey for holding that the lease in
dispate ia the present ease is really a sale.
It is thas olear that oat of five aathorities qaoted by the
coaasei for appellant the firsf was decided ander a different
phraseology which has since been amended, in the second the
docament parporfced to be a sale and wa<9 treated as anoh
wibhoat dispute or diaoos^ioo, the third was disposed of
solely on the qaestiou of limitation, the foorth was a case
of settlement of a pending dispate relating to ocoopanoy
rights which was treated to be a sale, and the fifth mainly
tarned on the qaestion whether Section 10 applied to a
creation of occupancy by a proprietor and not merely to a
sale of oooapancy rights by occapancy tenants.
In none of these cases the coLtents of the deeds sued
npon even remotely approached the definition of a lease
given in the Transfer of Property Act for in no ca^e was
payment of rent reserved as in the present case, nor was
a right of reversion to the exclaeion of collaterals expressly
stipalatod for as in the present case.
I fail to recognise how these oases can b e held to contra-
dict or oontrayene the distinction between a sale and a lease
as laid down in these cases by the Calcutta Bigh Conit and as
finally enacted in the provisions of the Transfer of Property
Act by the Indian Legislatare. At any rate I find insaper-
able ditficalty in pronoancing on the contents of the agreement
in qaestion in this case that it is a sale and not a lease.
In disonssiug this matter, I have restricted my attention
solely to the qaestion of interpretation of the agreement, and of
Sections 3 and '^ of the Pnnjab Pre-emption Act, and baye
left oat of sight altogether any general consideration which
may have a bearing on this qaestion. One tning, however,
is clear that ander the Tenancy Law a proprietor has an
absolnte right either to prevent an alienation of occnpancy
rights or baye a preferential right to purchase where the right
IS transferable without his consent. It is therefore clear
that an occupancy tenant is incapable of substituting another
person for himself as an occupancy tenant without the consent
of his landlord.
It would really be strange and highly anomalous if it were
held that the landlord has no such choice when he wishes to
660 CIVII/JUDGMBNTS-No. 187. [ BiGOftD
oreate an oc.jap.incy right for the firat time, and that by force
of pre-emptio 1 law another oecipanoy tenant, who might
even be ill-dispose I towird-i him, cin pUoe himsalf in saoh
cages in tha position of an ocoap^tnoy tenint mthoat the
landlord's onsjnti and a.(iirigt his will. Birrlntf the rights
of reversioners, which aro sufijiently aafe-jjaardjd otherwide,
there is no expediency either thit a proprietor shonld be
discouraged from creating occnpancy rights in other persons.
In fact the esp3dienoy may possibly look the nthjr way. Bat
pnch discouragement would Jexactly be tho onseqaenoe if it
were held that an oooupancy tenant can pre-empt the creation
of an occupancy right by the landlord. There is no fear
likewise of admitting a stream of strangers. The Punjab Land
Alienation Act and the Cnstomary Law as propounded by this
Court are sufficient guarantees against any such admission.
According to the agreement in this case the lessee, a retired
Subadar, is described as a resident of the village. But it
would not be material even if he were not. Be is a member of
an agricultural tribe and a member of the same oaste as the
proprietor, and the alienation is lecognised as complying fully
with the requirements of the Land Alienation Act. I would,
therefore, for the reasons already given and on a proper
interpretation of the agreement sued upon, hold that the plaintiff
is not entitled to sue for pre-emption as held by the Lower
Courts, and would dismiss this appeal with coste.
App^ dismuted.
{
No. 137.
Before Mr, Justice Johnstone,
RDKMAN DEVI,— (Plaintiff),— APPELLANT,
APPiLUTB SiDB. ^ Versus
SAIN DAS,-(Depbndant),— RESPONDENT.
Civil Appeal No. 426 of 1907,
Succession certificate^ Rival claimants — Competency of Court to refuse
to either claimant— Procedure-Succession Certificate Jet, 1889, Section 7.
Heto', that under Section 7 of the Succession Certificate Act, 1888, a
ristrict Court is bound if there are more applicants than one to determine
with all convenient speed to vrhich of the rival claimants a certificate ahculd
be granted, taking from the grantee such security as may appear
necessaiy.
It is not competent to such Ck)urt to refuse to adjudicate merely becauae
difficult questions of law or fact arise or the matter is in issue in a
regular suit.
fewJl, 1907.] OIVIL JUDQMKNT8-Na 187.
Miscellaneous first appeal from the order of Lata Karm Ohand,
District /oi/e, Oujranioalaj dated iOth January 1907.
DiQi Ghdkod, for « ppellaot. *
Ooyind Das, for responcieiit.
The jadgaient of the learoed Jadge was aa^follows :-^
JoHNsriora, J.-^Tbia is a peculiar case. The parties each ^ ^^tgusi 1907.
waat a saooession certificate in ooonectioa with a long list of debts
dae to W^thra Di^, daoda^el. The nrc^seat 'app)naiit, widow
of Mathra Oaa, claims noder a will of Mathra Das, while
respondent, who also applied for a certificate, is dec3ased's
brother and asserts that the will is invalid. He has also
brooght a regular sait to have the^will declared invalid.
Id these ciroamstaDces I think the District Jadg^ was
hardly right in dismissing both saccession cerbificate applications.
It is said by appellant and admitted on the other side that the
debts aforesaid are one by one becoming time- barred, and nntil
a certificate is granted to some one this process will continue.
This is very much against the interests of whichever party is
ultimately suoeessful.
Section 7 of the Act ^makes it incumbent on the Oourt to
pass a definite order giving certificate to one applicant or
another with all convenient speed. If the question of title is
in doubt, the Court should decide it on primd fade grounds to
the best of its ability, give a certificate accordingly^ and take
security. It slionld not refuse to adjudicate because difficult
questions arise or because the matter is in issne in a regular suit,
which may not come to a final decision, what with appeals and
so forth, for years.
I accept the appeal, set aside the District Judge's order
and restore the case to his file* The District Judge should also
restore the respondent's application in the same^way by way of
review upon respondent's applying for this ; and then the
District Jodge should without delay give a certificate to the
fsaij primd /ocis entitled.
4fip6aZ oOofoM.
66li <^IVIL JaDGMBTS— No. 188. [ RmoU
No. 138.
Before Mr. Jusliee Johnetone.
ALLAH DlTrA,—(PLAiKriff),—PBTITIONBa,
RinsioMBiDi. { Ver$u§
RA.J KUMAR,— (OaifBHDAST), -RBSPONOBNT.
Civil Revision No. 1418 of 1907.
OustPm — Pr0-«mpf ton— Eacha BUla KahiUarhaM, Mohaila KabuU Mai,
Lahor4 Oity — Superiority of fosharenKip oi)3r mtre contijuity -^Burden of
proof^Punjab Laws Act^ 1872, SecHoti 11.
Foiund that the custom of pre*einptioii prevails la KucK% Billa Kabotar-
baz which is a part of UoKalla Kaboli Mjil, a sab-division of the city of
Lahore for the purpose of Section 11, Punjab Laws Act, 1872, and that a
co-sharer in the property sold has a preferential right as agaiast the owner
of an adjoining house.
The existence of a custom of pre-emption in the neighbouring knehoM
is sufficient to prove the existence of such a custom in a hucha into which
they run although no case of pre-emption may have occurred in it.
Petition for revision of the order of A. Kennngton, Eiquire^
Divitional Judge^ Lahcre Division^ dated 20th Febtuary 1904t,
Oertel, for petitioner.
Pestonji Dadabhai and Sheo Narain, for respondent.
The judgment of the Coort was delivered by
JOHNSTOHK, J. — The remand has now been made and I see
that tho first Court has found— '
(a) that defendant is a oo-sharer in the adjoining
boose ;
(6) that oo-sbarership is a snperior kind of vicinage to
mere contigaity ;
(c) that no sab-division can be defined in which hucha
Billa Kabntarbaz is situate.
The learned Divisional Judge agrees as to (a) and (6), and
he proceeds to discuss (c). He points out that the kucha is a
small blind alley and cannot be in it«elf a sub-division, but he
finds that in three kucfias close by and running into this
hucha the right of pre-emption has been exercised. He also
points out that in a recent law suit it has been ruled that these
lanes belong to liuhaUa Kaboli Mai.
I will first take up the matter of the existence of the custom
in the hucha Billa Kabutarbas. No doubt it has been doubted
in aeveral oaeee of Lahore City whether the anoientiy lecpgniaed
26^* July 1907.
Drai. 1907. ] CIVIL JUDGMBNTS-No. 188. ((($8
fiob-diviflionB called gvaars cao now be accarately identified, nee
Eahtm Fat v. Muhammad Din(^\ Oohal Ohand v. Mohan Lai (•),
bnt this to my mind is iramaferisl. There nre QDdoabtedly
snb-divisioDS thonf^h it may be impossible to lay oat bonodarieB
so as to separate ofi the whole area of the city into parts ; and in
many cases portions of the city have been treated as sub-divisioDs
for pre-emption purposes. The city cannot be taken as a whole,
and so, where exact identification of bonndariea is impossible,
we mnst take up the matter in a reasonable way. I wish to
lay down no general rnle ; bnt I say with confidence that when
we find a sroaU blind alley, in which no case of pre-emption has
occnrred and lanes ronnirg into it in which cases have occurred,
it is a. reasonable inference that in that section of the town the
:nstom does prevail, and so it prevails in ^the blind alley. Any
other oonclnsion would be pedantic in the extreme.
*
The next question is whether plaintiff's or defendant's
vicinage is saperior. I laid the bnrden of proof on defendant-
vendee, and I think Jat Devi v. Nouhat Bat (•), is suflBcient
authority for this. In my opinion the rnJe laid down there is
jadicions and sensible, whether some of the remnrks in the
judgment may be open to criticism or not. No donbt cases of
competition between co-sharers and neighbours are not forth-
coming, bnt again I would call it pedantry, pure and f»imple to
hold that this concludes ttie matter against plaintiff. The
saperior rights of co-sharers have always.been recognised in every
department of pre-emption law, see Section 12 (a), Act IV of 1872,
and the new Act. Though Courts administer the law, they also
administer common sense, and, in my opinion, the superiority of
oo-sharership over mere contiguity is obvions and patent, and is
one of those things which can be taken for granted. The reason
why contents have not occurred is no doubt that neighbours
virtually never dream of asserting equality with co-sharers.
I allow the revision and give plaintiff the decree prayed for.
He must deposit Bs. 145 in Court within one month of this date
and then he will take the house subject to mortgage rights. If
be fails to pay into Court, suit stands dismissed with costs
throughout. If he pay^, venlea pays the wh'»le of his costs.
ApplUatian aUowed.
(») W P. «., 1901, (•) 0 p. a, 190i.
(>)nP.B^1905.
ApPILUTB SZDB.
1^ cmL JUDGHinCW-No. ISO. [ Bcoobd
No« 189«
'Before Mr. Justice Robertson and Mr. Justice
Kensington.
RALLIA AND ANOTHER,- (DBrKNDiNT8),—APPBL.
LAHTS,
Versus
GOKAL CHAND,— (Plaintiff),— RESPONDENT.
Civil Appeal No. 491 of 1906.
Right of $u%t — Party loifhout right or inter^ in subject nuBtter —
Ma$ntainahtlity of »uit by^Unneceaaary trial of issues concerning private
affairs of parties.
A testator governed by Hindu Law bequeathed all his real and personal
estate in the absence of a son to his widow for life and after her death to her
dang)iter*s son, and in default of such issue it was to revert absolutely to
the first taker and expressly desired that neither his brother nor any of his
family .should under any circumstances inheritor interfere. The testator
died and left surviving him his widow and a minor daughter. Some five
months later the widow announced the birth to her of a posthumous son.
Thereupon the brother of the testator sued for a dedaration that the
alleged newly bom child was not the lawful son of the testator.
Held, that as by the terms of the will tiie plaintiff had no doe ri^t or
interest of any kind in the estate of the testator, he being neither an
immediate nor a prospective reversioner, the suit was not maintainable.
In such circumstances the unnecessaiy trial of issues concerning private
affiurs of parties should be avoided and the Courts must see that
unscrupulous persons in plaihtifTs position are not allowed to unnecessarily
drag into publicity private matters with which the case is not directly
concerned. In the present case there was no occasion for taking evidence
on the points whether the boy was a supposititious child, or whether the
testator and his wife had the capacity to beget a child.
Rule of construction of Hindu wills considered.
Further appeal from the decree of Captain B. 0. Boe, Divisional
Judge, JuUundur Division,]dated 8th February 1906.
Oertel, for appellants.
Ishwar Das, Sheo Narain and Sohan Lai, for respondent.
The jadgment of the Goort was delivered by
ion? KiNSiwaTON, J.— The first ground of appeal has not been
^ * pressed in armament and js on the faoe of it not aiaintainable.
The plaintiff elected to' valae his suit at Rs. 500 and wm within
his rights in doing so, even thoagh the sait may indireotlj
involve property of oonsid^rable value.
We think it neOMsary to s-ay ^hat the line apon which
the suit has been conducted in the first Court, and to
Dbcb. 1907. ] CIVIL JUDGMENTS— No. isd. ^gg
extent also in the lower Appellate Cooit, is improper on
the pleadioi^p, and has led without safficient groond to a
very extensive enquiry, the whole of which might h&ve been
avoided if the Coorte had been content to examine
carefnllj the main issue in the case. lo partionlar the
District Judge has allowed himself to drift off from fchat
main i^sne to extraneous matters which need never have been
dragged into Court at all. And in dealing with those
matters he has introduced into his judgment and discussed
with quite unnecessary profusion of detail a variety of
technical questions on medical points which would have been
much better left untouched. We cannot approve of the
license given to the plaintiff to require evidence to be
produced at great length on these questions, or of the
attitude assumed by the Court in dealing with that evidence.
In our view of the case the whole of it was irrelevant,
but even if the question of Rallia's legitimacy could be
properly investigated by a declaratory suit in the nature
of one for perpetuation of testimony, the Court should have
declined to permit the plaintiff to use it as a means of
inflicting upon defendant's family the dishonour of having
all sorts of the mof»t private matters openly discusfied
in Court without any attempt at judicial reserve. The question
which the Court set itself to determine was whether the
defendant Rallia was a supposititious child. If this question
had to be decided, evidence as to the facts was relevant,
but further speculations in regard to the capacity of the
late Lala Sagar Mai and his wife Mnssammat Karm Devi
to beget a child, and all the medical detail, connected
therewith, was beyond the fair scope of the trial.
When Ut. Ellis took ever the case the issues had been
already fixed. Of thtse the Ist, brd and 4th dealt with
questions concerning plaintiff's right to bring the suit and
the validity and effect of a will, while the 2nd covered
the question of Rallia's parentage. There has been no
attempt in either Court to deal with anything but the
last question. The District Judge recognised the poFsibility
that the will might have an important bearing on the
case (last paragraph but one of his judgment at page 14 of
the paper book), but expressed no opinion as to its legal
force, giving as his reason (page 4) that before him it was
frankly conceded that issues 1, 3 and 4 were unnecessary.
We find it difficult to believe that the defence can have
really been so ill advised as to give up these issues even
^66 CIVIL JUDGMENTS— No. 139. [ RacoRD
in the DtMrict Court. And in the 5th groond of appeal
to the Divisional Coart it is distiuctly nrged that the
Dihtrict Judge was mistaken in thinking that they had been
given op. Nevertheless the learned Divisional Judge entirely
ignored this main ground of appeal giving no reason heyond
an obviously inconect apsertion (page 21, line 42) that the
validity or otherwise of the will was not before the Court.
We much regret that the Courts should have so seriously
misapprehended thfe position before them, being apparently
misled by the rancour witfa which the plaintifiP was improperly
permitted to eondnot his case. On the one hand there were
certain plain and not very recondite questions of law to
be considered, as to which Civil Courts were eminently
qualified to adjudicate. On the other there was a mass of
contentious evidence, much of it on speculative points on
which only the most cautions opinion could be properly
hazarr'ed by a Jodge even if he was compelled to discaas
them. Yet we have one Court after another avoiding its
plain duty on the law points and confidently advancing the
rashest opinions on the speculative qnestions, though they
inclndrd matters upon which even a medical expeit woould
speak with the utmost diffidence.
With these remarks we propose to leave aside all the
discQSsion bearing on the question whether Mussammat
Kaim Devi could have given birth to a child or did in
fact do so in August 1904. We must, however, point out
that much of the argument on the point is vitiated by
misapprehension of the evidence of Rai Achhru Ram. 1 hat
officer, the credibility of whose evidence is rightly held to
be beyond doubt, is supposed to have made a statement
(page 4, lines 40—46) that the late Lala Sagar Mai informed
him of his wife's pregnancy at some time between June and
September 1903, and this is seized on as giving an almost
oonclnsive reply to the otherwise ample evidence as to
Mussammat Karm Devi's condition in 1904. The real fact
is, however, that Rai Achhru Ram was frequently seeing
Lala Sagar Mai up to within a short time of the latter's
death in March 1904, acd the conversation referred to may
very well have been held at a time which entirely destroys
the argument.
Both Courts appear to have started with an unwarrantable
assumption which unconsciously biassed them in their coneidet>
ation of the remaining evidence on all that part of the case.
Dbcr. 1907. ] CIVIL JUBGMBNTS-No. iSd. 667
~0 • '
Assaming that no posthumoas son was bom to Lala
Sagar Mai, the coarse of saccession bj Hinda Law woold
have been as folbws :—
(1) The widow, defendant 2, Massammat Karm Devi ;
(2) The daughter, Mossammat Jiwi, defendant 3
(recently married) ;
(3) The daughter's children, if any ;
(4) The brother, Gokal Chand, plaintiff, (as the parent«
have already died). It has b^en held generally,
eicept in Bombay, that a daughter fakes an estate
in life interest only, and i< is -therefore probnbly
correct to say that plaintiff has a reversionary
interest in Lala Sagar Mai's property, remote
though it may be, which he would have been
entitled to protect if his brother had died intestate.
But Lala Sagnr Mai did leave a will, the genuineness of
which is not open to doubt, dated the 9th September 1903.
Plaintiff's pleader has suggested that this is not an actual will,
but a mere draft. This contention is impossible in face of the
fact that the document is entirely written (in English) by Lala
Sagar Mai himself, from the evidence of Rai Aohhru Ram as to
conversation with the testator about it in 1903, and, most import*
ant of all from plaintiffs own admission that he found among
his brother's papers after death not only the will produced but
also the original draft prepared by Rai Bhag Mai. The Lower
Courts have not discussed the will, but as it is on the record and
conclusively proved to be genuine, no remand is required to
determine it« effect. The only question is as to its construction,
and we have no difficulty in dealing with that at once. The
authorities about wills are summarised in paragraph 429 of
Mayne's Hindu Law. It is enough to say that " the single rule
"of construction in a Hindu, as in an English will, is to try and
" find out the meaning of the testator, taking the whole of th«
" document together, and to give effect to this meaning.**
The document is short and of such importance to the
defendants that we reproduce it in full in view of the possibility
that it may be lost hereafter. It runs as follows : —
" I, Sagar Mai, Mandror,^ son of Lala Surat Ram Mondror,
'* of Jnllnndur city, do hereby declare that if I die sonless this
*' will be my last will and testament.
^ \ri, — That all my death ceremonies should be done
^ according to the usual rites and customs of my brotherhood.
608^ <^IVIL JUOOMENTS-No. 139. . Rioai
" 2fi£2.— That if I die before Bibi Jiwi^e (that is my daughter
" Jiwi Bibi'fi) marriage, the marriage aboold be celebrated
" nooordlDg to the usoal castom of my family.
" 8rd.— I leave all my immoyeable and moveable property to
" my wife till her life. After that she can give it to her
*' grandson if Bibi Ji^ i gets one, but not to her paients or any
*• of her brothers.
" 4ih. — In all the oases failing I leave the whole property at
" her dispopal, hot slu will have no power to let the property go
" to her father's family,
" 5^A.— -Earm Devi will have the charge of everything^
" after my demise till her death, and this honse that 1 have bnilt
" will go iodharmarth*
" Bth.'^l wonld like to make a special mention of LalaGokal
*' Ghacd or his adopted son or other of my relativep, so that they
** may have no interference in my affairs after me.
Saoab Mil,
9^^ S^fftember 1903."
For present purposes the operative clanses of this will axe
3) 4 and 6. We oonstroe these as directing in the clearest
possible manner that in tbe absence of a son the widow, Mussam-
mat Karm Devi, will take the whole estate for life in the first '
instance, and nnder certain circumstances absolutely, subject
only to a piovision that she shall not alienate to her father's
family. With certain restrictions her powers of disposal are
complete^ and the testator's manifest desire was that neither
the plaintiff nor any of his family should, under any ciroum.
stances, inherit or interfere in any way.
Considering the soiV of life led by Lala Sagar Mai, the way
in which he had bnilt up his own fortune bnch as it was, and
his admittedly unhappy relations with his own family, we can-
not even say that the will is hard or unjust to the plaintiff. The
latter appears to have had no sort of moral claim to the pro-
perty, but whether he had or not is immaterial. He is deliber-
ately excluded and the Courts are bound to give effect to tbe
testator's wishes.
From this it follows^hat whatever the faets may be about
the boy Ballia, the^plaintiff has no statnsl^to^maintain the preaent
suit He is neither an^immediate nor a^prospeotive reversioner. In
the last lesource it *i« open^to the widow to give the p^party to
Ballia himself if £be so de^itcp, ov toaoy otbar gtmrgwr if be bo
Dmb. 1907. ] CIVIL JODGMBNT8-N0. 189. 660
one, and plaiotiff cannot control her. So far as Lala Sagar Mai's
property is concerned tlie plaintiff is eotirelj onto! Conrt.
A further argnment wae addressed to ns tbat if a sop-
posititioQs son is introduced tbe plaintiff is entitled to now place
the facts beyond dispute so as to avoid tbe possibilitj of tbat
son hereafter claiming the whole or part of bis own (plaintifPs)
property. As to this we think it enoogh to say that this is not
the ground on which the suit is brought. Further, if plamtifF
really does fear any such eventu ality, it is open to him to at once
protect himself absolutely by, in his turn, making a will
disinberitiAg Rnllia. He does not require the aFsietance of the
Courts by tVe indirect imd barsFsing remedy of a declaratory
suit, and it would be an improper exercise of judicial discretion
to grant him specific relief under the circumstances. A specu-
lative suit of the kind involving immediate offence of the gravest
kind to Lala Sagar Mai's family, with no sort of correspondiog
benefit to the plaintiff, cannot be brought as of right.
There is no just pretext for dragging the defendant's
private affairs before tbe world in the shameless wny attempted.
We can only regret that owing to the incorrect attitude assumed
by the Lower Courts the atteirpt should have been so far
successful. A gross injury ha<) been done to the defendants by
permitting the machinery of the law to be UFed for an improper
purpose, but we cannot now do more than make it clear how
entirely we disappi-ove of the manner in which the plaintiff waa
unfortunately permitted to conduct the suit.
Holding that the suit is not maintainable we aet aside the
findings of the Lower Courts as being given on mattery which
do not concern the plaintiff, without expressing any opinion on
the merits of the case on the sole issue which they have
discussed.
The appeal is accordingly accepted and the decrees of the
Lower Courts are reverped. The plaintiff's suit is dismissed
absolutely with costs throughout to tbe defendants.
Afp$al alhmd.
570 CIVIL JUDQMBNTg— No. 140. [ Ebc<Mid
No. 140.
Before Mr. Justice Robertson arhd Mr. Justice
Shah Din.
HAKIM SINGH AND OTHBRS,-(Pl\wtifps),-APPEL.
LANTS,
Appblliti Sidb. I Versus
WARTAMAN AND OTHERS,- (Dbikh dints), —RESPON-
DENTS.
Civil Appeal No. 25 of 1907.
Declaratory decree^Suit Sy a person in potsestion for a deelaraHon of
title in immf>vnhle property^ Cause of action against defendant— Adverse
entry in revenue papers -Limitation Act, 1877, ScheduU 11, AHicU ISO.
• Held, that a suit for a declaration of his title to immovable property by
a person in possession as proprietor is not barred if brought within six years
from the time when the defendant attempts to oust him from the land althoo^
a right to sue the defendant who had been recorded as owner of the proper^
in the Settlement Record had already accrued and become barred.
Nathu V. buta (»), Natha Singh v. Sadiq Ali (•), Futteh Singh v. Kharh
Singh (»), and Francis Legge v. Ramharan Singh (•) referred to.
Further Appeal from the decree of ^fnjor 0. C. Beadon, Divisional
J»dge, Hoshiarput Division, fated I9th March 1906.
Snkh Dial, for appellants.
Harnam Dap, for respondents.
The judgment of the Conrt was'delivered by
28th March 1907. Robebtsov, J.— The important facts in this ease are as
follows : —
One Mnssammat Sukban died on Ist March 1895.
After ber death, the members of the patti^ in which the
land wbiob she bad held was Bitnate, claimed to be the owner
of tbeland. This claim was congested by the plaintiffs-appellants
and defendants Nos. 1, 2 and 8, who set np their own title and
alleged their popspssion. As to mutation the i^evenne antho-
rities had the names of the pottidars entered as owners, and the
names of plaintiffs and defendants 1, 2, 3 entered as in possession.
The plaintifFt appealed and the order was upheld by the Deputy
Oommissioner on 25th Jannary 1898 who referred any one
aggrieved to a civil suit. Admittedly this gave the plaintiff
a cause of action under Section 45 of the Land Revenue Act.
The possession* of the plaintiffs was not however disturbed,
and they did not see fit to bring a declaratory suit. But on
(0 27 ,P. iJ., 1881. (•) 88 P. B., 1882.
(•) SO P. 11^ 1900. i*)LL.B.,XXAU.,9t.
i)KOB. 1907. •) CIVIL JUDaMBNTS-No. 140. g jl
22nd September 1904 the } attdiats np-pMed for partition and the
defendants objected and weie directed to bring a regular suit to
eBtablish their title on 2lBt December 1904. They accordingly
bronght the prfsent snit on Kth Febivary 1905. It is
contended, and has been held by the learn'ed Divisional
Judge, that this snit is barred by limitation, the argument
being that a cause of aotion having arisen on 19th December
1897, when the plaintiffs' claim to be entered as owners
was rejected and the defendants' names entered, the suit is
time-barred under Act 120 of the Limitation Act, as no new
cause of action has arisen, giving rise to a fresh period of
limitation.
For the appellant it is urged that that though undoubtedly a
cause of action aiose in 1897, and if no other canse of action
had arisen since, the suit would be barred, a fresh cause of
action constituting a fresh invasion of plaintiffs' title did occur,
when it was attempted to oust the plaintiffs from pofisession
by means of partition in 1904, so that the claim is within time.
This is the only question before us.
The rulings quoted to us have been all examined. '
In 'Francis Legge v. Eamharan Singh (>;, it was held that
a f'Uit for a declaration based i n an entiy made in the settle-
ment lecoxds more than 11 years befoie was barred. There
had in that case been no fresh invasion of the plaintififs' right,
so the case is not on all fours with that before us.
Naiha Singh v. Sadiq Ali{^) is a ruling by a single Judge
which does not help us much, but which so far as it goes
supports the view put forward by the appellant, as in that case
it was held that the duit was not barred under Article 120,
although more than six years had elapsed since the entry,
because the defendants weie attempting to make use of the
entries to oust the plaintiff from the land. In that case it
was held not to be shown that defendants had had any part in
the making of the entry,
Futteh Sthyh v. Khark Singh (*) is not very much in
point*
Nathu V. Buta (^) is however almost exactly in point.
In that case it was held that though a suit for a correction
of a settlement entry might be barred (a suit to which a
C)I.L. B., XX All, 86. (•) 88 P. B., 1882.
O) BO P. B., 1900. (•) 27 P. B.. 1«81,
6^ CiViL iaDGMiNTB— No. li6. [ Bioo»
declaratory 0Qit under Section 46 now corresponds), ''.there seems
'* to be no reason wh j the Conits shonld not have tried and
" decided the qoestion of the proprietary title of the plaintiff
" and given him a decree declaratory of such title if it were
« proved/' '
It mnst be noted that it is only the procedore laid down
in the Land Bevenae Act for the partition of land v?hich foroes
the plaintiffs to come in as plaintiffs. In the ordinary ooarse
being in possession, it woald be opon any one asderting a
snperior title to prove it before ousting them, and an entry
in the reoords would be no title in itself, but merely a piece of
evidence of title and the failure of the party in possession to
bring a declaratory suit could not have operated to extinguish his
title. Moreover the declaratory decree is a form of relief
which it is discretional y to seek as well as discretionary to
grant. A man is not bound to bring such a suit on any and every
possible invasion of his title, and such suits are not encouraged
by the Courts unless tbey are cleaily neerssaiy. If we held the
plaintiffs' suit forced upon them, be it remembered by
defendants' action and the procedure laid down for partition to
be barred, we should hold that, though in possession, their title
has been extinguished in effect by their neglect to sue. We think
that they were entitled to use their discretion whether or not
they would use the permission given in Section 45 to sue or not,
but that they are not debarred from bringing a suit within the
period of limitation to contest the much more serious invasion
of their title involved in the attempt to oust them from
poBsewion.
We think the plaintiffs had a fresh cause of action from the
order of the Revenue Officer in partition proceedings on 21st
December 1904 and could bring this suit within six years from
that data.
We accordingly aooept the appeal and remand the case
under Section 562 for decision on the merits. Stamp on appeal
to be refunded. Oosts to be costs in the oause.
Appeal aUowed.
Dice. 1907. ] CIVIL JDDQMINTS— No. Ul. (;y3
No. 14L
Before Mr. Justice Bolertaon and Mr. Justice Shah Din. '
• *
SANDHE KHAN,— (PLAWTirF),-APPELLANT, ^
Versus f Appuxaw SiDl.
BHANA AND OTHERS,— (DErENDANTs),— RESPONDENTS.
Civil Appeal No 1032 of 1906.
* Vendor and purehaaer—Personal covenant of indemnity againat defective
title^Aequisition of property by pre-en^ptor-'Defeetive title^Right of
prememptor to enforce covenant against original vendor,
Beldf that a personal covenant of indemnity in a deed of sale under
whicli a vendor guarantees bis title in the property conveyed solely to the
original vendee and in which he agrees to indemnify that vendee if disturbed
by adverse claims cannot be held to enure for the benefit of a pre-^mptor who
succeeds in obtaining a decree for possession by pre-emption. ^
Further ojppeal from the decree of Qazi Muhammad Aslam^
Divisional JuSge^ Ferozepore Division^ dated l^th July 1906.
Mnhammad Shafi, for appellant.
Beecbej, for refipondents.
The judgment of the Court was delivered by
BoBBRTSON, J.^Tbe facts of this case are snflBcieDtlj given 2lith March 1907.
in the follovvin^ jndgment of the learned Divisional Jadge : —
The land in dispute was mortgaged by defendants Nos. 1 to 4 to one
Jowahir Mai for the sum of Rs. 1,228, who sold his rights to Sandhi
Khan, plaintiff, on Ist of June 1904. On 12th of December 1904
defendants Nos. 1 to 4 sold the equity of redemption to Megh Raj,
defendant No. 8, for Rs. 4,700. On 19th of December 1904 Munshi
and others filed a suit for the possession of jth share in the land,
on the ground that defendants Nos. 1 to 4 had no right to sell their share.
In this case the plaintiff was also impleaded as a defendant and he filed
written pleas while this case was pending, the plaintiff sued Megh Raj, the
vendee, for the possession of the whole land by pre-emption. On 15th
June 1905 Sandhi Khan compromised with the vendee, and a decree on the
basis of this compromise under which he was to pay Rs. 2,472 to the vendee
was passed in plaintiff^s favour. On 80th August 1905 Munshi and others*
ftlftim against Megh Raj, Sandhi Khan and others was decreed. The present
suit was filed by Sandhi Khan for the recovery of ^th share of the price
paid by him for the land decreed in Munshi and others* favour, on the ground
that under the terms of the sale-deed executed by the defendants Nos. 1 to 4
in Megh Baj*s favour, they (the defendants'* were bound to recompense him
for the loss that he had suffered on account of Alunshi and others' decree.
The lower Court, on the aiitbority of the Chief Court Judgment reported in
Punjab Becord Ko 24 of 1901 and No. 93 of 1 902, held that the pre-emptor
stood in the shoes of the vendees, and that therefore the condition as to the
payment of any loss that might accrue to the vendee, on account of lack of
title applied equally in favour of the pre-emptor. Defendants appeal against
that order.
ffj^ CIVIL JUMMBNTS— No. 142. t BioOM
Appiluti 8idi.
The only qnestion which we have to dedde is whether or
not a condition in the original deed of sale in which the vendor
gnarautees his title in the laud solely to the original Tendee,
and in which he agrees to oompeosate that vendee if distorbed
is one which enures for the benefit of the pre-emptor who
sncceedfl in obtaining a decree for possession on pre-emption.
The learned Divisional Jadge held that it did not, and
after ca^-efnlly oonsiderinpr all the rulings quoted to na and the
argamentfl put forward we agjree with that view. None of the
rulings qnoted— JTri/tt V. BAwpa ('). ^<*^*' ^^^^^ ^' ^^^^J^^
Khan (•). Balcam Singh v. Indar (»), BaJdeo Das v. Piare
Lai (^ ), Boglia Singh v. Ourmvhh Singh C"), Oohind Dayal v.
Inayatullah (•), Durga Prasad v, Shamhhu Knth C\ Tajammul
Busain V. JJda (»), and Ahmad Shah v. Walidad Khan (») —
appears to us to snpport the contention. They all lay down
the necessity for the pre-emptor to discharge all the burdens
undertaken by the original vendee But a pre-emptor has no
right to the advantage of any purely personal covenant by the
vendor in favonr of the vendee, which is a thing qoite separable
from the sale of immoveable property. The pre-emptor is
neither the representative of the vendor, nor the assitrnee of the
vsndee, nor has he any right of pre-emption over any pergonal
covenant. He mnst take over the whole bargain as regar^ls
the immoveable property in so far as his rights to pre-empt
extend, and they do not extend to personal covenants snch
as that .of indemnity inclnded in the original sale-deed in
this case. The appeal therefore fails and is dismissed with costs.
— — Appeal dismissed
No. 142.
Before Mr. Justice Rohertson and lir. Justice Shah Din.
JAHAN KHAN AND ANOTHER,- (Plaintiffs),—
APPELLANTS,
Versus
DALLA RAM AND OTHERS,— (Defendants),—
RESPONDENTS.
Civil Appeal No. 487 of 1906.
Ooniraet^Oivil Court — Pow§r of to d§cUn€ to onforee a valid eontraet
on mer§ assumption that it is for the henifit of a psrgon prohibited hy law to
entsr into such contract.
fl«W, that a Civil Court has no ro^er to decUne to enforce a contract
which is leg^ and binding ineTery lespect on the face of it as between
( •) 80 P. B., 1893. (•y98P. R., 1902. '
(•) 56 P. B., 1899. (0) J. X. ij.^ rill All, 776.
(•) 46 P. B., 1 902. (») /. L. R„ VIU AU,, 8d.
(*) 24 P. 18., 1901. (.') J. L. K, III All, 688.
(•) 96 P, A, 1906. '
,bgcm.l907,i CTVTL JUI)aMBNtS-Ko.l42. 67§
— — ■ ■ ' ■ — — ail I i»i I
the parties on a mere assamption that in reality it is intended for the
benefit of a third person against whom a statutory prohibition to enter into
such contract exists.
Furiher appeal from the decree of W. A. Harris^ Eiquire^
Additional Divisional Judge, Shahpur Division, dated 28^^
Fehfuwry 1906.
Sakb Dial, for appellants.
Isbwar Das and Gbbind Das, for respondents.
The jndgment of the Court was delivered by
ROBBBTSON, J.— The facts in this case appear to bo as I UA Jany. 1907.
follows : —
The plaintiffs Jaban Khan and others sne for possession of
certain land mortgaged to them by one Ali Khan on 5th March
190i for Rs. 2,210. The consideration is stated to be.
Rs. 1,877 on acooont of book debts to Mai Chand, Megh
Raj and Bela Ram. Rs. 256 to be paid to one Ud€, a previous
mortgag«ie, the mortgage being withont possession. The mort-
gagor admits the debt of Rs. 1,877 to have been due to Mai
Ohand, Megh Raj and Bela Ram, bat says that this debt
has now been discharged. He also admits that Re. 2.56 was due
to Udfi. Petty items were Rs. 45-5-0 cash and Rs. 3b expenses
of registration. Tne mortgagor also pleaded that the real mort-
gagees are Mai Uhand, Megh tt^j and Bela Ham, and tries to
shelter himself behind the Alienation Act.
Now it is quite clear that Mul Ohand, Megh Raj and Bela
Ram have given up their claim against the defendaot-mort.
gagor. It is also quite clear that Ali Khan executed the
mortgage in favour of the plaintiffs, and that under that
mortgage he the plaintiff, an agriculturist, is entitled to posses-
sion. He has obtained a discharge for the mortgagor of the
debt of Rb. 1,877 which is all that concerns the mortgagor
in that connection, and he has tendered Rs. 256 and paid that
sum into Court for Ude, the previous mortgagee, whose hypo-
thecation gave him no claim to possession. It was not contended
hore that the mortgagee was not entitled to possession as
against the mortgagor. He has fulfilled, gui thd mortgagor,
the terms of the mortgage.
The learned Divisional Judge, however, writes, " an import-
" ant Act like the Punjab Alienation of Land Act is not to be
" permitted to be circumvented by rival money lenders, and I
"shaU not allow it." That is not a correct way of looking
676
CIVIL JUDGMBNTS-No. 142. C B«X«»
at the matter. All acts of the legiBlatnre are cqnaUy im-
portant and eqnally to be oairied out by the jndiciary who
are not entitled to go beyond them. Here we havd a mortgage,
perfectly legal on the face of it, execnted in favour of an
.Vicnltnrist who seeks the aid of theCoarta to enforce his
rights, as bet-veen him and ihe mortgagor there is no infnnge-
„ent whatever of the Land Alienation Act in granting the
relief claimed. The object of the Act is not to prevent money-
lenders from recovering snme jointly due to them by any
legal means in their powers, and if they can induce an
agriculturist to pay off a debt due to them and to take »
mortgage "from their debtor as security for himself there is
nothing in the Act to prevent such a course. Indeed the
object of the Act is attained, rather than defeated by what
has occurred here. Without the Act, Mul Chand, Megh Raj
and Bela Ram, non-agricultural money-lenders, would undoubtedly
ha^e taken the mortgage themselves and obtained poeseswin
of the land. The Act prevents this, though of course they
could have taken a mortgage in one of the specified permissible
forms But Jahan Khan is prepared to lend the debtor the
money uecessa.7 ^ V<^7 »« *»»« money-lenders and to t«ke
the land in mortgage himself, he being an agriculturist and we
are only asked to decree him reUef. If Mul Chand, etc., really
are at the back of Jahan Khan, the Land Alienation Act can
be properly invoked should they ever attempt to assert any
right to the possession of the land in vittue of the mortgage
now before ns. So far as Jahan Khan is the mortgagee, Jahan
Khan asks for possession under his deed ; he is entitled to it,
and there is nothing in the Land Alienation, or any other
Act, which justifies us in refusing him the relief to which he
is legally entitled. We accordingly accept tjie appeal, set
aside the judgment and decree of the learned Divisional Judge,
and decree plaintiffs' daim to possession against the mortgagor
with costs throughout.
As regaids Ude. the holder of the previona mortgage
without possession, it was unnecessary to have made him a party ;
L denies that B«. 256 is aU that is due to hxm, and he « not
in possession and cannot resist the present claim to possession.
As regards him therefore the suit U dismissed with ooeta
tbroagboat.
i)BOft. 1007. ] CIVIL JUDGMBNTS-No. 148. $^7
No. 143.
Before Mr. Juaiice Robertson and Mr. Justice Shah Din.
THAKARIA AND OTHERS,— (DBFBUDAirr8),—APPBLLAKTS, \
Vertus \ AngVLLXB Soi.
DATA RAM,— (PLAiKTiFf),— RESPONDENT. J
Civil Appeal No. 899 of 1906.
Punjab Pre-emption Act, l£r5, Section 2B—ArV^icaUlity to rights already
accrued— Change of rule as to existence of cvstom no ground againet
applicahiHty,
Beld, that Section 28 of the Punjab Pre-emption Act, 1905, applies to every
snit wheie the ngat to sue for pre-emption had not expired at the date of the
commencement of the Act.
The fact that where nnder the old Act a special custom for the enforce*
ment of a right was required to be substantiated by a plaintiff, the new Act
relieves him of the burden of proving that cusUhu and confers those rights
on him by Statute, has on effect as on the applicability of the section to rights
which were not barred by the law of limitation at its commencement.
Further appeal from the decree of Major O, 0. Beadon, Divisional
Judgey Hoshiarpur Division^ dated 9th July 1906.
Snkh Dial, for appellants.
Sheo Narain, for respondent.
The judgment of the Court was delivered by
ROBEBTSON, J.— The facts are fully given in the judgment 2ldthMar \ 19f'7
of the Lower Courts.
It is admitted fully here that if the Pre-emption Act,
II of 1905, Punjab, apphes, then the plaintiffs have a right
to pre-empt and the appeal must fail, it is, boweveri urged
that the claim is barred by limitation. Lndei the old
Pre-emption Act the plaiutitt would not have succeeded in
a claim to pn;-empt, unices he could have proved a special
custom, which it is suggested he clearly could not have
proved in this case. Uonsequently it is uiged he had no
light to pre-empt, until that ri^t was coulerred upon him
by the new Act.
It is urged, therefore, that the plaintiff, who had no
right to pre-empt under the old Act and whose claim is
created by that Act, comes within the purview of (Section 29
of the Act and not Section 28, and that his suit is baited
in consequence. Section 28 saye— " If any person who has
»« at the commencement of this Act a right to sue for pre*emption
gjpg ClVlii JUDQMBNTS-No. 143. [ BboobD
" which is nofc provided for under Article 10 of ihe second
" sohedale of the Indian Limitation Act, 1877, and is not
" barred ander Article 120 of the said schedule, may exercise
" snch a right at any time within one year from the date
*' of snch commencement."
Mr. Snkh Diyal argaes that as the plaintifE had no right
to pre-empt before the commencement of the new Act, he
had no right at the commencement of ihe Act, and as his right
is one created by the Act, Section 29 applies, and his right
to sue is barred.
We think that this is a strained interpretation to pat
on the Act, and that the distinction between a right to
sne and a right of pre-emption has been overlooked. All
that a limitation clause deals with is the right to sne not
the substantive rights on which a suit is based.
Now it was clearly open to the plain ti£E at the commenoe-
^ ment of the Act to sue for^ pre-emption on the same allegations
as were made in this suit. And had he succeeded in proving
bis right under the custom iu force in his village he would
have got his decree. The probability that he would have
failed in such a suit is quite beside the question. He clearly
had the right to sue, and Section 28 only deals with the
right to sue. No doubt the new Act relieves him of the
burden of proving that he has such a light by custom,
and confers it on him by Statute, but ihat does not affect
his right to sue, it only affectfl the subsequent course of
the suit.
Section 29 applies clearly only to the future. Section
28 is intended to provide a period of at least one year for
all persons who had the right to sne at the commencement
of the Act. bection 29 provide for the period of limitation
in all oases in which the right to sue accrues after the
commencement of the Act. In this case as the plaintiff
clearly had a right to sue at the commencement of the Act,
though he might not have been able to establish his daim,
he is entitled to the benefit of Section 28 and had one year
within which to sue from the date of the commencement of
the new Act II of 1905. He has, therefore, sued within time.
The result is that the appeal ails and is dismissed with costb.
Jfpeal dismisted.
Dick 1907. ] OIVIL JUDOUENTS-No. Ut. ^Jr^
No- 144-
Before Mr. Justice Johnstone and Mr. Justice Lai Chand.
SUNDAR AND OTHERS,— PLAINTIFFS, \
WAZIRA AND OTHERS,— DEFENDANTS. )
Civil Reference No. 22 of 1907.
Jurisdiction of Civil or Revenue Court— Comnfin land ^Partition '^ Suit
for declaration that land ivas not subject to partition -Punjab Land Revenue
4ct, 1887, Section 158 (XVII) -Punjab Tenancy Act, 1887, Section 77 (8) {%),
Held, that a suit by occupancy tenants against the whole of the
individuals forming the proprietary body to (establish that they in common
with all the residents of the village are entitled to graze their cattle over the
village common land, and that therefore it should be exempted from partition
is not barred from the cognizance of the Civil Courts either by clause XVII of
Section 158 of the Punjab Land Revenue Act, 1887, or by clause (♦) of
Section 77 (8^ of the Punjab Tenancy Act, 1887.
Case referred by ^^ajor 0- 0, Beadon, Divisional Judge^
Hoshiarpur Division^ on Ibth January 1907.
The judgment of the Chief Conrt was delivered by
Johnstone, J.— In the village of Samur Kalan, Tahsil Una, I6ih July 1907.
Dietrict Hoshiarpur, there is a large area of shamtlat which the
maltksy defendantB in the prcBent cape, wi^h to have partitioned.
PlaintifFs err the t'jrupancy tenante in <he village. They ene
for the following relief or reliefs : — That the right of grazing
over the whole shamtlat aiea, which plaintiffs in common with
all the inhabitants of the village enjoy, be declared intact ;
that it he laid down that the said area is for use by and for
the grazing of plaintiffs and all the residents ; and that the
land be kept exempt; from partition.
This reference has been made by the learned Diyisional
Jndge in oider that it may be authoritatively raled whether
the case is one for a Civil or a Bevenne Court. Doubt baa
arisen in the mind of the Divisional Judge owing to the
conflict between two unpublished inlings of this Conrt, vi9.^
Shib Dial v. Pala (Civil Appeal No. 70.S of 1894), and
DasuY. Paras Bam (Civil Appeal No. 84 of 1900).
Section 116, Punjab' Land Revenue Act, 1887, draws the
distinction, in connection with partition cases, between (a)
questions of title, and (6) questions as to the property to be divided
or the mode of making partition. Under Section 158 (2) {xvit)^
jurisdiction of Civil Court is ousted in respect of *' any claim
^ for partition of an estate, holding or tenancy, or any qaestion
« connected witby or arising out of, proceedings for partition, m4
980 ^^^L JUDQMSNTd— No. 144. [ Bmmlo
'' being a question as to title in 41117 of the property of wbidi
" partition is songht." Lastly, Section 11 of the Oivil Prooedore
Code anthorizea the trial hy Civil Courts of all units of a civil
natnre except where the jurisdiction of these Conrts is expressly
barred by law. Now, in my opinion, when these plaintiffs ask
that the land in suit be exempted from pai*tition, and also
perhaps when they ask that their right of nser of the
whole of it be confirmed, they do raise a question of title.
I do not think this point roqnires elaboration ; and therefore
Section 168, Punjab Land Bevf une Act, at. all events does not
oust the jnrisdiction of <he Civil Coort in the present case.
But yje have slso to reckon with Section 77 (3) (i) of the
Punjab Tenancy Act, — ^**any other snit hfttween landlord and
" tenant arisinjr out of the lea^e or conditiors on which a
" tenancy is held ",— and here we must examine the two nnpublish*
ed 'rulings quoted above. The earlier case (Shib Dial's) was
decided by Roe and Reid, JJ. The case is exactly on all foors
with the present. Tliere too plaintiffp, occupancy tenants,
objected to partition of sJtamiJut hy the defendants, maWks, on
the ground that plaintiffs had right of giazirg all over the
land in suit ; and there too these rightp were not confined to
maUks and occupancy tenants, but were enjoyed by all residents
in the village. The learned Judges held that, inasmuch as
the plaintiffs » laimed the righls "as a condition attaching to
their tenancy, " the case came under clause (t) aforesaid and
so was cognizable only by a Revenue Court.
In the later case (Dasu's) the Bench consisted of Chatterji
and Anderson, J J. Again it was a dispute, upon partition, of
shcmilat between tenants and proprietors. It was laid down
that the suit was one for a Civil Court because of the question
of title involved. Section 77, Tenancy Act, was not touched
upon.
Speaking with all due respect I am constrained to express
the opinion that the dictum in Shib Dial's case is unsound. I
do not agree that the claim is made in this case^ or was made
in that case, really on the basis of tenancy ; that is, f do not
think this right of grazing accrued to these tenants because
they were tenants. It belongs to all residents in the village ;
and a man, not a tenant but merely resident in the village one
day, who became an occupancy tenant (say by inheritance) next
day, does not gain any new rights of grazing by acquiring his
new status.
And there is another fatal objection, in my opinior, to the
application of olauM (t) Ikforesaid. It applita only to tniti
'* between landlord and tenant." ^ow my feeling is that the
jarUdiction of the Civil Ooarts m coaueotioa with title to or
interest in land shoald not be deemed oasted nniess the law
it nnmiBtakably clear. Can it be said that a Boit bj all the
occnpanoy tenants m a viilagei tenants holding seYerailj nnder
a variety oi muiiks agaiLbi not cnJj ihtu c^n i&LoJoidB but
also a number ol piDpiietiib ^ith ^bcm tie piaiiiUllb have no
concern^ is a ^nit LetiKteu ^Manuioid aLd ttDanii'" 1 take
these words as mebning a buit between a Unaiud and his
tenant or a lenatit aod his iauolurd, and not a salt between a
tenant and somebody who may be a propiietor bat is not hia
landlord. Ihe present suit seems to me to be one by the
body of oconpanoy tenants against the body of village pro*
pL'itdtors as sacu.
, 1 woald hold that the soit is one for a Civil Court.
► Sifisiov Sd^l*
Novl45.
Befoi6';iMT.^Ju6tice^huttigan>jind^Mr. Justice Lai Ckand.
^MIRAN BAKHSH AND OTHEttS,— (DfifgUDiNXs),—
PET1TJ0NER6,
Verstu
AHMAD AND OTHEatt,— tPLAiMTiFJre),— KESFONDENTS. g
^Civil Revision No. 619 of 1906.
Lmitaticn-- Suit ly a nreriicntr vf a male ^ropiiettr eniitUd to
poBi€$sion ^of ancestrul lohd en ihe death of the uidow of $uih f^roi^nctor
^Limitation Act, 1877, Schedule ir, Article 141— Ptmiab Limitation Act,
1900, Article 2.
Beld, that a suit on the death of the vridow of the last male proprietor
i by a reversioner for f ossession of ancestral land alienated by the husband
of the widow is governed by Article 1*1 of the Indian Limitation Act^ lb77,
and not by ArUde Z ot llie irunjab Limitation Act^ iiiuo,
Jfetition Jor revision of the order of Captain B. 0. i^, Additional
Divisional Judge^ Jheium Divishon^ dated '^Uh October 1905.
MoDonald, for petitioners.
Qolak Nathy for respoudeuta.
The jadgment of the Court was doiivored by
hkh Chand, J.— The question of Umitation^ argued in this^ ^ih April Igot*
oase is founded on the following facts :—
The land in dispute belonged originally to one Teja who
Bold it to his son-in-law Mehr Dad, father of defendanta-
Mtitionersi for iis. 700 ou drd January 1885* It ia not exaoUf
r ^S2 ^ ir ' »3r Cl IL JtDGMENTS--Ko.ll4i. I ttcekh
ascertained when Teja died, bat after his de^th the pieseQt
plaintiffs, who are his nephews, sued the present defendants on
24th Jalj 1890 for recovery of possesdion of lands sold to their
father by Teja in 1885. Their claim was dismissed on the
ground that Teja had left a widow Massammat Jiwani, who was
then ahve, and that daring her life- time they had no right to sae
for or recover possesfiion. A suit lor a declaration instituted
shortly after to protect their reversionary interest against the
sale met a similar fate on the ground that it was harred by
limitation* Teja's widow, ^Insbammat Jiwani, died abont 1904,
and thereafter the present suit lor possession was institated on
19th May 1905. The Lower Ooui-ts have decreed the claim. The
defendants now seek id revision to btt aside the decree on the
sole ground that the suit is barred by limitation under Act XV
of 1877, as well as under the special Law, Punjab Limitation
Act Wo. I of 1900. It is argued that the suit is barred by
limitation under the genei-al Act, as it was institated beyond
twelve years from the date of Teja's death, and that if the
^ special Act was held applicable owing to death of Jiwani,
widow of Teja, in 1904, then the buit was barred as no declaratory
decree had been obtained, and the suit was institated more than
twelve years after the date of delivery of possession by leja to
defendants' father under the sale.
We are anable to accept the validity or soundness of either
of these contentions. It appears to us that the suit is not barred
under the general law of limitation. Article 144 applies only in
case no other article be held applicable, to a suit tor possession
of immovable property.
A suit by a Hindu or Muhammadan entitled to the posses*
sion of immovable property on the death of a Hindu or
Muhammadan female is specially provided for by Article 14)L
* The present suit institated shortly after Massammat Jiwani's
death in 1904 is therefore amply within time under Article
141. The qaestion is whether the special Punjab Act Wo. I of
1900 is applicable to the case and bars the suit. {Section 2 of
the Act makes the Act applicable to every sait of any
description specified in the schedule annexed to the Act, and
provides for a dismissal of such suit if instituted after the
period of limitation prescribed therefor in the same schedule.
Clause 1 of the schedule is obviously inapplicable to a suit for
possessioni and the question therefore is whether a suit of this
nature talis within the purview of clause 2 of the schedule.
Clause 2 of the schedule is not expressly worded so as to
ioolode a suit of the desaiption contained in Article 141 of tb^
DiCR. 1907. J CIVIL JUDOMBNTS-Ko. 14K. 688
general Limitation Aot. It rolates to '^ a snit hj tTie beira of a male
** propiieior poveiucd bj tie Cnetrmary L«iw rf tbe Punjab to
** recover popfsesfiioD of ancestral land alienated hy snob
" proprietor dnrirg bis life-time. " As obeerved in Mitra's Law
of Limitation at page 222 : " Asa general rule the langfiasT'^ of
"an Act (speoiallj if it is a modern Aot.) sboald be striotly
" oonstmed. Tbis mle is of ooa»Ne aoolioable to 8tatat.e« of
" limitation wbicb being restrictive of tbe ordinary rigbt to
" take legal proceedings are so far disabling Acts. Before su'^h a
" law is applied to any individual CAse it most be clearly sbo^n
" to oome witbin some specific role enacted by the law. Where
" tbe law specifies the particular oases for wbicb a partionlar
" period of limitation is provided, it ougbt not to be int-ernreted
" so as to include cases not witbin tbe strict meaning of tb^
** words used. Where tbe law does not unequivocally and in
" precise language bar tbe prooeedings, it is oonstmed in favour
" of tbe rigbt to proceed. "
Tbe matter is not altoeether free from difficulty, but after
due consideration we are cf opinion that the clause in question
cannot be interpreted so ns to include a esse where tbe snit for
possession is instituted on deatb of the widow of tbe male
proprietor who bad alienated the property and was unmaintain-
able during tbe life-time of snob widow, she being incompetent
to sue to set sside the alien stmn. Pncb cases apparently fall
under Article 141, Act XV of 1877, and if it were intended to
overrule tbe provisions of that article, tbe lansrnaflre would
bave been more express and explicit. Section 2 of tbe Punjab
Aoi no doubt says ; ^ Notwithstanding anytbing to tbe oontrary
" in tbe second schedule of tbe same Act contained, " but Ae
operation of tbe section is expressly restricted to suits of tbe
deeoription specified in tbe scbedule annexed to tbe Aot, and if
a case does not by clear language fall witbin tbe purview of
such scbedule, tbe provisions of tbe general Act would continue
to be applieable. T>e c»Fe rorterr»pla ted under clause (2) of tbe
scbedule wns evidertly a case wbere tbe perpon suing for
possession was entitled to cbircf to tbe alien-^tion and to recover
possession of tbe propeHv alienated on death of the alienor.
This is rendered evident by the second clause in tbe third
column wbicb prescribes twelve years from the date of deatb
of the alienor in caqe a declaratory decree baa been obtained.
It could not pt>8^ibly bave been intended that if a person is not
entitled to sue for possession owing to intervention of a widow^s
estatCi still bis suit for poEsession would be baned if not institnt-
td nithin i^ehe jtaia Iicmlhedbie ci ctaUi cl tL€ &l:(£cr»
6d4 CIVIL JUDGMBKU-Ka 148. ' [ Ebcobd
although be bad obtained a declaratory decree and waa willing
to sue at once on tbe alienor'a death. If be did sue, bis snit
would be dismipsed afi it was dipmiesed in tbis caee on tbe
ground tbat be wap not enfitUd to pne for pospepsion ap long as
tbe widow of tbe alienor was alive. We dn not consider tbat
olanse (2) was intended to cover a case wbicb would lead to
anoh mflnifest injantioe and absurdity.
In pncb esses it is necessary to deviate a Ifttle from
tbe literal meaning of tb#> words and ont of respect to tbe
Legislfttiire pnt a ressonable eonstrnction npon tbem. Mitra's
Limitation, paire 218:
" But wbere a litersl construction would lead to an
** absurdity or woul^ necessarily cres^e difficulties and injuatioe,
*' tbe Legislature could not be taken to bave intended or
*' coHtemplated sucb a result.** Mitra*s footnote, page 219.
Beading tben clause (2) tp a wbole witb tbe provision
contained in tbe tbird column for commencement of time,
and looking to tbe ppvern^ noop*^ snd intention of tbe Act^
we sre of opirion tbst it wns not intended to include a
case of tbe nsture under consideration. It is not directly
referred to in explicit termp, ard tbe lanfiruage being so far
ambiguous mupt be construed in favour of tbe rigbt to
proceed* Tbe natural interpretation of tbe words " suit
** by~ tbe beir of a r^ale proprietor to recover possespion of
•* ancestral land alienated bv sucb proprietor ** would be
to apply tbem to a person on whom tbe inheritance devolved
on death of tbe alienor and who was competent to object
to tbe alienation. Tbe view we take does not in any
manner contravene tbe sutbcrity of these cases, wbere a
remote male collateral is held barred owing to inaction of
a nearer beir wbo was competent to object, but did not
sue in time for possession by setting aside tbe alienation.
Snob cases stand on a different footing altogether and would
be barred under tbe piovisions of either Act, Article 141
being altogether inajrplicable. "We, therefore, hold tbat tbe
suit is not barred under Act XV of 1877 and tbat the
Punjab Limiietion Aci I of 1 900 is not she wn to be applicable
to the case and therefore does not bar tbe claim. Tbis
was tbe sole poin*; urged in the arq^ament, tbe other grounds
on the mwfe!^ o^ the oasB haviaT been abandoned at tbe
first, bearing. We, therefore, dismiss the applioation for
revision witb costs.
DiCR. 1907. ]
OIYIL JUDGUBNTi-Na 117.
685
No. 146.
Before Mr. Justice Kensington^
CAMERON AND ANOTHER,— (Di?ihdant8),—APPBLLAN1S,
Veraua
BCLAKI MAL,-(PLAiHTiFf),— RESPONDENT.
Civil Appeal No. 708 of 1906.
ExeewHon of d§erB§^Order rejecting application for itiy of €Meution-^
Afp$al^Oivil Procedure Code, 1882, Section 545.
Held, ihat an order under Section 545 of the Code of OivH Procedure
refusing to stay execution of a decree is not appealable.
Hamchandra Kastur Ohand v. Balmokand Ohaturhhujl(^) cited.
Miscellaneous first appeal from the order of F. T. Discon^ Eequire^
Divisional Judge^ Lahore Division, dated Sth June 1906.
The jadgment of the learned Jadge was aa follows :—
KiNSiNOTON, J. — No one appears to snpport the appeal.
The question whether an appeal lies from an order under
Section 545, Civil Prooednre Code*, refusing to staj execution,
has been considered in various rulings quoted under the
section in Rampini's edition of the Code. Bamchandra
Kastur Ohand v. Balmokand Ohaturbhuj (') is the latest decision
on the point and the one which commends itself to me.
Holding that no appeal lies I mnst set aside the interim
order' of 23rd June 1906 and dismiss the appeal.
Appeal dismissed*
]
Appblutx Sidr.
1th Novr. 1906.
No* 147.
Before Mr. Justice Beid.
N ATHU,— (DiMHDANT),— PBTITIONBR,
Versus
AMIR CHAND,—(Pi^NTiFf),— RESPONDENT.
Civil Revision No. 1352 of 1907.
Joint Hindu family—Suit agaimt a member of— Death of defendant
pending euit— Decree against son ae legal r«pre»entative— Right of eon to
question the legality of the debt covered by the decree in execntion proceedings.
Held, that the son of a member of a joint Hindu fanuly who had on the
death of his father been impleaded in a suit lor the recovery of a debt due
Bbtisior 8m.
{^)j,L.J^fUXBow^lU
686 OITIL JUDOMBKTS-No. 147. [ Bmm3
from tlie deceased as his 1<^1 representatiTe ig entitled in execution
proceedings to qneMion i^e le^alify of (he deVt in respect of which the
decree sought to he executed was passed.
Amar Chandra Kundu v. Sehah Chand Chorcdhry ( ») referred to.
Petition for revision of the order r/ S. W. Gracey, Esquire, THvitumal
Judge, An/vritsar THvision, dated 26th May 1907.
8nkh Dial, for petitioner.
Shiv NaraiD, for respondent.
The jodgment of the learned Jndge was as follows :—
29th July 1507. Reid, J:— The petitioner wbs bronght on to the record
of the snit as legal representative of his deceased father,
and the Court held that the qnestion of the allied immoral
nature of the mortgage in lespect of which rent was claimed
could not be considered in that suit
In execution immovable property* alleged to be joint
family property, has been attached, and the Lower Appellate
Court has held that—" the discussion as to the immorality
"of the original mortgage debts is superfluous."
Amar Ohandra Kundu v. Selah Ghand Ohowdhry (*) is
authority for the contrary view. The majority of the Full Bench
held that, when, on the death of a member of a joint Hitakshara
family, against whom a decree for money has been passed, his son
is brought on the record as his legal representative, the question
of the liability of the ancestral property, which the son
acquires by saryivorship, for the debt covered by the decree
may be determined in the execution proceedings and a suit
is not necessary.
In my opinion the fact that here the son was impleaded
as legal representative before decree does not make the law
applicable to the two cases distinguishable. The Court which
passed the decree treated the son as the legal representative
of his father and as above stated declined to consider
questions which did not arise in the snit against the father.
The Lower Appellate Conrt should have decided the
qutt»tion of liability raised by the son incladir^g the quef^tion
whether the property attached was joint family property and
whether the decree was based on immoral debte and
consequently not executable against the said property.
(')nOale^W.N.,m,F.B.
ttaci. 1907.1 ^_ eiVtL JUT>GlfBKT8-TJo. 148. 687"
Under Seofion 70 (!) (a) of the Oourte Act I set aside
the order of the Lower Appellate Court and remand the
appeal for dispoeal. Costs of this Court to be costs in
the cause.
Application allowed*
No. 148.
Befo re tir William' Clarh, Kt., Chief Judge
and Mr. Justice Beid.
SAEIAN AND COMPANY,— APPELLANTS,
Versus ^Apnuin Bam.
BASHR8HAE NATH,— EESPONDBNT.
Ciyil Appeal No. 688 of J 906.
IfUereet^Vmdor and pwrchoi^r^ Furchaaer bound to pay %nt€r$$t en
purcha8e»fnon€y withtUld by him,
B«id, that a purchaser at a sale in insolvencj proceedings of immovable
property who is put into possession and fails to pay the purchase-money,
is liable to pay interest to the vendor on the amount unpaid up to date of
payment,
Kanys LaU Das V. Bhama 0. DoMn (^; followed.
Miscellaneous first appeal Jfom the order of T. P. EUis, Esquire,
District Judge, Delhi, dated 1st June 1906.
Mubammad Sbafi'and Ram Bhaj Datta, for appellant^.
Shadi Lai and Wasir Singh, for respondent
The judgment of the Court was delivered by
BiiD, J. — At the hearing Mr. Shadi Lai, for the Liquidator, ij^fj^ j^jy 1907.
contested the right of counsel for the respondents to appear
oontending that they had not been instructed by an anthorised
person. The objection was oYerruled, as it appeared that
counsel were instructed in pursuance of the resolution of a
meeting of Saran and Company with Bamaunj Dial of Dial and
Company, in the chair. A further objection that the order
ot the District Court was not a iinal order and was therefore
not appealable was also overruled. It is true that the order
appealed did uot fix the rate or amount of iuieiebt payable, but
it atcided the important question 6t liability to pay interest
ana the appellants were, in our opinion, entitled to come up on
r •— _^ — .
(>)l.Ir.B.,J[XiCalc^666. ^
^ bVnh JUDGHBNTS— Sfo. ii6 ItiGDBd
appeal at onoe, without awaiting the decision of the rate or
amoant of interest. A deciHiuo in iriioir favour would obviate the
necessitj of a decisioa of the rate or amonut. i'be order tinallj
decidedi as tar as ttie Uuart below was coiicerued, that interest was
payable, and ob?iousJj affected the iigbts ot the parties. &nch an
order passed under becuon :644i ot tUe Code ot iJivu i^rooedure
would be appealable, and oectiuu Xb^ of tbe Indian Uompanies Act
gives an appeal* 'iLu bibt point aigued toi iLe appeliitnts is
tnat iiiu pubtpont^nient ot payment ot tlie puichase-money
wa^^tbi; iibuit ui nn uxxangcnibni bctivfceu baian ana Oompanjy
on unu blue, ana tht Lyistiict juugu anu taqaiuaiuj , uu the otn«r|
and thttt tne X^ibUict «» uag«», au vunaoi-, inux nut jui-isdicuou to
pubb an oiuei' bauaitug the puicnabers with interest. Counsel
tor the appellants. ciu»u no autnoiitjr tor hoioing that the
ijisU'ict, (luu^t; acUu lu fa. miLibwciiai, uutin a judicial capacitji
when pasb^n^ oiuci-b in uonncctiun witu thu terms of the sale,
and we see no rtMsun tor holding that the District
Judge had not juribdiction to pass an order tor payment of
interest. Whether such oidei* is jubtitied is another matter.
On the 28th August 1^01 the District Judge passed the
following Oider:^— '* Jjjxtension ut Ume lur payiheut ot saie-money
** atter hearing the parties about my proposal of the 27tli of
** July Inland taking tneir written representation into oon-
*' eideiation 1 am ot opinion that the purchasers be given
'* tiUiO lo pa^ the ^uichbbe-mo^ey until the point of lien is
** uuin.biti^ aLd tLiiiti^ uibjpubto ol, with cnly this safeguard
** 10 Lii/Uct ii^e uititbi oi iht bLaiehcIdeib and unsecured
** vituiioib, LLat the puichasers be given over possession of
*' the pieinibtb, u:a(,hineiy, etc«, of the Jamna Mills (Jompanyi
** iiiiniitu, ai once, ihai thej thouiu agite that m case ot tlie
** |oint ot hiii Iting loULd utally or pariially agamat the
** lien-holders and the purchasers being called on to deposit
** the purosase-money or any portion ot it, and its default,— -this
•• sale should be consideiea as cancelled and, in tne resale ordered,
»♦ the machinery of the mills purcoased by them or some of
"them, along with otners from tne iMatioiial ii«tnic, whether
•• fitted or not, with all the improve men Ui, additions, e to., mads
*• by them during the inieival, would be sold ah>iig with the
»' pitteiit tffects of, the (jompany. and the whole proceeds up to
" hs. iJiSjOOi/ "r C^,i.O,UOO> would go to pay the shaiehulders and
'♦^unbttuitd citaiioib, oi any ol them, as tbe case may be,
'^••accoioing lo il^e law, alter deducting the amount of the
«* iitn aiiowtd »n ^sit il any, and the balance if any, going to
«» the porohasersf
Dice. 1907. ] CIVIL JUDGMENTS— No. l48. ggg
** This order would he carried out on the Slst of Angast
" if the porchasera would bring the purchasers of the machinery
*' other than themseWes to agree to these arrangements as
" ganrantees and have the maohinery freed from any lion or
'' claim of the Bank, otherwise the order giving extension to
*' dep)sit the purchase- monsy will stand as nil, and the eamest-
*' m)ney baiug forfeitei, stepj wjuld be taken to resell the
" property.
" Further, io the case of the purchasers ac^reding to these
*' arrangemeuts they would pay to the Liquidator the money,
'' Rs. 2,000 odd paid, spent in erecting temporary shade on the
" roof, etc."
Oonnsel for the appellants contended that under Section
647 of the Code an order of liquidation is a decree and cited—
In the matter of the West Hopetown Tea Oompany^ Limited^ (*)
in which it wa? held that Section 25 read with Section 647 of
the Code of Civil Procedure, empowered the High Court to
transfer to it«elf proceedings in the windingr up of a Company
under the Companies Act. Than Singh v. Kastm Alt (^), in which
it was held that the auction purchaser's title vested in him on
the dat« of confirmation of sale, and that delay in obtaining a
certificate of sale did not affect the Testing of title.
Bura V. Mailia Shah ('), in which it was held that interest
should not be awarded as damages in a suit for the amount due
on a balance struck where no express or implied agreement to
pay interest and no usage of such payment had been established
and no written notice 'that interest would be claimed had been
served on the debtor. Sttul Per shad v. Monohur Das (^}, in
which it was held that an agent retaining his principal's money,
which he had not been required to pay, should not ordinarily be
required to pay interest, but that, if his conduct had been
fraudulent, he should be charged with interest. Kxsara Hau
V. Oitpatt Dikshatulu (*), in which it was held that, in the
absence of a demand in writinfir interest up to date of suit '
cannot be awarded upon auocess, not payable undpr a written
instrument of which payment has been illegally delayed.
Counsel for the respondents cited pages 2, 3, 4, 10 and II
of the paper book in F. A. 423 of 1902 ; the proceedtnfirA
of an extraordinary general meeting of the appellant Company's
shareholders of the 27th April 1902 ; a notice, dated June 16th,
(») J. L, A, 11 AU., 180. (•) 104 P. U,, 1901
,.. ^^ ^ ^ ,«^^ . ^ . .-, — — ... — — _ __
'(•)lllad,a
(•) 92 p. B., 1893.; 5 •■■-' "~ (•) 28 TT, fi., 826.
()90 ^i^^ judgments-No. 148. [bboosb
1907, from conQnel for Dial and 0<nnpaiiy to tbe Liquidator.
Section 55 (4) (b) and Section 57 (o) ofthe Transfer of
Property Act, and Kanye LaU Das v. 8hama 0. Dawn i^%
in whicli it was held tbat the practice on the original
side of the Oonrt was that a pnrohaser of property at a
BegiRtrar's sale should pay interest as a matter of oonrse,
if ont of time in paying into Oonrt the balance of the
pnrohase-money.
The conditions of sale (pas^e 2 of the paper book in
P. A. 4M of 1902) provide that Rq. 10,000 will be paid to
the Liquidator, as earnest-money, at the fall of the hammer ;
that the balance will be paid to the Liquidator within one
month of sanction of sale by the District Judge ; and that,
on failure so to pay the balance, the earnest-money will
be forfeited.
On the 28th M^rch 1901 fpaee 3 of the paper bnok) the
Directors of Saran and OompHUv wrote t^ the Liquidator
asking him to sanction an arrangement entered into |)etween
the purchasers and the lien-holders, allowingr the purchasers
to pay by receipts from the lien-holders, the purchase-
money being likely to come to a large amount and the
purchasers not possessing the amount in ready cash.
On the 1st April 1901 (pnf^e 4 of the paper hook) the
Directors asked th«^ Liquidator to extend the time for pa3rment
for filine the receipt^! by two months, t. i»., until the
18th June 1901, the matter havine to be referred to t^e OouH,
which might possibly not decide it till the 18th April, and the
amount being large and not easy to arrange for.
On the Uth April 1901 (page 10 of paper book) the District
Judge passed an order stating that the purchase -money wa^ due
on the 19th April, the sale hwing been sanctioaed on the
19th March, declining to accept receipts of mortgagees as
payment and to defer payment until the decision of this Court
on the question of the sale, ordering deposit of the puroha«ie-
money in a Bank by the 19th April, any interest to be credited
to the purchasers, and ordflringf that the earuest-raone/ ba kept]
intact until delivery of judgment by this Court
On the I2th April (oage 11 of the paper book) the Court
moliS^^l its orlor of the lUh by extealingf the period for
payment to fifteen days after the decision of this Court. At the
extraordinary general m^N^tinor of Saran and Company of the
27th April 1902, it was resolved that Bs. 7i per cent per
(OI.Xi..i^;XXr.CaJc^666.
[biOB. 1907. ] OIVIL JUDGMiBNTS— No. U8. ^^1
annum be paid to the lien-bolders on the nnpaid pnrchase-
monej. * .
The notice of the 16th Jnne 1907 is from the legal adviser
of some of the lien-holders. Dial and Company, to the Liquidator,
intimating that his clients had given Saran and Company notice
of sait for recovery of interest, relying, among other matters,
on the resolntioil of the meeting of 8aran and Company above
cited.
Section 55 (4) (6) of the] Transfer of Property Act provides
that where the ownership of the property has passed to the
buyer before payment of the whole of the purchase-money,
the seller is entitled to a charge upon the property in the hands
of the buyer for the amount] of the purchase-money, or any
part thereof, remaining^ unpaid and for interest thereon.
Section 57 (a) of the Act was cited as indicating that, in
all cases of sale of encumbered immovable properij by a Court
interest may be awarded on purchase-money remaining unpaid
after the date fixed for payment.
The authorities c^'ted for the appellants on the question of
payment of interest do not help them, inasmuch as they do not
deal with sales of immovable property. The evidence on the
record indicates that the delay in payment of the purchase
money was caused in the first instance by the appellants'
applications for postponement and by indulgence granted
to them in consequence of the possibility that the sale
to them would be cancelled. Although the Transfer of Property
Act does not apply to this Province the rules cited from it
are equitable. The fact that a purchaser's title has vested
is no excuse for delay in payment of purchase-money, and
in Than Singh's case (i) the purohase-money appears to have
As remarked by the Court below the appellants have
had the use of money due to others for more than five
years and some, at any rate, of those entitled to the money
have raised money, for which they have to pay interesti
on their liens. The Interest Act does not affect the point
under consideration and was not cited for the respondent,
but under the order of the I2tli April 1901, which has
not been shown to have been set aside, speedy paymec^t
was contemplated and it cannot be contended that the mere
failure to enforce payment cancels the liability to pay
(') to p. B., 189tt.
59^ CiViL JDDQMBNTS— Na i4d. t fe»«>»>>
interest, nnH, a<^ already stated, the failure to enforce payment
"Was the reRnIt of indnlgence shewn to the appellants to
aroid hardsbips iu the event of the sale to them being ^et
aside. No equitable groand for allowing them the use of the
pix)perty without payment of interest for the period during
which the purcha?e-raone^ was unpaid has been estabhsbed.
The appeal fails and is di^misFed with costs.
Appeal dismissed.
No. 149.
Before Mr. Justice Bolertson and Mr. Justice Lai Chand.
, BEHARI LAL AND OTHEES,— (Plaintiffb),-APPELLAKTS,
iVersiM
RAM CHAND AND OTHERS,- (Dkibkdahts),—
RESPONDENTS.
Civil Appeal No. 825 of 1902.
Parties-' Joint ^ Eindu famHy^Suit by the managing member for debt
due to the family ~- Objection as to non-joinder-^ Joinder of other members
after period of limitation^ Civil Procedure Code, 1882, Section 27.
A suit was brought by the managing members of a joint Hindu
family in the name ol their firm for a debt due to the ancestral business.
Objection being taken en the giouLd of DonjciDder of other members of the
family, several of whom were minors, the plaintif s at once admitted their
mistake and the members so omitted applied at once to be joined as plaintifis.
Heldf that all the members beiug comprised in the designation of the
firm, the omission should have been regarded as due to a bond fide mistake
and that under such circumstances the Court was bound to ^add, under
Section 27 of the Civil Piocedure Code, tbeclhtr Ufnleis of the family
as plaintif s.
In cases T?here action is taken under Section ^7 the period of limitation
counts from the date T^hen the plaint is fist presented to the Courts
Kastur Chand Bhiravdas v. Bagarmal Shriram (*) sndSubodini Debt
Y, Cwnar Oanoda Kant Boy (•) cited.
First appeal from the decree of T. t. Ellis^ Esquire^ JJiiirict Judgs^
Lelhi^ dated ibth July 1902.
Mohammad Shafi, Shadi Lai, and Lajpat Rai, for appellants.
Qnrcharan Singh, for respondents.
The judgment of the Court was delivered by
2G^/t October 1906. Robertson, J.— The facts are fully given in tho judgment
of the first Court.
The case was instituted on 19tli October by Behari Lai and
Shcodit Ram, sons of Pali Ram, and Kadur Bakhsh, son of
<*) I. L. 18., XFil Bow., 418. O I. L. R,, X/FCaic.,400.
Dbce. 1907. ] CIVIL JUDQliBNTS— No. 149.
GbRsehAXD DflF, ]>fcj lictcrf- of <Le fiim of Pali B«in ai d Bebari
Lai, agHiDst Rbid Cband, Gopal hfabai, pon of Bam Cband,
Monsbi Lai, minor, son of Ham Cband, Karain DaH, Kari»iDgb
Dus hud Radhe Mob^D. Kaiaiu Das acd bie 2 boub, defendants
5 and 6, appeared at a bearing on 15tb November 1899, but Ram
Cband and Gopal Sabai did not appear and ex-^rte proceedings
-were taken again^^t tbcm und Ram Cband's minor son.
Narain Das pnt in certain pleas but tec k no objection on tbe
ground of non-joinder.
Yarioos issDes i/veie framed, and tLere weie manjf hearings.
Ram Cbai'd was sonimoned ns u wituibE and was so examined
on 23id Kovembti 1£C0, and be tbtn ajpliid to J ave tbt ex-j^arte
proceedings againbt bim set C'side ; couuEtl for plaintiffs agreed
to this on payment of costs. Ram Cband then put in a plea
tbat tbe plaintiffs wtrt Only bcme mimleis of a joint Hind a
family and could not sue v\ it boat joiuiig tbe otber members
of tbe family. Tbe plaintiffs at once admitted this fact and
tbe otber nenibeis of tbe it«mily applied un 6th April 1901 to
be joined 8 s phiiiitiffs. This was an application which should
obviously have been gi anted at once Jeavjug the effect of such
addition to be decided tbeitaltti. But the Lower Court, for
rc-asons which we cuLfets cuifeilves quite onabie to even under-
stand, refused this petition and d)8mit>8id the kuit remarking
in his judgment —
** 1 am asked to pioceed under Section 32, but it appears
" tome that tbe meaning of tbat section is to allow the Court
** to implead fiefeb plaintiff's only when it is necessary to enable
*' the Coutt to decide necessaiy questions common to tbe parties
*' and to third paities, and not merely questions between the
'* parties to tbe suit. It is not intended to cover a case where
" the plaintiffs knowing that they weie the only co-promissoiB
*' have failed to add other promissors/'
No authority is quoted for the proposition and the words
of Section 32 are ** to enable the Court effectually to adjudicate
** and settle all the questions involved in the suit ''
But we do not propose to discuss this question or the other
questions raised or discussed any further as we consider that
tbe case oomes within the purview of Section 27, Civil Procedure
Code.
The suit in this case was clearly a suit by the firm of
Pali Ram and Bebari Lai, and it is not seriously contended
tbat any other member of the family except those named
in the plaint have any share in its management. The suit
was finally launched^ the defendants knew exactly what they
^§4 OVhh JUDGMENTS— No. 150. L Btcoed
had to meet, and all that can be said is that the deBoription
of the members of the firm givea in the plaint was in-
complete. There is no donbt that the omission of the names
of the other members of the family, eeyeral of them minors,
was dne to a bond fide mistake in the belief that such
addition was not necessary. Of the varioDS mliogs quoted
to ns, viz,, Owruvayya y. DaitcUraya (i), Shirekuli Timjo^
Hegade v. Ajjihal Narcuhtno Eegade (•), Pragt Lai v. MaacwM (•),
Kastwr Ohand Bhiravdas y. Sagarmal Shriram (*), Labhu Bam
V. Kanshi Bam (»), Moti v. Sayad 4hmad 8hafi{%BaUan
Ohand v. Bam Parshad (^)^ Moian Malv. Kirpa MalO^ Badri
Das V. Jawala Pershad (•), Dwarka Nath Miiter y. Tara
Prosunna Boy (^°), Bamsehuk v. Bam Lai Koondoo 0*) and
Oopal Bass AgrawaUah v. Budree Doss Sureka (^*)^ which we
haye coDsulted, that in Kastur Ohand Bhiravdas y. 6agarmal
Shriram (^) is most in point and sapports the view taken aboye.
No question of limitation arises in regard to names added
under Section 27, Civil Procedure Code ; the peri9d of limitation
counts from the date when tbe suit was originally instituted —
Subodini DM Y. Gumar Oanoda Kant Boy (^'), and KuMkur
Ohand Bhtravdaa y. Sagarmal Shriram {*). There are other
points upon which much might be said for the appellants' con-
tentions, but as we are clear that Section 27 covers the case we
accept tbe appeal and remand the case under Section 562, Civil
Procedure Code, with the direction that the remaining members
of the plaintifiEs' joint family be added as plaintiffs under Section
27, Civil Procedure Cede, and that the case be now heard on its
merits. Stamp on appeal will be refunded. Costs to be costa
in the cause. Appeal allowed.
No. 150.
Before Mr. Jystice Rattigan and Mr. Justice^ Shah Din.
SOHAN LAL AMD OTHERS,— (DEFRin)AMTs),—APPELLA»TS,
AtnUATMBOOL / V^^
[ LABHU RAM,— (Plaintiii),— KBSPONDBNT.
Civil Appeal No. 540 of 1907.
Bindu Law^Alienatiou'^Oompetency of father over self-aequisitum^
Joint property — Validity of a teetamentary disposition of his share by a
fnember of joint Bindu family — Eject of partition by testator before death.
Held, that a Hindu father is competent to dispose of all his self-acquiied
property at pleasure and his sons cannot dispute the disposition even
thou£^ it he in favour of a stranger.
(!) L:L. B., XXVllI Bom., 11. V)ii9P. B., 1906.
(•)./. L. B., XV Bom,, 297. (•) 79 P. B, 1906.
. L. R., YU AU., 284. (•) 86 P. R., 1891
L. a, XFIi Bom,, 413. (»o) 1. L. B„ XVII
' P. a, 1905. h » 1 1. L. B., VI OaU„ 815.
•) 1. L. a, XVII Bom,, 413. (»o) 1. L. B„ XVII Oale,, 16a
(•) 67 P. B., 1905. h ») i. L. B., VI OaU„ 815.
(•) 29 P. a, 1896. (") 1. L. B., IXXIII Ooic, «67,
i^^}l.L.B^XIVO<dc.,M>.
OiCB. 1907. ] CIVIL JUDGMENTS— No, 160. 695
B€ld, ttUo, that a testamentary disposition of hia share of the joint ^
property by a member of an undiWded family would not be invalid if the
Interest of the testator had been separated off by means of a partition
before his death.
Balwant 8ing^ v. Bani Eishori ( •) and BanJce Rai v. Madho Bam (*) cited.
Nanah Ohand y. Mus^mmat Dayan (*) and Madho Parshad ▼. Mehrhan
Singh {*) distingoished.
Further appecd from t7^ decree of Captain A, A. Irvine^
Divisional Judge, Amritsar Dtvision, dated 14ith Fehrwiry 19d7.
Shelvertoo, for appellants.
The jndgment of the Oonrt was delivered by
Shah Dm, J.— Labbn Ram, respondent, is absent bnt lie has ilth July 1907.
been served, and tbe case can therefore proceed.
The facts are stated in sufficient detail in tbe jodf^ments
of the Lower Conrts and need not be recapitnlated. The first
point raised by Mr. Rbelverton in snpport of bis appeal was
that, as thn jorisdiotional valne of tbe snit was over Rs. 5,000,
tbe Lower Appellate Coort had no jurisdiction to bear the appeal.
In the Lower Appellate Oonrt, however, the present appellants
themselves stated the valne of the snit to be Rs. 5,^00, and
it was the plaintiff -respondent who, it seems, raised the objection
that that valne was incorrect, and that the Lower Appellate
Oonrt had no jarisdictinn to lie\r the appeal. The Divisional
Jnd^e found that in the plaint the value of tbe suit bad originallj
been entered as Rs. 5,000, and th t that fi^re had subsequently
been tampered with, so as to alter the value to Rs. 5,100. Be
that however, as it may, Mr. Shelverton's clients themselves
appealed to the Divisional Oonrt, and as the under- valuation
of tbe appeal has not prejudicially affected the decision of the
case on the merits, Section 11 of the Suits Valuation Act
would seem to apply to the objection raised before us, and
we, therefore, overrule it.
The second point pressed upf>n u^ by the appellants' counsel,
and really the most material point which arises in the case,
was that the will in diflpufce which was executed by the plaintiCTs
father on Sist May 1901, and which the plaintiff seeks to have
declared invalid and iupffectual, so far as his rights in his
.father's property are conoomed, ww not invalid under Hindu
Law, and that the pUintifTs suit has been decreed on erroneous
grounds. After hearinfif Mr. Shelverton in support of his
contention and consulting^ the authorities on which the con-
current decision of the Oourts below on Mns point is based we
think that this appeal must snoc^^d.
<>)168P.B«1863. C)I.^I^Xniiask,,l«,
696 CAVIL judgments-No. iso. [ rioobd
The first qnesiion wbiob reqoireg determination and which
has a very material bearin^^ npon the question of the validity
or invalidity of the will in di«pnte is, whether the property
covered by the will was or wss not the ancestral property
of plaintiff*;^ father, Rara. On this part of the case the District
Jadg^e has foand against the plaintitf, an I all that tWe Lovrer
Appellate Conrt says in this connection is that, ^' it is very
" donbtfnl whether the property did not aocrne out of &
"DQclensof ancestral funds *'~a finding very far from being
definitely and explicitly in plaintiff's favonr on the first issae
as framed by the District Jndge on the pleadings of the parties.
We have looked into the evidence on this point, and we think
that npon the materials before ns, we have no option bnt to
concur with the District Judge in holding that the property
dealt with by the will is not proved to be Bura's ancestral
property. The plaintifTs cousin Ganesh Das himself has been
examined as a witness, and even he is unable to state with
reasonable certainty whether any, and if so what, property
was left by Radha Kishen. We are constrained, therefore, to
find against the plaintiff on this point.
If then the property in question was not the ancestral
property of Bura, the latter was fmmd facie perfectly com-
petent to alienate it in any way ho chose to the prejudice of
the plaintiff's right of Pucce?Rion, and the plaintiff is not entitled
under Hindu* Ii«w to control his father's power of dfspopition,
(See the decision of their Lordships of the Privy Council in
Baltoant Singh v. Bint Koshori (*))• Th it being so, the plaintiff
cannot impugn the will in question unless he can show that he baa
acquired the right to do so by reason of some special circum-
stances disclosed in this case. The Courts below think that he
has, because at the time when Bura made the will complained
of he (the testator) was a co-parcener with his nephew Oaneah
Das as a member of a joint Hindu family, and was, therefore,
(it is said) incompetent ti bequeath his own share of the joint
property. In support of this view reliance has been placed
upon the following passage in Mayne's Iltndu Law and Usage
(6th edition). Section 417 (page 637) :— " A member of an
<* undivided family cannot bequeath even his own share of the
<* joint property, because at the moment of death the right of
" survivorship is at conflict with the right by devise. Then
« the title by survivorship, being the prior title, takes pre-
" cedence to the exclusion of that by devise." In applying
the principle embodied in the,'above passage to the present oaae.
0)1. 1. R.^ XX All, 267, P.O.
Bbcb. 1907. ] OIYIL JDDGMBMTS-No. 150. 597
however, the Coarts below have overlooked the fact, which is
mentioDed in both the jadgmente, that in March 1902 before the
death of Bnra a partition of (he joint property had been
effected between him and Gaoeeh Das, from which it follows ■
that at the time l>f his death the properfcj willed away by Bnra
(tloDgh at the time of the execution of. the will it had been
held by him jointly with his nephew) was his i^paraU projmiyf
and could not, and did not, vest in Oanesha by right of
soryivorship, which right comes into operation only at the
moment o a oo>parcener*s demise and not before. As soon as the
decision of the joint property was made in March 1902, the
co-parcenery as regards the family property ceased to exist, and
thereafter each of the co-parceners became owner of his share as
separate property, cspable of dealing with it as snob nnfettered
by the prospective operation [^of the principle of sarvivorship.
"When, thetefore, Bnra died (in October 1902) Oanesha had as
regards the deceased's ptoperty " no title by snrviyorphip *'
which conld " take precedence to the exclusion of that by devise,"
and the devise, therefore, took effect, not being defeasible by any
title which the plaintiff as Bura's son could set up in his own
right. It must also be borne in mind that the will in question
was not an alienation inter vivos, such as a sale or gift, which
is intended to operate from the moment it is made, but that
it was a testamentary disposition which takes effect from the
date of the testator's death ; and therefore though at the time
of the execution of the will, Bnra was incompetent to dispose
of his own share of the joint family property, ^he bequest ^ould
not be invalid if at the time of the testator's death, when it
came into operation, the property dealt with was his separate
property and as such completely under his control.
The Courts below have also relied upon Nandk Ohand t.
Mussammat Dayan {^) (page 386) in support of their conclusion,
\)Xii that decision, following the ruling if the Judicial Committee
in Maaho Farshad v. Mtthfhan Singh (*), lays down the general
pTinciple that so long as joii.t iamilj pioperty has not been
partitioned, ** a member of the joint family cannot dispose
** of his own interest at Lis own hand and for his own purposes."
This principle is in no way contravened in a case where the
disposition takes effect after the interest of tho alienor is defined
and is separated off by means of a partitioui which interest
he can dispose of " as if it had been his acquired proper j"
(see page 887>
O) 103 ?• & 189i. {*)LL.B^ Xnu OaU^ Mp P. 0.
^{8 onrat juDOMBNn-Ko. iso. [ bicoAn
The ruling of this Goart in Banke Bat y. MeMo Bafii(^)
which is relied on by the defendftnts is, in oar opinion, in
point M showing that the will in dispute nas not in any case
Toid| bnt was simply voidable at the option of Ganesh Das«
and as the latter did not ezerci.<4e that option at the lime the
will was made,' and oonld not exercise it at the time when
the iwill came iniooperation (having separated off from Bora
before his death), the, bequest was perfectly valid and efTeotnal
so far as the plaintiff's rights of succession in his father's
property ^were concerned.
For the above reasons, we accept the appeal and dismiss
the plaintiff's suit with costs. The decree against the respon-
dent i^Bif^iie.
Appeal dUm%$9ed*
Cnisa P. B., 1888.
INDEX
OP
CIVIL CASES REPORTED IN
THIS VOLUME. 1907.
The references are to the Hfos. given to the eases in the " fiecord/*
A
ABANDONMEKT OF LAND.
Abandonment of hmdr^Suii io recover possession — Absentee — Adverse
poiseision, — Held^ that mere non-oocapatioD and Don-cnltivation of nn-
cnltnrable land for a long period does Ubi m the abAODce of a motiTO
or evidence of intention to abandon or of adverse possesBion
for the statutory period, constitnte abandonment 53
ACQUIESCENCE.
Estoppel by conduct of acquiescence*
See Estoppel ,.. •• ••• ,•• ••• ••• ••• ••• 1
ACTS.
VII of 1870— See Court Fees Act, 1870.
I of 1872— See Evidence Act, 1872.
IF o/ 1872— See Pre-emption.
„ See Punjab Laws Aci, 1872.
IX of 2872 -See Contract Act, 1872. ^
VIII of 1873— See Northern India Canal and Drainage Act, 1873.
I of 1877— See Specific Relief Act, 1877.
til of 1877— See Begistration Act, 1877.
XV of 1877— See Limitation Act, 1877.
„ See Po98€ssion.
XtV of 1882— See Civil Procedure Code, 1882.
„ See Principal and Agent.
XV III of 1884— See Punjah Courts Act, 1884*
1, See Bevisivni
INDEX OF CIVIL CASES REPORTED IN THIS VOLUME.
The references are to the Noe, given to the cases in the ** Record, *'
Ko.
AOTS-(concId,)
VII of 1687— See Succession Certificate Act, 1887.
IX of 1887— See Small Cause Courts Act, 1887..
XVI of 1887— See Occupancy Bights,
„ See Punjab Tenancy Act, 1887.
XVII of 1887— See Punjab Land Revenue Act, 1887.
IX of 1890— See Railways Act, 1890.
XX of 1891— See Punjab Municipal Act, 1891.
I of 1894— See Land Acquisition Act, 1894
I of 1900— See Punjab Limitation Act, 1900.
IV of 1900—See Punjab Descent of Jagirs Act, 1900.
Ill of 1900— See Punjab Alienation o] Land Act, 1900.
II of 1905— See Punjab Pre-emption Act, 1905.
ADOPTION.
See Custom — Adoption,
See Hindu Law^-Adoplion.
AGENT.
Agent carrying on business for parties oat of jarisdiction cannot
sae on contract entered into by him on behalf of his principal withont
special authority — Civil Procedure Code, 1882, Sections 37, 61.
See Principal and Agent ... ■ 1Q9
AQEIOULTURIST.
Liahility of fodder to attachment in execution of decree against an
agriculturist.
See Attachment , g2
ALIENATION.
See Custom — Alienation,
See Hindu Lavo-^ Alienation.
See Occupancy Bights,
1. Power of a reversioner out of possession to assign his interest after
devolution of inheritance^Bight of assignee to sue for possession.
See Assignment of Chose in Action ... ... 11
2. Alienation of ancestral property by sonless proprietor'^ Bight of
after-born reversioner to contest alienation beyond time — Legal disability.
See Limitation Act, 1877, Section 7 22
AUENATION OF LAND ACT, 1900.
See Punjab Alienation of Land Act, 1900.
INDEX OF CIVIL CASES REPORTED IN THIS VOLUME. iU
The references are to the Nos, given to the eaaea in the " Record.
No,
APOSTAOT.
See Hindu Lata ^Marriage,
APPEAL.
1. Arbitration^' Award-^Setting aside award on ground of miseondud
'^Decree on merits ^Oompetenoy of appeliate Oourt to question on appeal
the legality of the order setting aside award^-Oivil Procedure Oode^ 1882,
Section 521.
See Arbitration , ,„ 66
2. Jarisdioh'on of Chief Oonrfc to hear Civil appeals transferred by
Judicial Commissioner of North-West Frontier Province.
See Ohief Court 80
3. Decree in favour of plaintiff for a part of his daim '^Execution of
such decree by plaintiffs Subsequent appeal for remainder.
See Estoppel 31
4. Suit for possession of ghair-mnmkin land attached to a weU^Land
suit— Appeal — Punjab Tenancy Act^ 1877, Section 4 (\),—Held, that a
suit for posResBion of ghair*mumkin land outside the abadi and attached
to a well upon which hhurlis are built and bhusa is stacked is a
land suit defined in Section 4, Sub-aection (1) '^f the Punjab Tenancy
Act, 1887, and that therefore the course of appeal is to the Divisional
Court and not to the Distiict Court • 12
5. Pre emptton^-Becree in favour of pre-emptor — Payment ofpurehase*
money into Court — Withdrawal of such money by vendee ^Effect of such
withdrawal'^Right of vendee to maintain apneal on substantive right^^
Held, that in a pre-emption suit a vendee does not forfeit his le^al right
to appeal from a decree pas.?ed aorainst him or to proceed with his
appeal on substantive risfht merely beoause be has withdrawn the
purchase-money paid in Courb by the pre-emptor for his benefit ••• 16
6. Oivil Procedure Code, 1882. Sections 312, 313, 588 (16)— Confirm'
ation ff sale in execution of decree — Application to set aside sale
dismissed in default — Fresh application for same relief dismissed on
msrits '^Such orders of dhmissal not appealable, — fleW, that, where an
suction sale under a decree has been confirmed under Section 312,
Civil Procedure Code, in the absence of objection under Section 31 1,
and an application to set aside the sale has been thereafter put in
and dismissed for def'tult, and further application askinc^ (a) that
the dismissed npplication be restored to the file, or (6) that the
application be t'-ealed as a fresh application, or (c) as a petition for
review of the order dismissing the first application has been also
dismissed, no appeal against either of the orders of dismissal,
neither of which comes under Section 588 (16), Civil Procedure Code,
or is an order nnder Section 312 ..» • ••« ••• ••• 23
IND5X OP CmL OASES REPORTED IN THI8 VOLUME*
Th)e rrfersucet aretoih^ No$, givM to the ca8e$ inth$" Bee&rd, **
No.
APPEAL- (oontd.).
7. ^ Valuaium of suii^^Suii to declare an alienaium of land to Be not
hindtng after alienor* 8 deaths Value for purposes of further appeal — Pun-
job Courts Act, 1884, Section 40 (h), — Held^ that for parposes of
Section 40 (6) of the Punjab Oonrta Acf, 1884, the valae of a Buit for
a declaration that a mor^afre by a widow of agricnltnral land would
not be binding after the alienor's death, is the value of the land
oahiul|ited at thirtj times the revenue and not the amount of the
epoombrance in dispute.
Bakhu V. Jhanda (145 P. B., 1892) followed •.. ... 42
8. ^ Vahiaiion ofsuit^Suit to declare an alienation of land tohenoi
binding after alienor* s death — Value for purpose of fwrther appeal'^
Punjah Courts Act, 1884, Section 40 (6).— fleW, by the Full Bench
that for the purposes of Seotfnn 40 (b) of the Punjab Courts Act, 1884,
the value of a puit for a declaration that a sale by a male proprietor
of ancestral a^jfricultural land would not be binding after the alienor's
death, is the value of the land calculated at thirty times the revenue,
and not the amount of the consideration of the sale in dispute .., 60
9. Cowrt'fee on appeal from an order rejecting an application to file an
award in Court ~ Courts Feei Act, 1870, Schedule I, Articles 1, Vl.^Beld^
that the Court-fee f ayable upon the Memorandum of appeal against
an order rejectinj? an application under Section 626 to file an award
is Rs. 10 nnder the sixth clause of Article 17 and not an ad valorem
fee in accordance with Article 1 o? the Court-fees Act, 1870 ••• 84
10. Arbitration^ Award^Order refusing to file private award —
Appealabiliiy of the order— Civil Procedure Code, 1882, Section 626.—
Held, that an appefil lies from an order under Section 626 of the
Code of Civil Procedure, refusing to file an award made between the
parties without the intervention of a Court ... ••• — ^00
11. Appeal from an order returning plaint for amendment -^Bemand
by Appi-llate Cowrt — No appeal from such order of remand — Civil Proce-
dure Code, 1882, Seditions 662,' 588.— HeW, that there is no further
appeal from an order of remand passed under Section 662 of the Code
of Civil Procedure when such order is made by an Appellate Court
on an appeal under •Section 688 of the Code ... ... — *20
12. Appeal from an order dismissing suit jor non- appearance of pLain-
tiff^Beld.hj the Full Bench (Reid, C. J., and Chatterji, J., dissenting)
that an order diamtasin^ a suit for default of prosecution under Section
102 of the Code of Civil Procedure is not a decree as defined in
Section 2 and is not appealable.
Per Beid, C. /., and Chatterji /., contra, that an order passed under
Section 102 is a decree within the meaning of Section 2, and as such
is appealable ... ... ... ... ••• 121
13. Arbitration — Agreement to ref&r to arbitration — Application to file
such agreements-Order aUtnving agreement to be fiUd-^Bight of appeal
from such order ^Civil Procedure Code, 1882, Section 623. ^HeW, that
when a Court acting under Section 523, Civil Prooedure Code, causes an
INDEX OP CIVIL OASES REPORTED IN TfflS VOLUME.
The references are to the No$, given to the eaeea in the " Record. **
No.
APPEAL— (conoid).
agreement to refer to arbitration to be filed and passes an order of
referenoe thereon, an appeal lies from sncb order which is a " decree ''
within the meaning of that expre'^sion as defined in the Code ... 126
14. AjDpealfrom exercise of discretion — Qrounds of interference. — Held
that a Court of appeal oiifjrht not to interfere with the exercise of the
discretion of an original Court unless there is some sabstantial
grievance ... ... ... ... ... ... 129
15. Execution of decree^^Order rejecting application for stay of execu*
Hon — Appeal^ Givil Procedure Code, 1882, tSection 545. — Held^ that an
order under Section 545 of the Code of Civil Procedure refusing to
%sta7 execution of a decree is not appealable ... ... ... 146
APPEAL TO PRIVY COUNCIL.
Appeal to Privy Council — Appeal from an order of remand^ Final
decree ^CivU Procedure Code^ 1862, Section 595. — Heldy that an order
under Section 562 of the Code of Civil Procedure remanding a cnse to
be tried on meuts is not a final decree within the meaning of clause
(a) of Section 595 and therefore no appeal lies from such an crder to
the Privy Council ... ... ... ••• ... 52
A«^PELliATB COURT.
Objection to validity of notice of foreclosure taken for first time on
appeal.
See Mortgage ... ••• ••• ... ... 106
ARBITRATION.
1. Order refusing to file private award — Appealability of the order ^^
Civil Procedure Code, 1882, Section 526.
See Appeal ... ... .•• - ••• ... 100
2. Civil Procedure Code, 1882, Section 5 23 — Order allounng agreement
to refer to arbitration to be filed ^Eight of appeal from such order.
See Appeal ••• . •• ••• ••• ... 126
3. Award^JDecree on judgment in accordance with an award — Refer-
ence by guardian ad litem of a minor without leave of Court -^Admissibili-
ty of objection denying validity of reference on revision^
See Revision ... ... ••• •** ••• 4
4. Arbitration — Award^^Beceiving evidence from one side in absence of
other-^ Misconduct -^ Award set aside —Decree. on merits— Appeal — Compe-
tency of Appellate Court to qtiestion the legality of the order setting a^ide
award^Civil Procedure Code, 1882, Section 521. — Where arbitrators
held mee»in:T8 and took the evidonoe produced by one party in the
absence of the other party which was wholly unavoidable and did not
give the latter sufficient opportunity to produce hi« own evidence :
Jield, that they were j?nilty of judicial misconduct within the meaning
of Section 521 of the Civil Procedure Code, and that their award was
not valid and was rightly set aside by the Court.
vi
INDEl 0^ CIVIL OASES REPORTED IN THIS VOLUME.
The refereneea are to the Nos, given to the eases in the ** Record. "
ARBITRATION-Cooncld.).
Qti^.— Whether la a case in which there has been an order of
reference to arbitration nnder Section 508, Civil Procedare Code, and
nn award has been delivered by the arbitrators but hns been set aside
by the Coart nnder Section 521, and a decree is passed on the merits,
it is open to an Appellate Conrt on an appeal against that decree to
consider the qaestion of the legality of the order setting aside the
award r ••• ... ••• ,,, ,,, •••
6. Arbitration — Apf'lication to file a privaie award — Award eg
portion of immoveable froferty ^Registration Act^ 1877, Section 17, clause
(b) (i)— Court not competent to remit private award when defective and
indefinite— Civil Procedure Code, 1882, Section 520, 525, 626— Cowr/-
fee — Court -fee on appeal from an or^ier rejecting an application to file an
award in Court— Court-Fees Act, 18T0, Schedule J, Articles 1, 17. —
Held, that the Conrt-fee payable npon the memorandnm of appeal
against an order rejecting an application nnder Section 525 to file an
award is Bs. 10 nnder the sixth cl-inae of Article 17 and not an ad
valorem fee in accordance with Article 1 of the Conrt- Fee Act, 1870.
Held, alsOf that when an award made without the intervention of
the Conrt is on the face of it defective, determines matters not referred
to arbitration, and is so indefinite aa to be incapable of execution, the
Conrt has no power nnder Sections 525 and 526 to amend it or to remit
it for reconsideration hot mnst refuse to ^]o and enforce it.
Seinble : for the purposes of Section 525 of the Code of Civil Proce-
dnre an award of arbitrators privately appointed by the parties even
if it effects partition of joint immoveable property of over Rs. 100 in
value and is signed by the parties to signify their acceptance of the
same does not require registration and can be filed and made a rule of
Court ••• ... ••• ... ... •••
6. Arbitration^' Award— Delivery of, within the period allowed by the
Court^Civil Procedure Code, \SS2, Sections bOS, 521.— BeW, that an
award made and sign^^d within the period fixed by the Court even when
filed in Court after the expiry of that period is valid under Sections
508 and 521 of the Code of Civil Procedure.
The expression '' delivery " in Section 508 means '' making " and
not " filing in Court*' ...
ASSI3NMENT.
No.
66
84
Asdgnment^'Gonditional assignment by way of security —Bight of assighee
to su^ in his own name.— 'Where the pajee of a promissory note not
negotiable assigned it to the plaintiff as a security for a debt owing
from him to the latter until its repayment in full, held that it being
merely a conditional assignment the plaintiff was not entitled to
niaiiitain an action in his own name alone against the maker of the
promissory note for the recovery of amount due thereunder.
BurUm Brothers v. Bobertson (L, B., 1. Q. B. (1898), 765) followed 9
INDEX OP CIVIL CASES REPORTED IN THIS VOLUME. vii
Th9 reference are to the Sos, given to the cwee m the " Becord,
«« ]7i>/*/M-/7 "
No.
ASSIGNMBKT OP CHOSE IN ACTION,
9
Alienation of reversionary rights — Power of a reversioner out of posseS'
sion to assign his interest after devolution of inheritance — Bight of assignee
to sue for possession.'^ Held f thnt a reveiBioner out of possession of a
childless male proprietor caa transfer his interests to a htranger after
devolatiou of iobeiitance and the assignee is entitled to recover
possession of the property and contest the validity of the title of the
person in possession snbject to the same rules which ooald have
been enforced by tke assignor.
Jhohi Bam Y.Malik Kadir Bakhsh (12 P. B., 1894), AchalBamy.
Kazim Eusain Khan (L L. ff., XXVII AU., 271, P. 0.), Tota v. Abdulla
Khan (66 P. B., 1897), and Mouladad v. Bam Qopal (22 P. B., 1900),
reierreci xo ••• ••• ••• •*• *•• ^^^ 14
ATTACHMENT.
1. Liability of assignment of Land Revenue to attaebmeLt in
execation of decree.
See Punjab Descent of Jagirs Act, 1900, Section 8 (3) ... ... 117
2. Jurisdiction of Small Catise Court to award competisation under
Section 491, Civil Procedure Gode,f'jr an e)ro7ieous attachment of immove-
able property before judgment.
See Small Cause Court ... ... ... ... ^^
3. Attachment — Fodder^ liubility of, to attachment in execution <f :iecrce
'^Civil Procedure Code, IB82, Section 266 {n)^ Punjab Land hevcnue
Act, 1877, Section 70.— Held, that fodder required for the owner's
cattle is exempt under clanse (n) of Section 266 of the Civil Procedate
Cod*», read with Section 70 of the Punjab Land Revenue Act, 1887, from
attachment in execution of a decree against an agricnltarist.
A Civil Coart can only attach so much as will leave in the opinion
of the Collector of the District a sufficiency for the owner's cattle.
Wasil V. Muhammad Din (93 P. jK., 1904) superseded ... ... 82
B
BACK FEB.
Payment io be made coyitingent on succes — Illegal and improper
contract-- Public policy.
See Legal Practitioners ... ... ... ...61 F.B.
BURDEN OF PROOF,
See Custom — Alienation ... ... ... ..33,115
1. Even in a locality where the right of pre-emption by reason of
vicinage is admitted or is found to prevail, the burden of proof that
an owner of a honse opposite to the honse sold but separated from it
by a road or lane has a right to claim pre-emption against a vendee
who may be a mere stranger lies on the party asserting the existence
of such a custom ... ... ,,. ,„ ^^, 47
viii INDEX OP CIVIL CASES REPORTED IN THIS VOLUME.
Ihe references are to the Voe. given to the cases in the ** Record, *'
No.
BURDEN OF PROOF— (concld.).
2. The bnrijen of proof that bigb-caste Hindas, residents of cities
like Amritear, follow a partioalar caetom in dero^tion of their personal
law lie« beavilj on the person making sach an allegation.
Bama Natid v. Surgiani (LL,B., XVI All., 221), Maharaj Narain y,
Banoji (34 P. E., 1907), Daya Bam v. Sohel Singh (IIOP.B., 1906),
Chandika Bakhsh v. Muna Kanwar (J. L. jK., XXIV All , 273), Muham-
mad Hitsatn V. Sultan AH (24 P. B , 1893), and Ear Narain v. Beohi
(54 P. E., 1903), cited ... ... ... ... ,.. 99
c
CANAL AND DRAINAGE ACT, 1873.
See Northern India Ganal and Drainage ict.
CAUSE OF ACTION.
Civil Procedure Code, 18'82, Section 43 — Mortgage^ Separate covenants
for the payment of principal and interest ^Distinct causes of action —
Competency of mortgagee to institute separate suits for principal and interest
when both have fallen due — All claims 07isame cause to be included. — Held,
that when under a mortgage bond both principal and interest haTe
become dne, the mortgagee must sue for both together; otherwise he
will be debarred under Section 43 of the Code of Civil Procedure from
claiming in a subsequent suit what was not claimed in the prior suit.
The principle of Section 43 is that where several breaches of
covenants made under one contract have occurred the cause of^ action
of the various breaches merges into one and renders it obligatory
upon a plaintiff to include all claims to which he is entitled under his
contract in one action ... ••• ••# ... ••• 28
CHIEF COURT.
Chief Court - Jurisdiction of to hear Civil Appeals transferred by
Judicial Commissioner of North-West Frontier Province — Begulation VII
of 1901, Section 87 A-^Punjab Courts Act, 1884.— ITeW, by the Full
Bench that the Chief Court of the Punjab ha?, by virtue of the provi-
sions of Section 87 A of the North- West Frontier Pi-ovince Law and
Justice Regulation No. VII of 1901, as amended by Regulation I of
1906, no jurisdiction as a Court of Civil Appeal to entertain, hear
and decide any Civil appeal transferred to it for determination by the
Judicial Commissioner of the North- West Frontier Province ...50 P.B.
CHILDREN.
Presumption as to legitimacy of, bom after marriage*
See Evidence Act^ 1872, Section 112 ... ^ .«« .♦. 79
CIVIL COURT.
See Jurisdiction of Civil Court,
Power of, to decline to enforce a valid contract on m/ire assumption that
it %8 for the benefit of a person prohibited by law to enter into suck
contract.
See Contract ^ ••• t^ ••# ••• IW
Index of civil cases reported in this volume.
The reference$ are to the Noe, given to the casee in the ** Record. *
No.
CIVIL PBOOBDURB CODE, 1882.
Section 13.
See Bea judicata.
Seotion 27.
Suit by the managing meinher of a joint Hindu family for debt due to
the family — Objection as to non-joinder-- Joinder of other members after
period of limitaHon.
See Parties ... ... ••• ... ••• 149
SiCTiox 3i.
See Parties ... ... ••• ••• •.. 71
Sbotioh 87.
Person carrying on basinesA f >r parties oat of jorisdictioa cannot
be deemed a recognized agent within this seotion ... ... 109
Seotioh 43.
See Oause of Action ... ... ... ... 28
Skgtion 54.
See Limitation Acty Section 4 ... ... ,„ ... 123
SiCTIOM 102.
1. Appeal from order dismissing sudt for non-appearance of plaintiff.
See Appeal .•• ••• . ... ... ... 121
2. And Section 103 ^Mortgage-^Redemption — Suit hy nwrtgagor for
redemptinn— Dismissal of suit for defauU-^Subseawmt suit for the same
object.^Held, that a dismipsal undtr Section 102 of the Code of Civil
Pri>cedare of a sait by a mortaragor for redemption of mortgaged
property preclades the plaintiff under Seotion 103 from bringing a
fresh snit for the redemption of the same property.
Shankar Bahhshv. Daya Shanka/r (I. L. E., XV Odlc^ 422), Mam Baj
V. Ohanckoa MoZ (117 P. B., 1891), and Imdad AU v. Hurmat AH (82
P. B., 1906), referred to ... ... ... ... 4
SflCTIOH 103.
Power of Coart to restore application ^ for revision dismissed for
default.
See BevisUyth ... «•• ••• ..* ... 97
SSCTION 204.
Finding on one issue even when sufficient does not preclude a Court
from determining the other issues raised.
See Beviiion ... ••• ••• ••• ••• l?4
INDEX ^ CIVIL 0AfiE8 RfiPOBTED IN THIS VOLUMB.
The rrftr4fiot$ «r« to the No9, given to the caeee in the** Record. **
OIVIL PfiOOBDUBE OODE« J882— (oonld.).
SionoN 844. .
1. 8mt against a member of joint Hindu famtly -htath (f defendant
pending tmt^^Deoree against son as legal representa^ve ^Bight of son
to question the legality of the debt covered by the decree in exectttion
proceedings.
Bee Hindu Law ^ Joint family ... ... ... 147
2. Bight of suit-^Beoree for possession of equity of redemption
^ Pre- emptor obtodning possession of property instead of equity of
redemption - Suit for restitution of property wrongfully taken — Que^ion
relaHng to the execution, discharge or satisfaction of decree -^Discretion
of Oourt to treat plaint as an application for restitution— Citnl Procedure
Oode^ 1882, Section 244.—' ^ * paroha^ed fpo»n ' B * the eqohy of
redemption in a certain property which was previoaslj mort^raired
with posfleSBion to * C ' and then redeemed the mort^rage of * 0.* • D *
filed * A ' to enforce his right of pre-emption and got a decree for
delivery of posseHsion of eqoity of redemption, bat in execution of
his decree he some how obtained possesf^ion of the property in lien of
tig equity of redemption. * A ' theo Bled a re^rnlar snit to recover
poBseesion of the pn>perty as a mortgagee on the gronnd that * D * had
taken unlawful possesHion in exeoutioo proceedings. Therenpon the
defence <y>nteDded that the suit was barred by the prorieions of
Section 244 of the Civil Procedure Code.
JBTiUt Uial the nut wai not barred onder Section 944 of the
Code of Civil Procedure. The qaestion to be decided in this suit
did not relate to the execution, discharge or satisfactton of the
^gisal decree within the meaning 6f that Section beoaase the
^lieree in the preemption suit has and had no oonoern frith it
Hdi alio that even asanmiog that no regular suit lay the plaint
sboold be rsgarded onder the ciroamBtanoee of the case aa an
application for exeoation of decree for claiming restitution of
property wrongfully taken by * D.* ... ... ... 5
Bionon 266 (it).
Fodder required for the owner's cattle is exempt under this
clause, read with Section 70 of the Panjab Land Revenoe Act,
1887, from attachment io eieoetiou ol a decree against an
egriculturist ... ... ... «•• ••• 88
SlfTXOlSOS
Where immovable property has once been sold in execution of
a money decree, the executing Court has no aothority to allow
time to the judgment«debtor to enable htm to raise the anMOOt
of the decree by a private transfer of the property or otherwise
as provided l)y thisaection ••• ••• ••• ••• 92
INraX OF CSYIL CA8B8 ^JS^WiPJS VmYOUHa.
Th$ f^«rffic#s artUihg No$. giv$n io thg e«Mt in «fc# '* Mmordt. **
CIVIL PROOEDU^ CODE, 1882-(ooiitcL).
SSOTIOR 312.
No.
And Section 810 J, 31l.--If a sale of iinmorable propei^ in
ezeontioD of a money decree is not sefc anide eitber ander Seotton
310 A or 311, the Gonrt has do option bot to confirm' tfat' lak
as provided by Section 312 ' ... ... .., ... 98
SsonoR 331.
Execution of deore^ for possessum of irnimovabU propwty^Obihuotion
by person other than the judgment-debtor — Procedure.
oee UoswTUOtton ••• ..• .•• ••• .•• 118
SsonoN 352.
And Section Sb\^ Insolvency -^Omisrien t& frame 8ekeiule^''4jTedttor
not debarred from instituting $uit»
See Ineolvenoy ... ... ... ... ... 64
SscTiOM 368.
Death of one of several defendants^Applieotion for substitution'^
Sufficient cause for not applyit^ mthin prescribed period.
See Parties ... ... ... ... ... 113
SiCnOH462.
And Section bOS^Arbitration^^Award- Decree on judfment in
accordance with an atoard— Beference by guardian ad litem cf a minor
without leave of Court'-^ Admissibility of objection dsnfffng vahdiiy
of reference on revision.
See Bevision ... ... ••• ... ... 4
SiOTinii 508.
And Seation 52L.**An award made and sigDed witbin the period
fixed by the Court even when field in Court after the ezpiiy of
that period is Taltd.
The ezprefision '* delivery *' in this section means '* making ^ and
not *' filing in Coart." ... ... ... .»« 89
SicnoN 521.
Arbitration^ Award^Beceiving evidence from one side in aJmnee of
other— Misconduct^ Awa/rd set aside — Decree on merits— Competency
^ Appellate Court to question on appeal the legality of ike ertUr
setting aside award.
See Arbitration. ... ... ••• ... 66
SiOTiOH 523.
Agretment io refer to arbitration filed in Courts /uArd of crlitro fore
set aside as vcid^ Bight to institute regular tuit to enforce siich'aurafd}^
Beldf tL»t ^liKin ^uct^dn^B Itlcn Tucti'tiitHA M3 tl tie
iH DIDEZ OF CIVIL TASES REPORTED IN THIS VOLiniE.
Th§ rtf9rtne$$ are to the No$, givm^ to the ea$€$ in the ^^Becord, *
CIVIL PBOOBDURE CODE, 1882— (oontd.).
No.
Oode of OiTil Prooedare an award is declared to be void by the
Oonrt oocdnoting roch proceedings^ no regular suit to enforce
sooh an award will lie ... ... ... ... ]9
SionoH 525.
1. The Court-fee payable upon the memorandum of appeal against
an order rejecting an application under this section to file an iiward
is Bs. 10 under the sixth clause of Article 17.
2. For the purposes of this section an award of arbitrators
privately appointed by the parties even if it effects partition of
joint immovable property of over Bs. 100 in value and is signed
by the parties to signify their acceptance of the same does not
require vegifitration and can be filed and made a rule of Court ... 84
3. And Section 526. — When an award made without the interven-
tion of the Court is on the face of it defective, determines matters
not referred to arbitration and is so indefinite as to be incapable
of execution the Court has no power under these sections to amend
it or to remit it for reconsideration but must refuse to file and
enforce it •.. ... ... «•• ••• 84
Sionov 526.
An appeal lies from an order under this section refusing to
file an award ... ... ... ... ... 100
SionoN*
1. Oon$ent to adion (igatnH pyhlie charities^ Oourt cannot entertain
euit ashing reliefs not included in the consent.
See BigU of suit ... ... ... ... HO
2. A suit for the removal of the incumbent mahant of a dharmsala
wbo has misbehaved as mahant and misuned the funds of the
institution and for the appointment of the plaintiff in his place
falls within the scope of this section and is not maintainable
without obtaining previous sanction of the Collector to the institotioo
of such suit •#« ••• ... ... ... 78
SionoH 545.
An order under this section refusing to stay execution of a
decree is not appealable ... ... ... ••• 148
SionoN862.
And Section 588 — Appeal from an order returning plaint for
amondment^Bemand by Appellate Court— No appeal from such order
cf fema$ul.
See Appeal ••• ••• ... ••• ••• ^^
SponoH588(16).
Bt^Afpedl .ff •«• 9^ •#• ••• W
INDEX OP CIVIL CASES REPORTED IN THIS VOLUME. J^
fi ■ .
The referencM are to the So$» given to the ea$e$ m ihe " Record. "
No.
CIVIL PEOCBDDRE CODE, 1882— (conoid.).
SxcnoH 595.
See Appeal to Privy Council ... ... ... ••. 52
COMPENSATION.
1. For immovable property acquired under sfafutory powers for
public object.
See Land Acquisition Act^ 1894.
2. For improvements by vendee.
See Pre-emption ... ... ... ... ,„ 122
3. Jurisdiction of Small Cause Court to award compensation under
Section 491, Civil Procedure Code, for an erroneous attachment of
immovable property before judgment.
See Small Came Court ... ... ... ... 77
CONSEQUENTIAL RELIEF.
Suit for a dedaraHon xnuet not be diBinisded merelj because
the plaintiff being able to seek further relief baa omitted to
claim it ... ... ... ... ... ... 128
CONTRACT.
Contract^ Civil Court — Power of^ to decline to enforce a valid contract
on mere assumption thai it is for the benefit of a person prohibited
by la/w to enter into such contract — Eeld^ that a Civil Coort has
no power to decline to euforce a contract which is legal and
binding in every respect of the face of it as between the parties
on a mere assamption that in reality it is intended for the
benefit of a third person against whom a statatory prohibition
to enter into such contract ezista ... ... ... 142
CONTRACT ACT, 1872.
Section 25 (c).
Contract to pay a debt barred by limitation law.
See Limitation Act, 1877, Section 19 ... ... ... 182
Section 140.
And Section 251 — Partnership — Assignment of his fhare by a partner
'^Liability of assignee on admission fer debts owing by thefwm,
S^e Partnership ... ... ... ... ... 107
COUBT FEES ACT, 1870.
Section 6.
bee LimiiaUon Act^ 1877, Section 4 f.. ,,. ».• 183
tiv mUEX OF CIVIL OASES REPORTED IN THIS VOLDMB.
Ihe nferencei are to the So8» given to the eases in the ** Record. **
No,
COURT PEES ACT, 1870— (oonold.).
Section 28.
See Limitation Act, 1837, Bection 4 ... ... ... 123
Abticlb 1.
And Article 17.— Court- fee payable apon the memorandam of appeal
against an order rejecting an application under Section 525 of the
Code of Civil Procedore to file an award is Re. 10 under the sixth
clanse of Article 17 and not an ad valorem fee in accordance with
Article 1 of the Coart Fees Act, 1870 ... ... ... 84
CUSTOM— ADOPTION.
1. Custom — Adoption — Adoption by tcidou) tnthout authority from
lier husband - Validity of such adoption^^Kashmiri Pandits of Punjab —
Hihdu Law.^ Held, that Kashmiri Pandits of the Delhi District
are proved to be (ro veined in nnatterfi of adoption by cnst'Om and not
by the principles of the Mitakshara form of Bindn Lavr, and that
amongst the members of thst tribe a widow has full power after her
husband's death, and without his express pet mission in this behalf, to
adopt any boy whom she selects provided he is of the same tribe ... S4
2. Custom-^ Adoption— Adoption of daughter's son — 8e\hM JaU of
tahsil Laska^ Sialkot District— Burden of proof, '^ Found, in a suit the
parties to which were iSekba Jats of the Daska tahsil of the biall^ot '
District, that no castom was proved recognirjng the adoption of a
daughter's son in presence of near collaterals ruob as a consin or
cousin's sons, the burden of proof being upon those setting up suoh
adoption ... ... ... ••• ... ... 69
3. Custom — Adoption — Adoption of daughter*s son — Hindu Nandan
Jats of Dasuha tabsil, Hoshiarpur District^ Burden of proof —Ri^SLy
i-am. — Found, in a case the parties to which were Jat« of the Nandan
gSt of Dasuha tahsil in the Hoshiarpur District, the plaintiffs upon
whom, in the special circumf)tance8 of the case the onus rested, had
failed to prove that the adoption of a daughter's son was invalid bj
custom ..• ••• ••• ••• ••• ••• ol
4. Custom — Adoption —Adoption of daughter's son^DhUlon Jats of
mausa Jawinda Khurd, tahsil Tarn Taran, Amritsar District.'^ Pound,
in a suit the parties to i^hich were Dbillon Jats of fnataa Jawinda
Khurd in Tarn Taran tahsil of the Amritsar District that the validity
of the adoption of a daughter's son had been established by the party
setting up the adoption ... .*• ... ... 85
5. Custom— Adoption of daughters son—DhiUon Jats of tahsil Tarn
Ta/ran, Am/ritsa/r District.'^ Found, that the adoption of a daughter's
son is valid by custom among Dhillon Jats of the Tarn Taran tahsil ... 86
6. Custom — Adoption— Adoption of sisters son — Katals of BidaH,
tahsil Ludhiana* — Found that amorg Kalals othe rwif e called Ablnwaliaa
or Nebs of mauxa Bntari in the Ludbiana tahsil tie adoption by a
(KmlesB proprietor of a sister's son is vMid by cBatom «,* ••• 87
INDBX OF OPHL CASES REPORTED IN TfflB VOLUME.
The r^enncea mre to th§ 2^. given to tKe cases in the '* tUeerd, **
No.
CUSTOM— >DOPTION-(ootiold.).
7. Otutont'-^Adoption'-Adoptvon of wife 8 brothers soti'-'Htndu Law
or ctutam^BrahmaTie of roaassa Diahur, tahtiil Kasur^ Lahore District'^
LocQS 8t*indi of the reversioners of the eighth degree to contest such
adoption—Burden of proof — Held^ that in matters of adoption Brahmans
of mauza Oialpor, tahsil Kasar, in the Lahore District, who are full
proprietors wjth share of shamilat in the village, and had settled with
the founder, had for eight gencrati'-ns oaltivated land^ and had
oloeely associated themselves with the Jat proprietors of the village,
were governed hj the general rnles of agrienltaral enstom and not
by Uinda Law, and that the defendants had failed to discharge the
burden which, ander the oironmstanoes, Uy apon them of proving that
the adoption of a wife's brother's son was valid by oastom, or that
the collaterals of the eighth degree were not entitled to contest sneh
an adoption ... ... •••- ... ... 94
CUSTOM— ALIENATION.
1. Oustom— Alienation^ Suit by reversioner to enforce his right in
respect to la/nd on the ground that the alienation had been without
necessity which alienation had already been challenged by his father on
the ground of pre-emption only — Locos atdmdi'^ Estoppel by acquiescence.
See Estoppel ... ... ... ... ,,. 35
2. Alienation of occupancy rights — Bights of reversioners to restrain
such alienation — Burden of proof— Punjab Tenancy Act^ 1887, Section 59.
Bee Occupancy Bights .. ... ... ... 98
3. Alienation by male proprietor of ancestral land — Suit by afterAxyrn
son of such proprietor to recover possession of such la^id — Limitation'^
Starting point of— Punjab Limitation Act, 1900.
See Punjab Limitation Act, 1900 ... ... ... 108
4. Ousfom—Alienatioft-^Gift of land inherited by daughter in favour
of her adopted son — Suit by reversioner of the last male owner fur
possession on ground that the gift was invalid as against themr^ Plea of
estoppel by conduct of acquiescence — Inducing person to believe in and act
upon ihe truth of anytJnng — Evidence Act^ 1872, Section 116 — Ansari
Sheikhs of Basti Danishmandan, Jullundur District. — In 1832 * J,* a
flonless Ansari Sheikh of Ba^ti Danishmandan in the J nllandar District,
gifted his ancestral land in lien of his wife's dower to his daughter M,
which in accordance with the wishes of the donor passed on her death
in 1849 to her hnsband ' S.* In 1851, 'S,' in tarn gifted the said
property along with what he had inherited from his own father to
bis daughter * Z ' in lien of her mother*s dower. Z married B
and being childless adopted a boy M, defendant in this case, by
a registered deed which was eiecnted in 1887 and soon aftor
settled the property, which had come to her from her father * 8 ',
on her adopted son by a deed of c^ift, dated 4th May 1888,
mutation of which was duly e£fected in the coarse of the same
year in favour of M as the adopted son of Z. In 1895 a private
paitition was made, the parties appearing before the rev^ode
autboritieti and requesting thut the arraugemeut be recordcid ,wd
t?i INDEX OIP CIVIL OASES REPORTEl) IN THIS VOLOMfi.
The references are to the Noa, given to the ccLsee in the *' Record.^
No-
custom— ALIENATION-- (oontd).
entries made in aooordanoe thereof and allowing defendant in con.
neotion with this land to be desoribed as the adopted son of Z.
This arrangement was snnotioned on 11th Jane 1896 with full
consent of all persons concerned, and the parties then took possession
of their respective shares in parsuance thereof.
'On the death of Z, which occurred on 4th May 1899, the
plaintiffs instituted the present claim for possessioo oo the allegation
that they being the nearest collaterals were the rightful heirs to
the property held by him, and that defendant had no title
thereto, the deed of gift and his alleged adoption being both
fictitious and invalid by law and custom. The defence inter alia
pleaded estoppel by conduct, acquiescence and limitation.
Held, that the plaintiffs were precluded from making the present
claim, the facts noted aboye shewing acquiescence in the adoption
and alienations.
Fotind upon the evidence that in matters of alienation and
Buccession thf< parties were governed by Muhammadan Law and
not by custom, and therefore a male proprietor was competent to
make an absolute gift of his ancestral immovable property in
favour of his daughter ... ... ... ... 1
6. Ouetom-^ Alienation- WiU^ Competency of a sonless proprietor to
make a will in favour of his daughter in presence of brother^-^
Awan$ of Bawalpindi tahsil. —i^ottnd, that by custom among the
. A wans of' Bawalpindi tahsil a bequest of ancestral property by
a sonless proprietor in favonr of his daughter is valid in the-
presence of his own brother ... ... ^.. ... 15
6. Alienation — Alienation of ancestral property by sonless proprietor
"^lUght of after 'bom reversioner to contest alienaiipn beyond time —
Legal disability — Limitation Act, 1877, Section 7,^fleW, that a
reversioner born subsequent to the date of an alienation which
had been made in his fathers life-time 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 ... 22
7. Custom — Alitnatioti^ Alienation by sonless proprietor — Locus
standi of the reversioners of the eighth degree to contest such alienation
•^Hindu Bhat Jats of tahsil Baya^ SiaUcot District. — Founds that
among Hindu Bhat Jats of tahsil Etaya in the Sialkot District
collaterals of the eighth degree are not entitled by custom to
contest an alienation of his ancestral estate by a childless proprietor
as being made without necessity or consideration ... ««. 23
8. Custom — Alienation -- Gift of ancestral property by a sonless
proprietor to sisters son tvho tmis also the donor $ khnnadamad and
daughter's son-^Khinger Jats of Chakwal ta hsil, Jhelvmi District. — HaW,
that amongst Khinger Jats of the Chakwal tahsil, in the Jhelum
District, a gift by a sonless proprietor of his ancestral property in
favour of a sister's son, who was also the khanadamad of the donor,
in consideration of services rendered by the donee to the donor and
a daughter's son in the presence of male collaterals is valid by
costoai M« ••. . ••• ••• ••• ••• 29
t^EX OP CIVIL CASfeS RiaPORTED IN tfflS VOttJMfc. xVii
Tk$ rrferBne€3 art to the Nos. given to the ca$e$ in the " Record, **
CUSTOM—ALIENATION— (oontd.).
9. Oustoni'^Altenatton — Alienation by sotdets jpropne^or— Locus
ptandi ofrevernonev-Bedi Khatris of Ralewal^ tabAiI Dasuha^ Hoshtar-
pur District — Hindu Law — Bwrden of proof , — Held, that the plaintiff
upon whom the onus \ny had failed to establiph that in mattera of
alienatioD a soDleps Bedi Khatrt of Kalewal, tahsil Dasnha^ iu the
Hoshiarpnr Disiriot, was governed by coatom and not by Hindu Law ... 33
10. Custom — Alienation — Sale by sonless proprietor — LocmR standi
of revernoTier-- Qilani Say ads of mauza Masania^ tahsil Batata^ Ourdas-
pur District^'Muhammadan Lata — Religious purposes, justification for. —
Heldf that in matters of alienation and anccession Gilani Sayada of
mauea Mapania, tahsil Batala, Gnrdaspnr District^ who have for
nine generations past followed agriculture as a landholding occu-
pation, were governed by the general rules of agricultural custoois
of the Province and not by the Mnhammadan Law, and that the
alienation of ancestral land by snch a proprietor was consequently
Subject to restriction, but he was justiBed in raising money in order
to perform the aqiqa ceremony of his deceased son and in alienating
a small portion of his ancestral land for that porpose «.. .•• 40
11. Alienation by male proprietor^ Alienation of ancestral estate in
order to carry on, speculative suits for pre'emption^-^ Legal necessity, — Heldy
that advances made to agricultural propiietors on the security of
ancestral land to provide them with funds to fight out speculative
suits for pre-emption, can under no circumstancea be regarded as
incurred for legal necessity and alienees who make such adyanoes cannot
I'easonably ask the Courts to regard sach alienations as made for
necessary purpose ... ... ... ... ••• 65
12. Custom^ Alienation^ Gift by sonless proprietor to dauglUer^Baj'
puts of manza Kharal Kalan and E karat Khura in the JuUundur a/nd
Hoshiarpur Districts* — Held^ that dffeudants on whom the onus
lay had failed to establitih a custom by which among Raiputa of
Bhatti got of wAiuza Kharal Kalan and Kharal Khnrd in the
Jullundor and Hoshiarpur Districts a sonless proprietor was com*
potent to gift his aocestral estate to a daughter in the presence
of collaterals of the fifth and third degrees respectively ... ... 88
13. Custom^ Alienaticn-' Oift by a childless proprietor of his
entire estate to ttco of his grand-nephews in presence tf other nephews
and grand-nephews^ Mair Bajputs of Chakwal tahsil of the Jhelum,
District. — Fot«n(f, that amongst Mair Rajputs of the Chakwal tdhsU
of the Jhelnm District, a gift, by a childless proprietor of his entire
estate in favour of two of his grand-nephews in the presence of other
nephews and grand-nephews is valid by custom ... ... 96
24, Custom — Alienation- Power of widow to make a son in-law khana-
damad or to gift to daughter and her husband^ Arains of Naraingarh^
Uniballa District --Ancestral and acquired property -Jjocqb standi of
reversions in presence of daughter. — Found, that among Arains of
Naraingarh in the Umballa District no special custom has been pioved
whereby a widow in possession of her deceased husband's estate for life
is competent, in the \ resence of the first cousins of her late husband,
to make a son-in-law a fhanaddmai or to gift her busb&nd*s property
to him or to her daughter.
tviii INDEX OF CIVIL CASES REPORTED IN TfflS VOLUME.
The references are ta the Noi. given to the ca$e» in the " Record. '
CUSTOM— ALIENAT10N-(concld.).
No.
In matters of alienation a widow in posee^aion of gelf-acqnired im*
movable property of ber hasband is enbject to the Bamo resti ictions
as if tbe ptopertj were ancestral ; and the existence of a daughter
dors not preclnde a near leversioner socb as a first congin fiom con-
testing an alienation effected by snch a widow... ... ... 103
16. Cvstorri'^ Alienation — Gift hy daughter 8 son of ancestal maternal
estate inherited hy his mother from her father wndtr a gift—Jais of
Mathothial gbt o/m»oza Kulchpur, thhsW Kharinn^ Gujrat District. —
Fotmdj tbat among Jats of the Mathothliil got of m^iuza Kulchpar,
tahsil Khatian, in the Gajrat District, a danghter^s son who bad pno-
oeeded to tbe property which had heen gifted to his mother by her
father is competent by costom to gift tbe said property to bis
daogbter ... ... ... ... ... ... 104
16. Cvstom — Alienation— Alienation of ancestral property^ A roras
o/tahsil Chakwal, Jhelum District— Hindu Law or Custom — Burden of
proof. — JBTeW, that in matters of alif'nation of ancestral property tbe
Aroras of tahsil Ghakwal in the Jhelam District are not governed
by custom bnt by Hinda Law, and that a shIo of ancestral land by
a sonless proprietor in favour of his sister's son cannot be qoestioned
by hiscollHferals on tbe gronnd that it was made without necessity
or consideration.
Members of non-agricultaral tubes ace not to be bold bound by
customs prevailing among agricultnial tribes dimply becuuse they
happen to own land and to bo living with members of agricultural
tribes, and the burden of pi oof, therefore, that in matters such as
alienation or succession they are governed by custom, rests always
on the party making such an allegation ... ... ... 115
17. Custom — Alienation — Gift of ancestral property by childless
proprietor in favour of stran';ers — A wans of Jullundur District. ^Eeld^
tbat by custom among A wans of the Jullundur District a childless
proprietor is not competent to make a free and absolute gift of
bis ancestral laud to strangers and non-relattons in the presence
of bis male agnates ... ... ... ... ... 127
CUSTOM— IKHERITAKCB,
1. Custom — Inheritance — Right of grandson whose f other hns
predeceased the grandfather in the estate of the latter — Muhammadan
Kashmiris of Banga^ tahsil Nawashahr, Jullufidur District. ^"Ixi a suit
the parties to which were Muhammadan Kanhmiris of Banga, tahsil
Nawashabr, Jullundur District, founds tbat in matters of inheritance
they were governed by custom and not by Muhammadan Law, and
that among them tbe son of a prt deceased son was entitled to
succeed to his grandfather's estate by right of representation .•• 8
2. Custom— Inheritance— Bight of a son-in-law of a kLanadamad
io succeed— Gujars of Gujrat District.'^Found in a esse the parties to
which were Oujars of the Gujrat Disti:ict that by custom the son-in-law
INDEX OP CIVIL OASES REPORTED IN THIS VOLUME. rix
The references are to the No$. given to the eases in the " Record, '*
No.
CUSTOM— INHBRITANCB—Cconcld.).
of a khanadamad waa not entitled eyen if be had been appoint-
ed khanadamad by his f<ither-in-law to socceed as soch to the
estate of the father-in-law of the latter ... ... ... 14
3. Custom-^Inheritance — Bight of sister* s son to succeed in pre"
ference to the Jagiixiar ala roalik — Thahar Rojputs in Dada Siba jagir,
Kangra District*— In a case the parties to which were Tbakar Rajpats
of the Dada SiW yo^tV in (he Kan^sra District, ^e^tf, that the defen-
dant had failed to establiHh a cnstom wbereby a sister's son inherited
his roatemal node's anoeftral property in preference to the jagirdar
alamalik ... ... ... ... ... ..• 72
4. Custom.'^Inheritance — Aroras of Amrttsar City — Succession of
brother in preference to a daughter --Hindu Law — Burden of proof.—'
Held^ that the defendant npon whom the onus lay had failed to
establish that in matters of snccession the Aroras of Amiit^ar City Were
governed by custom and not by Hinda Law, or that collaterals
were entitled to socceed to the exclusion of a daughter ... ... 99
5. Custom — Inheritance-^Bunjahi Khatris of Bawalpindt-^ Bight of '
collaterals to succeed in preference to daughters sons and grandsons — Hindu
Law.-^Heldf that the defendant upon whom the onus lay had failed
to estHblish that in matttrs of inheritance the Bunjahi Khatris of
Rawalpindi City were governed by custom and not by Hindu Law,
or that collaterals were entitled to socceed to the exclusion of
daughter's sons and grandsons of the deceased sonleps proprietor ... 102
6. Custom '^ Inheritance ^Ourmani Bilochis of Dera Ohazi Khan
tahsil^^TTtc^f and daughters* right of inheritance^ Muhammadan
Law. — J3eZ(2, that in matters of succession Onimani Bilochis of the
Dera Obaii Khan tahsU were governed by custom and not by
Muhammadan Law, and that among them a widow is entitled merely
to maintenance and a married daughter does not in any case succeed '
to any portion of her father's ancestral property in the presence
of male collaterals of the latter .. ... ..^ ... 119
7. Custo^i — Inheritance— Sister* s right to succeed as a daughter of the
penultimate male holder,-- Held, by the Full Bench t^at among patties
following customary taw the p')8ition of a sister of a male proprietor
without issue cannot be assimilated for purposes of inhexitance to
that of a daughtei, and she must therefore in such matters be re-
garded as a sister of that proprietor and not as a daught'^'r of his
father ... ... ... .•• ••• 134, P. B.
CUSTOM— PRE-EMPTION.
S*»e Pre*emption.
DEGREE.
DeoreS'-^OonstmcHon of decree^Decree in favour of appellant with
costs.^Heldf that the proper interpretation of the words *' appeal
%t INDEX OF CmL CASES R£PORTED IN THIS VOLUME.
The references are to *he Nos, given to the cases in the " Record,
No.
DBCREB-(eoDoIcL).^
dismisped or accepted witli costs *' is tbat tbe costs of the AppeHate
Gonrt fJoDe are awarded and not that of the Courts below.
Bafnjt Das v. Charanji Lai (45 P. B., 1877), followed ... . 18
DBCLARATORT DEGREE, SUIT FOR.
1 . Suit hy a person tn possession for a declaration of title in immovable
properiy^^fiause of action against defendant — Adverse entry in revenue
papers'^Limitation,
8ee LimitaHon Ad, IS77, Article 120... ... ... 140
2. Specific Belief Act, 1877, Section 42— Sta^ for declaration^
Further relief— Amendment of plaint, — Beld, that a suit for a declaration
shoold not be dismissed merely becaose the plaiiitiff beiog able to seek
farther relief has omitted to claim it^. In such a case the Court mast
allow plaintiff to amend his plaint by asking for the farther rdief ... 128
E
EQUITY OP REDEMPTION.
See Mortgage,
Mortgage-^ Hortga^ee obtaining money decree against his mortgagor
not allowed to purchase equity of redemption in the properly mortgaged to
him — Effect of prohibited purchase, — Held, that a mortga gee nnder a
conditional sale canoot, by porchaAing the eqnity of redemption in
exeoation of a money decree obtained by him agaiost his martsragor,
aoqoire a complete title as of a parchaser in the property mortgaged
to him so as to deprive the mortgagor of his legal privileges regarding
the eqaity of redemption.
Snch parohasef\ being absolately nnlawfal do not confer an
irredeemable title on a mortgagee without his having reconrse to the
proper procedare^iesciibed for that purpose and without giving the
mortgagor an opportunity to redeem ... ... ... 2
ESTOPPEL.
1. Alienation by uidow — Suit by reversioner to have such alienation
declared null and void — Compromise of such suit between the vddow in
possession and the reverisoner-- Subsequent suit by the s(m of such
reversioner-- Estopp el.
Bee Bes judicata ... ... ... 37
2. Custom — A lienation - Gift of land inherited by daughter in favour of
her adopted son ^ Suit by reversioners of the last male owner for possession
on ground that the gift was invalid as against them — Plea of estoppel by
coTiduct of acquiescence —Inducing person to believe in and act upon the
truth of anything-^ Bvidet^ceAct^ 1872, 6'edtan 115 — .In 1832*J,* asonless
Ausari Sheikh of Basti Danishmandan in the JoUandar District, gifted
his ancestral land in lien of his wife's dower to his daaghter M, which
in accordance with the wishes of the donor passed on her death in 1849
to her husband * S.* In 1851, 'S ' in tarn gifted the said property along
with what he had inherited from bis own father to bis daughter %* in
INDEX OP CIVIL CASES REPORTED IN THIS VOLUME. »i
The references are to the A'oe. given to the cases in the *^Becord, **
E8TOPPEL-(concld.).
No*
Hen of her mother's dower. Z murried B, and beinf:: childless adopted a
boy M, defendant in this ease, by a registei-ed deed which was ezecated
in 1887 and soon after Bettled the property, which had come to her
from her father ' S 'y on her adopted son by a deed of gift, dated 4th
May 1888, mutation of which was dnly effected in the oonrse of the
same y«»r in favonr of M as the adopted son of Z. In 1895
A private partition was made, the parties appearing before the revenue
aaihorities and reqaesting that the arrangement be recorded and
entries made in accordance thereof and allowing defendant in connec-
tion with this land to be described as the adopted son of Z. This
arrangement was sanctioned on llt.h Jane 1896 with fall consent of
all persons concerned, and the parties then took possession of their
respective shares ig parsuance thereof.
On the death of Z, whioh occurred on 4th May 1899, the plaintiffs
instituted the present claim for possession on the allegation that they
being the nearest collaterals were the rightful heirs to the property
held by him, and that defendant had no title theret ), the deed of gift
and his alleged adoption being both fietitions and invalid by law and
custom. 1*he defence inter alia pleaded estoppel by conduct and
acquiescence.
Held, that the plaintiffs were precluded from making the present
olaim, the faot<8 noted above shewing acquiescence in the adoption
and alienations ... .. ... ...
3. Estoppel^ Decree in favcmr of plaintiff fcyr apart of Ms daim^^
Execution of such decree hy plaintiff — Subsequent appeal for remainder,
^Held, that a plaintiff who has obtained a decree for a part of his
claim and has executed the same is not by the mere fact of his having
taken oat execution of that decree debarred from prosecuting the
appeal as regards the remainder of his claim which had been
diFallowod by the first Court.
Mahomed v. Fida Mahomed, 82 P. E., 1868, over-ruled ... 31
4. Custom-^ Alienaf ion — Suit reversioner by to enforce his right in
respect to land on the ground that the alienation had been without necessity
which alienation had already been challenged by his father on the ground
of pre-emption only — Locns Htandi — Estoppel by a^cquiescence. — Held, that
the fact that at the mutation of a sale of ancestral immovable property
by a childless male proprietor the nearest reversioner expressed his
readiness to take it over on payment of the sale price, bat abstained from
taking any action what<)0ever in resoect to it daring his life-time, is
evidence to prove that it had been acqaiesceii in an a valid sale, and
oousequently the son of such reversioner is debarred from suing to
impeaoh the sale as invalid for want of necessity •«• ••• 35
xxif INDEX OP Omi CASES REPORTED IN THIS VOLUME
The rgferentes arw to ^$ Vos. given to th$ tone in iHe ** Betatd, *'
Ko.
EVIDENCE ACT, 1872.
SicnoN 112.
Husband and toife^^ Legitimacy of children^^Presumption a$ to
legitimacy of child horn after marriage — Evidence Acty 1872, Section
112. — Helti, that on the birth of a child during marringe the
presamption of legitimacy is oonclasive, no matter how ^oon the birth
oocnrd after the marriage ... ... ... ... 79
EXECUTION OF DECREE.
I. Suit against a Tnemher of joint Hindu family — Death of defendant
pending suit-- Decree against son as legal representative — Right of son to
quettion the legality of the debt covered by the decree in escecution
proceedings.
See Hindu Law^' Joint family ... ... ... 147
2 Defective application for-^'when treated to be a step in aid of
execution.
See Limdtqtion Act, 1877, Article 1 79 ... ... ... 1 16
3. Execution of decree for possession of immov»hle proper ty^Obsfructiofi
hy person other than the judgment-debtor s^^Frucedu*e,
See Obstruction to execution of deeree ... ... ... 118
4. An order under Section 515 of the Code of Civil Procedure
refusing to stay execution of a decree is not appealable ... 146
P
FODDER.
LiaUUiy «/, to attachment in execution of decree against an agriculture
ist.
See Att'ichment ... ... ... ... ... 82
H
HINDU LAW— ADOPTION.
Kashmiri Pandits of the Delhi District are proved to be ^vemed in
matters of adoption by custom and not by the prinoiplee of the
MUdkshara form of Hindu Law, and that amonsfst the members of
that tribe a widow iias full power after her husband's death and
without hit* expref^s permission in this behalf to adopt any boy whom
she selects provided he is of the R%me tribe ... ... ... 34
HINDU LAW-ALIENATION.
1. Alienation by Hindu widow of self-acquired property of her
hushand-^Biyht of reversioner to question such alienation. — Held, that
there is no distinction between ancestral and acquired property
inherited by a Hindu widow from her husband and a reversioner
has as much right to contest her alienation of the one as of the
other ... ... ... ... ... ... 11
INDEX OP CariL OASES REPORTED IN THK VOLUME. ixiu
The r0f0rence$ ar$ to th$ Sot, giveiv to iho ca$«$ in eAf ," Record. "
• No.
HIN DD LAW— ALIEN ATION-(oonold.).
2. Competency of father over self-acqutntion'^JoifU property'^
Validity of a testamentary disposition of his share by a member of joint
Hindu family --Effect of partition by testator before death. — Held, that a
Uinda father, is competent to dispoae ol all his self-acquired pro-
perty at pleasure, and his sous oanuot dispute the dispositiou even
though it be in favour of a stranget*.
Held, also, that a testamentary disposition of his share of the joint
property by a member of an undivided family would, not be invalid
if the interest of the testator had been separated off by means of a
partition before bis death ... ... ... ..• 150
HINDU LAW— FAMILY DWELLING HOUSE.
Hindu Law — Family debt^-Sale of ancestral dwelling house in exe»
cution of decreeT- Wife or widow's right of residence. — Held, that the
right of a Hindu wife or widow to reside in the anoestral family
dwelling house is as a general role superseded by debts incurred by
her husband in the ordinary way of business and living ... 36
HINDU LAW— INHERITANCE.
In matters of inheritatice Banjahi Khatris of Rawalpindi City are
goverDed by Hiodu Law and that collaterals are therefore excluded by
daughter's sons and grandsons ... ... ... ... 102
HINDU LAW-JOINT FAMILY.
1. Suit by the managing member of a joint Hindu family for debt
due to the family — Objection as to non-joinder — Joind&i' of other members
after period of I imitation^ Civil Procedure Code^ 1882, Section 27.
See Parties ... ... •.. ... ... 149
2. Joint Hindu fa/mily'^Suit against a member of — Death of defend^
ant pending suit— Decree against son as legal representative^ lUght of
son to question the legality of the debt covered by the decree in execution
proceedings,^ Held, that the con of a member of a joint Hindu
family who had on the death of his father been impleaded in a
suit for the recovery of a debt doe from the deceased as his
legal lepresentatiye is entitled in execution proceedings to question
the legality of the debt in respect of which the decree sought to
be executed was passed ... ... ... ... 147
HINDU LAW— MARRIAGE.
Hindu Law — Marriage — Wife's conversion to Islam"^ Dissolution of
mamage.^Held, that apostaoy of one of the parties does not in the
* case of Hindos per se dissolve their marriage, and a Hindu wife
cannot therefore deprive her husband of the legal rights which
accrued to him at marriage by simply renouncing Hinduism in"
favour of Islam ... ... ... ... ... 49
HUSBAND AND WIFE.
Legitimxicy of children bom after marriage.
See EMme^M^, 167^ Sediim^Ui ... ,,. 79
ixiT INDEX OF CIVIL CASES REPORTED IN THIS VOLUME.
The references are to (he No$, given to the casee in (he** Record. "
No.
INSOLVENCY.
Insolvency^ Omission to frame schedule'^ Creditor not debarred frwti
instituting sutt^ Civil Procedure Code, 0^82^ Sections 351, 352. — Held
that where in an insolvencj proceedings no sohedole had b<*en framed
as contemplated by Section 352 of the Code of Civil Proordare a
creditor is not, by reason of bis debt haying been entered in ilio
scbedole filed by the insolvent mith his application for insolvency,
debarred from suing for his debt.
Arunahala v. Ayyavu (J. t. E., VII Mad., 318), followed.
Penhearow v. Partdb Singh (76 P. E., 1899) considered and dis-
tinguished ... ... ... ... ... ... 64
INTEREST.
Interest ^Vendor and purchaser --Purchaser hound to pay interest on
purcJuue-money withheld by him, — Held, that a purchaser at a Fale
iQ insolvency proceedings of immovable property who is pat into
possession and fails to pay the pnrohase-money, is liable to pay
interest to the vendor on the amount unpaid up to date of payment ... 148
JURISDICTION OP CIVIL COURT.
1. Discretion of Municipal Omnmittee to take action under Section
120 E— Suit by person aggrieved for injunction — Jurisdiction of OivU
Court to restrain action of Municipal Committee — Punjab Municipal Act^
1691, Section 120 B.
See Municipal Committee ... ... .♦, ... 58
2. Jurisdiction of Civil Courts Suit for removal of water-course con-
structed mth the sanction of a Canal Officer— Northern India Canal
and Drainage^Act, 1873, Sections 21, 22, 24, 25.— ifeW that a Civil
Court has no jurisdiction to restrain a party» to whom permission
has been granted under the Northern India Canal and Drainage
Act» 1873, to oonstrnct a water-course through the land of another,
from such construction ... ... ... ... 74
JURISDICTION OF CIVIL OR REVENUE COURT.
1. Punjab Tenancy Ac(, 1887, Section 100 and Section 77 (3) (rf)— *
Contents of plaint and plaintiff's aZfe^o^ton.— Plaintiff sued for
Rs. 5f value of trees cnt by defendants on land alleged to be plaintiff's
with which defendants had no concern whatever. Deftndants
pleaded that they were occupancy tenants and so entitled to the
trees.
HeUf that the snit was one for a C^vil Court, the test being the
oonlara of the plaint and of the allegations of the plaintiff.
INDEX OF CIVIL OASES REPORTED IN THIS VOLUME. jx?
Th€ rtftreneei art to the Koi. given to the eases in ihe ** Record. **
No.
JUKISDIOTION OP CIVIL OR REVENUE COURT— (conoid.)
Eddf also, in view of the wording of Section 77 (3), Punjab
Tenancy Act, 1887, that the Civil Coart oonld not take cognizance
of the defendants' plea that they were occopancy tenants, but most
ignore that plea, leaving defendants to any remedy that might be
open to them by snit in the Revenue Coart ... ... ... S4
2. Arrears of rent of land^-Sutt upon bond given for arrears of rent^
Punjab Tenancy Act, 1877, Section 77 (8) {n).—Held, that a sait based
upon a bind exeoated for anvars of^rent of land is one cognizable
by the Civil Oonrts, and does not faU nnder claase (n) of Section 77 (3)
of the Punjab Tenancy Act, 1887 ... ... ... 41
3. Kudhi kamini— SmiY for the recovery of^^VtUage cess^^Punjab
Tenancy Act, 1877, Section 77 (3) (j).^Held, that kudM kaminiiB a
*' villtige cess " within the meaning of Section 77(3) (j) of the
Punjab Tenancy Act, and a suit therefore for its recovery is cognizable
by the Revenue and not by the Civil Courts.
Fcuial V. Samandar Khan (49 P. E,, 1891), Oowhra v. AU Oauhar
(11 P fi., 1890, Bev.), and Shahya v. Karam Khan (95 P. R, 1907
Note), followed ... ... ... ... ... 95
4. ^ommonland^Partition— Suit for declaration that land teas not
subject to partition^-'Punjab Land Revenue Act, 1887, Section 168
{XVII)— Punjab Tenancy Act, 1887, Section 77 (3) (i).^Held, that a
suit by occupancy tenants against the whole of the individuals form-
ing the proprietary body to eat^iblish that they, in common with all
the residents of the village, are entitled to graze their cattle over the
village common land, and that therefore it should be exempted from
partition is not barred from the cosrnizance of the C71vil Courts
either by clause XVII of Section 158 of the Pan jab Land Revenue
Act» 1887« or by clause (i) of Section 77 (3) of the Punjab Tenancy
Act| 1887 ... ... ... ... ... ... 144
E
KUDHI EAMINI.
Kudhi Jeamini is a " village cess *' within the meaning of Section 77
(3) (j) of the Punjab Tenancy Act and a suit therefore for its recovery
is cognizable by the Revenue and not by the Civil Court .t. ... 95
LAHD ACQUISITION ACT, 1894.
SionoH 11.
And Section li-^Award of Collector when to be ftnal^^Nature of
proceedings before Collector— Competency of oumer to question their
validity or of Civil Court to determine its correctness.'^Held, following
Etra V. Secretary of State (J. L. E., XXX Cole., 36 ; I. L. B., XXXII
CoZc., 605)| that proceedings under the Land AcquiBitio& Aot^ 1894|
xx4 INDEX OP OIVEi OASES REPORTED IN TOM VOUJMB.
T^ r€fer9nce$ are to th$ Nos, given fo the ca$e$ in the** Beeord, "
No.
LAND ACQUISITION ACT, 1894i-(concld.).
up to tlia making of an award are pnrely adminisirafcive and in no
way judicial, and that, therefore where a specially appointed Collector
prepflres nuder this Act a provision'*! award and refers it under his
departmental in»trnctior8 to the Collector of the District for approval,
and the latter having been himself bI^o empowered to make the
acquisition, reduces the amount, the finsl award of the Collector within
the meaning of Sections 11 and 12 is the award bo reduced, and
neither the owner of the property nor the Civil Courtis entitled to
question this on the ground of irregularity in the prooeedings of the
said Collectors ••• ••• ... ••• ••• 63
Section 23.
Compensation-^Principles on which compenmtion sJiould he d^tenmn*
ed — Market value, — Held, that in determining the amount of com-
pensation to be awarded for the property acquired under this Act
the ** market value " in clause I of Section 23 menus the value at
date of notification which the property would have dommnndcd at
that date in the open market had Government never contemplated
acquisition. It is not permissible to take into account speculative
increase in prices due to the expectation that Government is about to
make acqnisition^, or even enhanced prices which owners may
themselves have paid in excess of " market vhIuo " as defined above ... 68
Sectiob 31.
Acquisition of viort gaged property for ptiblic purposes — Payment of
compensation— Person interested,— Held, that where the pioperty acquir-
ed for a public parpose onder the Land Acquisition Act forms part of
an estate which has been mortgaged for an amount larger than the
amount awarded as oompenrntioo for the acquisition the mortgagee ia
entitled to receive the whole of the money so awarded ... ... 17
LAND SUIT.
Ohair^mumktn land outside the abadi and attached to a well npon
which khurlis are built and hhusa is stacked is a land suit as defined
in Section 4, sub-seotion 1 of the Punjab Tenancy Act, 1887 ... Ifl
LEGAL PRACTITIONERS.
Bach fee— Paym^ent to he made contingent on success^^IHegul and
,., improper contract— Public policy '^Contract Act, 1872, Section 23. — Held
by a majority (Chatterji and Lai Chand, J J., dissenting) that agree-
ments between legal practitioners and their clients making the re-
muneration of the legal practitioner dependent to any extent whatever
on the result of the oatie in which he is retained ^a illegal as being ^.
contrary to public policy, and legal practitioners entering into Inch
agreements are therefore guilty of professional miscouduct and render
themselves liable to the disciplioarj action of the Court.
Per Lai Ohand and Chatterji, J J., contra that the practice of receiv-
ing t>ack fee is neither opposed to public policy nor improper as
regarJs a legal pr.iotitioner, other than members of the English bar,
TOTolIod under tbtt Legal Practitioners Act. 1879 m. #f W
iNDtX OF CIVIL CASES REPORTED IN THIS VOLUME. mii
The references are to the No$, given to the cases in the **JUcord, *'
— • r^
No.
LEQITIMACY
Of children bom after mamctge.
See Evidence Act, 1872, Section 112 ... ... ... 79
LIMITATION ACT, 1877.
Section 4.
Plaint — Presentation of insufficiently stamped plaint ^Payment of
deficiency after the expiry of limitation allowed for the suit — Date of
institution of suit — Court Fees Act, 1870, Sections 6, 28^ Civil
Procedure Code, 1882, Section 54 (A). — Where a, plaint was present-
ed -within the prescribed period of limitation on an inpnffioient
stamp, and on discovery of the mistake the reqaisito de6oiency was
made good within the time fi^ed by the Court, bat after the expiration
of the limitation allowed for the suit.
Held, that baying regard to the provisions of tbe Explanation to
Section 4 of the Indian Limitation Act, 1877, and Sections 54 of the
Civil Prooedare Code and 28 of tbe Conrt Fees Act, 1870, tbe suit
sbonld be regarded as having been instituted on the date wben tbe
plaint was first presented and that it Was tberefore in time ... 123
Section 5.
Death of one of several defendants— Application for substitution^'
Sufficient cause for not applying tcithtn prescribed period.
See Parties ... ... ... ... «.. 113
SscnoM 7.
A ]:ev;ersioner bom sabseqaent to tbe date of an alienation wbich
Lad been made in his father's life-time cannot avail bimself of an
extension of time nnder tbis section to enable him to contefit tbo
validityof such an alienation ... ... ... ... 22
SlOTIOH 10.
And Article 120-^Trust and trustee— 'Suii by settler against trustee on
failure of the object of a trust to recover trust funds for himself ^» Starting
point of limitation, — Held, that where the anthor of a trust on failure of
its objects sues to recover trust property in the bands of a trustee
for bis own use and not for tbe purposes of the trust. Section 10 of
tbe Indian Limitation Act is inapplioablo.
Sucb a suit being a suit to reconvey trust property to tbe settler tbe
limitation applicable is* tbat prescribed in Article 120 and will com-
mence to run from tbe date of the failure of the object of tbe trust ... . )32
Section 12.
1. Tbis section does not apply in computing the periods of
limitations prescribed for an application under Section 70 (6) of tbe
Punjab Coarts Act, 1884, and thet efore tbe time requhiite for obtain*
ing copies of the judgment and decree of the lower Appellate Court
cannot be deducted in computing tbe pericds laid down by clause (t)
of Section 70 (6) of that Act ... .r. ... ... 20
txnu INDIBX OP tOVIL OASisS RiaPOBTED IN THIB VOLmik
Ih$ r^erence$ airetoth4 Kos. gitfen to the ecan m the *' llicord. **
Ka
UMITATION ACT, 1877-(oontd.).
SionoM 12^oonolcl«).
2. Later on it was held iliat it applies to applications
under Section 70 (&) of the Pnnjab Courts Act, 1834, and that there-
fore the time requisite for obtaining copies of the jad^nnent and decree
of the lower Appellate Court is to be ezdoded in computing the period
laid down by clause {i) of Section 70 (&) of that Act.
Kishen Dial v. Bow Bitta (20 P. E., 1907), over-ruled ... IM
SsfnoM 19.
And Articles 64, 85 — U^isigned statement of account in defendant's
books — Acknowledgment — Mutual account —Gontraci'-^ Contract to pay a
debt barred by Limitation Law — Contract Act^ 1872, Section 25 (c).—
Held, that a bate statement of arcoant in a defendant's books in
the hand-writing of the plaintiff himself such as ** Daskhat (plaintiff)
rupia 53,526-5-9 hisab samajki baqi nikalli " made ap largely of a
barred item transferred from another accoant which had not been
signed by the defendant or his authorised agent in that behalf is
useless for the purposes of limitation and does not create a fresh
starting point as it neither amounts to an acknowledgment within
the proyisions of Section 19, nor to an accoant stated under
Article 64 of the Limitation Act or to a promise to pay within the
meaning of Section 25 (c) of the Indian Contract Act. In such a caAe
the transfer of the harred item without observation of doe formalities
to a mntnal open and curient account even with defendant's consent
cannot over*ride. the Law of Limii ation ... ... ,,, 132
Section 22.
Pre*emption'^Suit for prC'emption^'Assignmsnt by vendee pendente
Wifi'^Addition of assignee as co-defendant after period of limitation^-'
Limitation, — The plaintiff brought an action to enforce a right of pre*
emption within the period of limitation prescribed by law. The
defendant vendee assigned over his interest to a third party after
the institution of the Fuit. On the application of the plaintiff, after
the period of limitation had expired, the Court ordered the assignee
to be impleaded as a co-defendant. Thereupon the defence pleaded
limitation.
HeZ(2, that the suit was not barred by limitation in con8<>au6nce of
the joinder of the assignee. The provisions of Section 22 of ihe
Limitation Act do not apply when the original suit is continued
against the added defendant who derives his title from the original
defendant by an assignment pending the suit ... ••• ... 3
Artioli IC.
See Fre-emption ... .,. .«. .«. ..« 106
AftTICLB 64.
See Section 19, supra ... ••• ..« .., 132
Abtiole 85,
See Section 19, sufra •.. ... ^, ... 132
IKDEX OF OiVIL CASES REPORTED IN THIS VOLITMJB.
The r^eneei are to the So$, given to the ca$€8 m the ** Becord.
No.
LIMITATION ACT, 1877-(ooiiW.)*
AVflOLB 118* . ,
1. Artiole 118 of tbe lodian Limitation Act applies to eyery oase
where the yalidity of an adoption is the sobstantial question, whether
it arises on plaint or on defendant's pleas, and the faet that it was
alleged to be invalid or inherently invalid makes no difference in
this matter.
Muhammad Din V. Sadar Din (67 P. R, 1901), not followed ... 1
2. Suit by a reversioner for possession of immovable property —
Defendant in possession under an alleged adopHoh^-' Starting point of
limitation. — Held^ that Article 118 applies to every snit filed for
whatever purpose where the yalidity or invalidity of an adoption
oomes ioto quoBtion, and the time begins to ran from the date
the alleged adoption became known to the plaintiff ... ... 88
Abhclb 120.
See Section 10, supra ... ... •.» ... 132
Declaratory decree^ Suit by a person in possession for a declaration of
title in immovable property^^Cause of action against defendant ^Adverse
entry in revenue papers, — Beld^ that a suit for a declaration of biii
title to immovaole property by a person in possession as proprietor
is not barred if brought within six years from the time when the
defendant attempts to oust him from the land although a right to
sue the defendant who had been recorded as owner of the • property
in the settlement record had already accrued and become baired ... 140
Abtioli 141.
Limitation — Suit by a reversioner of a male proprietor entitled to
possession of ancestral land on the death of the widow of such pro*
prietor^^Punjab Limitation Act^ 1900, Article 2.^Held, that a suit on
the death of the widow of the last male proprietor by a reversiooer
for possession of ancestral land alienated by the hu^bapd of the
widow is governed by Artiole 141 of tbe Indian Limitation Act,
1877, and not by Article 2 of the Punjab Limitation Act, 1900 ... 145
AsnoLB 144.
See Article 120, supra ... ... ... ... 140
Possession of a widow in lieu of maintenance cannot be adverse .
possession.
See Posieseion ... ... ... ... ... 102
AsncUB 179 (2).
Limitation^^Decree against several defendants — Appeal by some of the
d^endants against part of the decree only — Execution of decree^ Start*
ing point of limitation from date of appellate decree against all the de*
fendants.'^The plaintiff sued nine defendants jointly for possession
by part^tipn of two houses, Nos. 1 and 2, and obtained a decree for
certain specific shares in house No. 1 against defendants Nos. 1, J, 3
IN6KX OP dm CAStB REPORilBi) tS TffliS tOLttlfe.
27m rrfwrenees ar$ to the Nob. piven t^ the catei in th€ " Beeord, **
No.
LIMITATION ACT, 1877— (conoid.).
and 7, and in Honse No. 2 agaiDf>t defendants Nos. 1, 2, 9, 4 and 5.
Defendants Nos. 6, 8 and 9 appealed in respect of honse No. 1 bat
tbeir appeal was dismissed by tbe Appellate Court. On a sub-
sequent remand (on farther appeal by the Chief Court) this order
was after a farther inquiry agafta sffirmed. The plaintiff appKed
for execution in respect of bouse No. 2 after the expiration of three
years from the date of the origiual ,decree but within three years
' from the date of the appellate decree, whereupon defendant No. 4,
who bad not joined in the appeal but was a party to all the pro-
oeedingB, pleaded limitation on the ground that there having been
no appeal on his 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 ran against
all the defendants from the date of the 6nal decree of the Appellate
Court irrespective of the fact that some of the judgment-debtors were
not interested in the appeal.
Clause 2 of Article 179 of the Indian Limitation Act applies to all
such decrees against which an appeal has been preferred by any of
the parties to the litigation in the original suit ... ... 32
Article 179 (i).
Execution of decree — Defective application for — Step in aid of
exectUioih. — Held, that if an application defective in form as an ap-
plication for execution of a decree contains a prayer for the issue
of a notice under ^Section 248 of the Code of Civil Procedure and
such notice is issued, it should be treated as an application to take
some step in aid of execution within the meaning of Article 179 of
the second schedule to tbe Limitation Act, 1877 ... ... 116
MARRIAGE.
1. Legitimacy of children horn after.
See Evidence Act, 1872, Section 112 ... ... ... 79
2.- Hindu wife's conversion to Mam'^BissoltUimi of marriage.
8oe Hindu LaW'^Marriage ... ... ••• ... 49
MINOR.
Uinor^ Settlement on behalf of a Muhammadan minor by hii brothers'^
Competency of minor to repudiate fhrottgh a next friend such settlement
icithout restoring other party to position he occupied at time of afrange*
ment-^Maintainability of suit.^Held, that po suit can be. m^i^tained
on bfhalf of a minor to set aside a settlement which has been
made on his behalf by his brother during his minority, and had been
acted upon by the other party thereto, even on the ground that under
Muhammadan Law the brothers had no power to contract on behalf of
their minor brother, without first restoring that party to the position
which he occupied at th^ time the' settlement was made ... ••• . 91
isfmx OF crm cases rbportep in this volume. ttii
The r^$frene&$ are to the Ko$, given to the taeee in the " Beeo^d. *'
MORTGAGE.
No.
1. Mortgage*^ Separate covena/nts for th0 payment of principal and
intereBt'^DiaUnct eausea of actiMi ^Competency of mortgagee to tnatitute
aeparate euita for principal and interest when both hive fallen due^AU
clatma on same cause to be included.
Bee Oauae of Action ... , ... ... ,„ 28
2. Suit by m^tgagor for redemptton^Diamtaaal of auit for default
^Subsequent suit for the same object^^Matntaindbility of.
See Oivii Procedure Code, 1882, Section 102 ... „. 43
3. Mortgagee obtaining money decree againnt hia mx>rtgagor not allowed
to purchaae equity of redemption in the property mcyrtgaged to him-^Effect
of prohibited purchaae.
See Equity of Redemption .,. ^,^ 2
4. Oonditional sale -^Reference by Chief Court under aub'Section 3 of
Section 9 of Punjab Alienation of Land. Act, 1907. -^Refuaal of Dignity
OoTnmiaaioner to take action after the non-ac^jfdance of hi'a propotal by the
mortgagor-— Procedure for mortgai^ee—'Regidation XVII of 1806.
See Punjab Alienation of Land Act, 1900, Section 9 ... „. 93
6. Duty of Court to refer mortgage by deed of conditional sale to
Deputy Oommisaioner if rnade by a mernber of an agricultural tribe^^
Punjab Alienation of Land Act, 1900, Section 9 — Refuaal of Court to
recognize a party c^ a member of $uch tribe who failed to prove his
aaaertion no ground for reviaion — Punjab Courts Act 1884, Section 70
(>) («)•
See Revisfion ••• ••• .tt ••• ... 4
6. Mortgage-— Mortgage for a fixed period-^Representaiive of the
mortgagor not allowed to redeem before the expiry of the term-^Long
term aUme does not amount to clogging the equity of redemption. — Held
that a period fixed for redemptioa by the parties in a moiig^age
boDd cannot be regarded as one fixed withoat legal necessity and
as snob ineqaitable and unenforceable on the mere ground of its
being unasaally long, and the representative of the mortgagor cannot
be allowed to redeem before the term fixed on that bebalf especially
where it is shown to have been fixed by the mortgagor in good
faith and with due regard to bis best interests ... ..• 39
7. Mortgage by conditional sale — Foreclosure^ Regulation XVII of
1806 — Nobce under Section 8 — Non-existence of auch notice on foredoaure
file — Preaumption a>a^ to ita regularity. ^lu a case for redemption the
defendant plfadei that the alleged mortgi^e had been foreclosed
so far back as 1881. The plaintiff denied this allegation ^nd
urged tha(; no prescribed notice had ever been issued or served
on him. The file of the foreolosure proceedings having been brought
up, it was discovered that nathi B, including the notice in question
bad been destroyed, bat from the document in nathi At it appeared
Xixli INDEX OF OIVIL OASES REPORTED IN THIS VOLUME.
The references are to the Voe. given to the caees in the ** Jl#cor<i.**
STa
MOETGAGB— (oontd.).
that a notice had been ordered to be issued to the mortgagor and
that the latter had attended the District Court, when the Jodge
passed the iollowiog order?—
'* Parties present, defeadant (present plaiotifi) has been thoroughly
*' warned that within one year he shonli hare the land redeemed,
«• thereafter no excuse will be listened to."
Held, that the non-existence of the notice was a fatal defect to
the validity of the forecloi^ure proceedings as it could not be presumed
on the strength of the above order of the District Judge that the
notice issued to the mortgagor had been served upon him or that
it complied with all the requirements of procedure as laid down
in Section 8 of the Regulation ... ... ... ..• 46
8. Mortgage—Scynrpayment of consideration according to agreement^
Incomplete transactton^Lien. — Held, by the Full Bench that in the
absence of a specific contract postponing payment, failure to pay full
consideration as agreed upon whether to the mortgagor or to a
prior incumbrancer after sach payment has been demanded by the
mortgagor, avoids the mortgage and destroys the mortgagee's lien
and right to possession even on subsequent tender of the unpaid
consideration, it being immaterial ^hether the non-payment has or
has not caused inconvenience or loss to the mortgagor.
Gomess v. UelaEam (16 P. E., 1884), dissented from ... 59, P. B.
9. Mortgage — Conditional sale ^Agreement by instalments or in default
tlie mortgage would become a sale-- Applicability of Regulation XVII of
1806 to such agreements^Begulation X VI of 1806 — Stipulated period,'^
Held, that a deed of mortgage whereby money was borrowed on the
security of landed property upon a stipulation that the sum
borrowed would be repaid by annual instalments and in case of
default as to aay 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 t3 the provisions of
Hegnlatiou XVII of 1806 and is not liable to the oonditiona and
incidents applicable under the Regulation to such sales.
Bagh Singh v. Basatoa Singh (60 P. B., 1906) followed.
Heldf also, that the term " stipulated 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 Balm Debi (J. L. E., XXIII Oalc., 228,
P. 0.) followed ... ••• '•• ••• ••• 'O
10. Mortgige-^Gonditional sale-^Foreclosure — Regulation XVII of
IQQQ^Yalidity of notice of forechswre'-Ohjection taken for first time on
appeal.— hx a suit for possession of immovable property under a deed
INDEX OP CIVIL OASES REPORTED IN THIS VOLUME. xxxUi
The rrferences are to the Voe, given to the casei in the " Record, "
No.
MOBTGAGE-KooDdd.).
of oonditional sale said to have been foreclosed nnder Regalation
XYII of 1806 the defendants practically admitted the validity of
the notice issued nnder the Regalation, their main contention being
that no demand previoas to the isaae of the notice had been made*
The Coart having fonnd this point against the defence decreed
the claim* On appeal the mortgagors challenged the validity of
the notice on the groands» amongst others, that neither khatra
and khewat numbers nor the principal and interest were specified
in it, and that it did not bear the proper official signature of
the Judge inasmuch as his official designation was in print instead
of being in the Judge's own hand.
Eeld^ that it is not essential to the validity of a notice that it
should contain the khasra and khewat numbers or the precise
amount due on account of principal and interest (especially where
a grwB amount due is stated in addition to the expression " or
the balance due ") or the official designation of the Judge in his
own hand-writing under his signature when it already existed in
print at the place required.
Beld, per Johnstone, J., (Battigan, J., doubting as to this) that
in the above circumstances an appellant should not be permitted
to plead the aforesaid defects in the notice for the first time in
appeal ... ... ... ... ... ... 105
MDHAMMADAN LAW-«IFT.
Muhammadan Law^Oift made in contemplation of d^ath — Death
illness. — Eeldf that a gift made by a sick person aged eighty, three
days before his death must be regarded as made in contemplation
of death within the meaning of Muhammadan Law relating to
death*bed dispositions and is therefore inoperative as such •.. 135
MUNICIPAL COMMITTEE.
Municipal Committee^-'Discrefion of, to take action tmder Section 120 B
"^Suit by person aggrieved for injunction — Jurisdiction of Civil Court
to restrain action of Municipality — Punjab Municipal Act, 1891, Section
120 E. — Althoogh under the powers given by the Legislature a
Local Body may act perfectly bond fide B,nd intra vires in issuing a
certain order, still if that order injuriously affects 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 in question was made wantonly or
without any reasonable justification Therefore, where a Municipal
Committee, at the instance of a d'8C0»>tented reicrhbonr, is!iu'»d a
not.i«^ under S^-ction 120 E of Act. XX of 1891, diieoting the
plHintiff to closH hi« old drain and to make a new one in its
place along a different alignment, without any proper enqairy as
to whether the existing drain was a menace to the health of
the people surrounding it or the general public
Held, that the Civil Court should under such oironmstances
interfere .by injunction to restrain the Committee from carrying
out its order which was inequitable and pretended to proceed on
an alleged danger to healtl^ which was in no way proved ms 58
No.
xxxiv INDEX OP CIVIL CASES RKPORTED IN THIS VOLUME.
The reference$ we to the Vos, given to the ca$eB in (he " Record, **
N
NORTHERN INDIA CANAL AND DRAINAGE ACT, 1873.
A Civil Court has no jnris<HcHon to peetrain a party to wbom per-
miasioii bas been fifranted under this Act to construct a watercourse
tbrongb the land of another from sach constraction ... 74
0
OBSTRUCTION TO EXECUWON OP DECREE.
Execution of decree^^Decree for possession of immovable property ^^
r Ohstritction by person other thnn the jiidgment'debtor — Procedure^-^Civil
Procedure Oode, 1882, Section 331. — He!df that where in exeontionof a
decree for possession of immovable property a person other than the
jadflrment-debt'or cJ^ases obstraction to the delivery of possession of the
property, claiming in good faifh to be in possession ih^reof on his own
acoonnt, the Conrt execnting the decree cannot decline t-o investigate
snch claim even if subsequent to the objection the objector happens to
be temporarily ont of nctnal possensinn. The Conrt is bonnd to invest!*
gate the claim under Section 331 of the (vode of Civil Procednre ,.. 118
OCCUPANCY RIGHTS.
1 Occupancy rights — Succession i,o — An associate of a sonles* ad'>pted
son has no rioht in preference to a male collateral relMve — Punjab
Tenancy Act, 1887, Section 59. — In a dispute to the snocession to
oooapancy rights between the brothers of an adopted son who were
formally associ<ited by the latter with him in the tenancy and the
collateral heirs of the adoptive father descended from the original holder
of the land, it appeared that by virtue of the custom of the tribe
applicable as regards succession to proprietary rights the plaintiffs
alone were entitled to sncceed.
Held, that the mere formal association'^by the adopted son who died
sonless gives no right of snccession under Section 59 of the Punjab
Tenancy Act, 1887, to the brother of the adopted son in presence of the
near male sgnates of the deceased's adoptive father, and that therefore
the latter alone were entitled to succeed to the land inherited from the
adopting father ••• ... ... .,. ... 76
2. Custom-- Alienation-- Alienation of occupancy rightS'^Righi of
reversioner to restrain such alienation— Burden of proof -^ Punjab Tenancy
Act, 1887, Section 59. — Held, by the Full Bench that, where, in a suit
by a collateral of an occupancy tenant to obtain a declaration that a
certain alienation by an occupancy tenant of his occupanoy rights
wouM not bind his reversionary interests, it is proved, that the plaintiff
was entitled to nucoeed to occupancy rights on the death of the alienor
and that had the subject matter in question been a proprietary right in-
stead of a right of occupancy be could have maintained the suit, the onus
of proving a special custom that the plaintiff was not competent to
maintain his suit will lie on the person asserting the ezistenoe of such a
custom ••• ... ... , ••• ••• ... 98
3. Occupancy ri'jht -Succession to^Oommon ancestor n^t occupying
land^-^Entry in W&yb 'Uhtivz over -riding provision^ of lato-^Agreenent-^
Punjab Tenancy Act, 1887, Sections 111, lli.—Bddf that under Seoiions
INDJSX OF CIVIL OASES REPORTED IN THIS VOLUME. xxxv
The references are to the Noe, ^ven to the eases in the " Record, **
OOCUPANCy RIGHTS— (ooncld.).
PARTIES.
No.
]]1 and 112of tbePanjab Tenafioy Act, 1887, an entry in a reoord
of rights piior to 1871 providiog rales over*ridiog the provisions of law
with respect to snocession to land in which a right of oooapanoj
Babfiists shoo Id be deemed to be an agreement and enforced as such
notwithstandiog the restrictions contained in proviso to Section 59. 130
1. Suit for pre-emption — Assignment by vendee pendente ]ite«<*
Addition of assignee as co-defendant after period of limitation^
See Limitation Act, 1877, Section 22 ••« ••• ... 3
2. Assignment of property by vendees-Suit by pre-emptor against
vendee alone subsequent to the sud assignment — Pre-emptor bound to
implead tramferee or to institute fresk suit against him.
See Fte-emption •«. ••• ••• •.• ... 106
3. Striking out names of parties — Power of Oourt to strike out the name
of a co-defendant after the first hearing — Oivil Procedure Code, 1882,
Section 32. — Held, that it is not open to a Contt onder Section 32 of the
Oivil Procednre Code, 1882, to strike ont in any case the name of a
co-defendant after the first bearing of the snit.
Dammar Das v. Qokal Ohand (I. L. B., VII All, 72, F. B.) followed.,, 71
4. Civil Procedure Code, 1882, Section 368 — Death of one of several
defendants — AppHcation for substitution — Sufficient cause for not applying
within prescribed penod— Limitation Act, 1677, Section 5. — Held, that
ignorance of a defendant's death is sometimes sufficient caose for not
applying for legal representatives to be broaght on the record io the
place of the deceased within the period prescribed therefor and a plain-
tiff can scccessfally plead his iccnorance of the fact as a jastifioation for
soch delay where defendants are nnmeronsand live in a different village
from plaintiff ,.« ... ... •,. •,. 113
6. Pa/rties— Joint Hindu family-^ Suit by the managing member for
debt due to the family — Objection as to non-joinder— Joinder of other
members after period of limitations-Civil Procedure Code, 1882, Section
27.—^ snit was bronght by the manttging members of a joint Hindu
family in the name of their firm for a debt dae to the ancestral basiness.
Objection being tHken on the ground of non-joinder of other members of
the family several of whom were minorn, the plaintiffs at once admit-
ted their mistake and the members so omitted applied at once to be
joined as plaintiffs.
Held, that all the members beinc; comprised in the designation of the
firm, the omission should have been regarded as due to a bothd fide mis-
take and that under such circumstances the Court was bound to add,
under Section 27 of the Oivil Prooednre OodOy the other members of the
family as plaintiffs.
In cases where action is taken under Section 27 the period of limitation
oonnts fcom the date when the plaint is first presented to the Court .•• 149
ttxvl INDEX OF CIVIL CASES REPORTED IN THlS VOLtllil.
The references are to the Nos. given to the cases in the " Record, "
Ho.
PABTNEBSHIP.
Partnership^ Assignment of his share by a partners-pliability of
assignee on admission for debts otving by the Jlrm^Oontract Act, 1872,
Sections 140, 2ol. — Held, that the assignee of a sbare in a partDerahip
coDcern vfhen admitted into partnership by the other partners is liable
for the debts owing by the firm as originally composed, notwithstanding
the fact that the creditor may not have accepted the assignment or
absolved the assignor from liability ... ... ... 107
PLAINT.
Presentation of insufficiently stamped —
Bee Limitatiom Act, 1817 f SecHon^ ... ... ... 123
PLAINT, AMENDMENT OF.
A suit for a declaration must not be dismissed merely becanse the
plaintifE being able to seek further relief has omitted to claim it. In
snch a case the Court must allow plaintiff to amend his plaint by
asking for the fui'ther relief ... ... ... ... 128
POSSESSION.
Adverse possesion — Possession of a widow in lieu of maintenance"^
Limitation Act, 1877, Schedule II, Article I4i.— HeW, also, that the
mere fact that a widow of a pre- deceased son entitled to maintenance
from the estate of her fatber-in-lHW had been in possession of the
latter's estate for a long time would not in the absence of an
assertion of any rival rights or pretention to adverse possession by
her, raise the ordinary presumption that she had been in possef^sion
adversely to the real heir : especially where there was evidence that
she had been in possession with the consent of the distant reversioners
in lien of maintenance ... ••• ... ••• ••• 102
PRE-EMPTION.
1. Suit for pre-emption — Assignment by tendee pendente lite—
Addition of assignee as co-defendant after period of Umitatum"^ Limit"
ation.
See Limitation Act, 1877, Section 22 ... ... ... 3
2. An agreement creating right of occupancy in another person is not
a sale and cannot be the subject of pre-emption.
See Punjab Pre-emption Act, 1905, Section 4 ... ... 136
3. Applicability of Section 28 of the Punjab Pre-emption Act, 1905,
to rights already accrued-— Change of rule as to e^stence of custom no
ground against applicability.
See Punjab Pre-emption Act, 1906, Section 28 ..• 131 and 143
4. Limitation as regards rights already accrued,
^ee Punjab Pre^emption Act, l^Qh, Sections ^B,2Q ... *.. 131
iKDEX OP CIVIL OASES REPOBTED IN THIS VOLUHB. xxzvU
Thg r^fer§ne9s ar$toih4 Nos. given to the caae$ in Hhe "Beo^rd.*
PRE-ISMPTION— fcontd.).
No.
5. Vendor and purchoier'^Personal covenant of indemnity against
defective titU'^Acquisition of property by pre-emptor— Defective titte-^
Bight of pre* emptor to enforce covenant against original vendor.
See Vendor and Purchaser ••• ••• ••• ... Ml
6. Oustoimr^Tre'emptionr^Pre'ewption on sale of house property'^
Eatra ^issar BeliBamt Amritsar City'-^Puiydb Latva Act, J 872, Section
ll.'-^ Found that the castom of preemption in respect of sales of house
property based on vicinage exists in Katra Missar Beli Bam, a sub-
division of the city of Amritsar ... •• ... ••• 6
7. Oustom^^Pre^emption^^Claim to pre-emption by reason of owning
site of house <oU— 'Mahalla Khajuranwala^ JuUundur Oity. — Found,
that a CDStom of pre-emption exists in Muhalla Khajaranwala in the
city of Jnllandar under which the owner of the site has a right of
pre-emption in respect to the boildings erected on it .•• ••• 7
8. Oustom^^Pre-empUon^^Pre'emption on sale of shops^Katra
Patrangan, Amritsar Oity^^^Held, that the custom of pre-emption in
respect of eale of shops by reason of vicinage in Katra Patrangan of
the city of Amritsar bad not been established... ... ... 13
9. Custom — Pre-emptiori'^Pre-emption on sale of house property —
Eocha Ovlzari Shah, Mohalla Wachowali in the city of Lahore-^
Decree in favowr of pre'emptor^'Payment of purchase-money into
Court^^Withdrnwal of such money by vendec-^Jifffect of such withdrawal
^^Bight of vendee to maintain appeal on substantive right, — Found, that
the castom of pre-emption m respect of sales of house property
based on vicinage exists in Kucha Gnlzari Shah which is a part of
MohaUa Wachowali, a well recognised sab-division of the city of
Lahore.
Held, also, that in a pre-emption sait a vendee does not forfeit his
legal right to appeal from a decree passed against him or to proceed
with his appeal on substantive right, merely because he had with-
drawn the parchase-money paid in Court by the preemptor for his
beneut ••• ••!. ctt ••• at* ,., JQ
10. Custom'^Pre^mption^^Pre'emption on sale of residential property
lately converted into sh^ps^'Alteration in ths nature of such property^-'
Eatra Ahluwalia, Amritsar Oity. '^ Found, that the custom of pro-
emption io respect of sale of hoase property by reason of vidnage
exists in Katra Ahluwalia, Amritsar City.
Beld, that the conversion of a part of a residential hoase into shops
and their use for godovrns for a short period does not change the
character of the property as originally built and hitherto used ... 21
11. The Punjab Pre-emption Act, 1905, is a retrospective enact-
ment, and as each affects causes of action which accrued or were
acquired before it came into operation •,• „, ,,, 3q
XDCTUl
INDEX OF CIVIL CASES REPORTED IN THIS VOLUSlE.
The references are to the Noi, given to the cases in the " Record,
Ho.
PBB*BMPTION-.(coDtd.) .
12. Custom — Pre'emption—Pre'enMotion on sale of house properiy'^
Molialla Pa/rachian in the city of Mawcdpindi - Relevancy of instances
decided on admission alone. — Founds that the custom of pre-emption
in respect of sales of bouse property based on vicinage exists in
mohaXla Paracbian otherwise known as mohalla Matta or Waris
Khan in the city of Rawalpindi.
The cases in which the right is claimed and decreed on admis-
sion alone are instances of the right being exercised within the
meaning of the Evidence Act and are therefore relevant as to the
existence of the custom ••• ... ... ... 26
13. Gnstom^ Pre-emption -^Pre-envption on sale of agricultural land
on ground of vicinage —Civil Station of Amritsar. — Heldy that the
custom of pre-emption in respect of sale of agricultural land by reason
of vicinage in the Civil Station of Amritsar bad not been established ••• 27
14. Custom—Pre-emption ^Value of wajib-ul-arz cbakwar — Conflict
between earlier and later wajib-ul-ar«. — Held, that the wajtb-uUarz
chahwar of Pindi Gheb tahsil, District Rawalpindi, is not a part of the
record of rights and so has attaching to it no presumption of cor-
rectness under Section 44, Pnnjab Land Revenue Act, and that its
evidential value is small, inasmuch as it states the custom of pre-
emption which is always a hcai custom, by tribes.
Held, also^ that the value even of a genuine wajib^Uars favour-
ing relatives in the matter of pre-emption and standing unsupported
by actual proof of custom, followed by a latter wajib-ul-arz in which
the 'Maw" or Act IV of 1872 is stated to contain the rule of pre-
emption, is so small that even negative indications the otherN way are
-sufficient to reduce its value to nothing ,.. ... ... 44
16. Custom — Pre-emption — Bdght of pre-emption claimed by virtue
of ownership of house opposite but separate from that «oW— Katra
Kanhayan, Amritsar City— Burden of proof --^Punjab Laws Act, 1872,
Section 11.— HeW, that although the custom of pre-emption in respect
of sales of house property by reason of vicinage has^ been established
to prevail in Katra Kanhayan of the city of Amritsar, the plaintiff
has failed to prove the special incident whereby he as owner of a
boase opposite to the house sold but separated from it by a road or land
had a right to claim pre-emption against the vendee who was a mere
stranger.
AU Muhammad v. Kadir Bakhsh (107 P. JR., 1900)— not followed.
Uehjb Ham v. Prema (109 P. E., 1900), and Ilahi Bakhsh v. Miran
Bakhsh (68 P. E., 1906) followed ..• ... ... 47
16. Pre-emption^^Purchaser with right of pre-emption equal to
having an equal right of pre-emptic
pnrohase a person with rights inferior to those of the pre-emptor,
he is not entitled to resist the claim of such pre-6mptor to enforce his
rights even as to his sharo of the purchase.
m>^X OF CIVIL OASES REPORTED IN THIS VOLUHE. ix^
The references are to the Vos. given to the cases in the " Bicord. "
No.
PRE.BMPnON-(contd.).
Bam Nath v. Badn INarain (I. L. fi., XIX All, 148, F. B.) dissent-
ed from.
Imam Din v. Nur Khan (10 P. JR., 1884), Murad v. Mine Khan
(94 P. P., 1895), and Kesar Singh 7. Purtah Singh (66 P. P., 189$),
followed ... ... ... ... ... ... 48
17. Custom — Pre-emption — Pre-emption of existence of right in a town
in respect to agricultural land assessed to land revenue — Vna^ Hoshiarpur
District --Punjab Laws Act^ 1872, Sections 10, 11, 12.— HeW, that the
CQptofii of pre-emption cannot be presamed to exist in Una, District
Horthiarpar, inasmuch as it is a town and not a Tillage, and that
there can be no presamption as to the existence of a custom of pre-
emption in a town even in respect to assessed and caltivated land .». 51
18. Oustom^ Pre-emption — Pre-emption on sale of $Aop«— -Katra
Bamgarhian, Amritsa/r Oity— ^Punjab Laws Act, 1872, Section 11.—
Beld^ that the caotom of pre-emotion in respect of sale of shops bj
reason of vicinagn in Katra Ramgarhian of the city of Amritsar
has not been established ... ... ... ... 54
19. Pre-emption^ Purchase-money — Good faith — Punjab Laws Act,
1872, Section 16 (c).— Beld, that the fact that the consideration for
a transfer of property which is subject to right of pre-emption
consisted of old debts made up largely of interest is not in itself a
sufficient reason for finding that tHe consideration entered in the
deed of sale was not fixed in good faith.
In such a case, wher^ the vendor owns other property and is not
insolvent, and there has evidently been a conscious adjustment of
value and not merely a wiping out of debt regardless of amount in
exchange for the land, there is no natural presumption that the
price was fixed in bad faith.
Phumman Mai v. Kama (75 P. P., ^1901) and NanakChandv.
Ram Chand (68 P. P., 1901), followed.
Vir Bhan v. Mattu Shah (77 P. P., 1902), considered and dis-
tinguished ... ... ... ... ••• .. 56
20. Custom — Pre-emption — Pre-emption on sale of house property^^
Mohalla Barwala, Jagadhri, — Held, tbat the custom of pre-emption
in respect of sales of house property by reason of vicinage does prevail
in Mohalla Barwala of the town of Jagadhri ••• ... ... 67
21. Custom^Pre-emption-^Pre-emption on sale of shops ^Ksivh
Ram^garhian, Amritsar City.--Found, that the custom of pre-emption
in respect of sale of shops by reason of vicinage in Katra Bpamgarhian
of the city of Amritsar had not been established ... ... 68
22. Custom--r Pre-emption^— 'Pre-emption in respect to sale of shops
in villages-- Punfnb Pre-emptim Act, 1905, Sections 12, 18 (2).— PeW,
that snb-aection 2 of Section 1.3 of the Punjab Pre-emption Act, 190?,
is inapplicable to shops in villages. The custom of pre-emption exists
in respect to such shops subject to the provisions of Section 12 of that
J^j(t •,, .t* ••• ••• ••• ••• ^
INDEX OP CIVIL CASES REPORTED IN THIS VOLUME.
The rrferenees are to the Noa. given to the ea$e$ in the "Bword."
Na
PBBBMPTION— (oontd.).
23. Pre-emption^SaU of share of joint agricultural land ^^ ^*)^
"^8idt by anothar to-sharer of the khata— Pt«»;a6 Pre^mpHonAet, *905,
Section U.—Held, that under the provieioiiB of the Panjah EVe-emption
Act, 1905, a oo.8harer in joint undivided agricultural land has no
right of pre-emption in respect to a sale of a share of such land made
to any of the several co-sharers in the estate.
Section U deals with several pre-emptors claiming in respect of the
same propwty hut does not provide for the case of a pre-empior daun-
ing against a vendee who has equal rights with him ... ... o3
24. Oustom-^Preemption'-'Pre'emption of existence of right in r^
t^i to area converted into building wte*— Killa Ouja/r Singh-- Suburbi
^Lahore-Punjab Laws Act, lb72, Scions 10, 11. 12.-A certain area
of land was originally comprised within the village of KiUa Gujar
Singh, a suhurb of Lahore city and had been in years past agnoultural
land. Fbr some time past, however, it had been used as a «^ ^
building purposes and bad been gradually absorbed within the limito
of LiJiore oi^.
Heidi under these circumstances that the land must be regarded as
land situate in a town and that there was therefore no presumption
that the custom of pre-emption existed in respect of sale of such land.
Found upon the evidence that the plaintifE had failed to prove that
the cnstom of pre-emption existed in respect of a sale of such land «•• 90
25. Oustom^Pre-emption'^Sale of agricultural land to an agricuU
turist^Suit by a member of the alienors^ tribeSupenor right— Funjah
Pre-emption Act. 1905, Section 11.— fleW, that by virtue of Section U
of the Punjab Pre-emption Act, 1905, a member of the alienors* tribe
has a preferential right of pre-emption in respect to a sale of agricuU
tural land by a member of ^u agricultural tribe to that of a vendee
who was an agriculturist within the meaning of Section 2 of the Punjab
Land Alienation Act, l£GO ••• ••• ••• ••• 101
26. Pre-emption— Assignment of property by vendee—Suit hy pre*
- emptor against vendee done subsequent to the said assignment— Parties —
Pre-emptor bound to implead transferee or to institute fresh suit against
him^^Limitation for such aetion'-^Limitation Act. 1877, Schedule 11^
Article VO.—HeU. that where the sabject matter of a pre-emption suit
has been assigned by the original vendee before the pre-emptor had
instituted his suit the latter is not entitled to recover the property
from the transferee on the strength of a decree he obtains against the
vendee alone. In order to obtain the property from the transferee he
is bound either to implead the latter as a party to his original pre-emp-
tion suitor to institute a fresh suit within the period of limitation pres-
cribed in Article 10 of the Second Schedule of the Limitation Act, 1877 106
27. Pre'emption^-Sale of two houses adjoining one another^-'Vendee
and pre-emptor each having pnority over one house by reason of vicinage
^^Pre-empt&r not bound to acquire the whole bargain.— ffe/cl, that in a
ease of sale of two houses adjoining one another a vendee whose right
tKi)£X OF CIVIL OASES REPORTED m THIS VOLUME. xli
Th$ rrf^rinees are to the Nos. given to (he caees in the ** Beeord. *
No.
PB&EBlPnON-*(oonoId.).
of pre-emption by reaBon of coDtignitj only exieods to odo house can-
not defeat the next- door neighbour of the eecond honse on the gionrd
that by reason of his barirg rights over one boose superior to plaiDiifF
he has » right with respect to the other be use equal to those of
plaintiff.
A bargain of distiDct properties by a parson having preferential
rights only to a portion of soch bargain does not give him a right of
pre-emption as regards the simaltaneonsly pnrohased other portion.
In snob a case the pre-emptor whose rights extend over only one
lot is not bonnd to take over the bargain in its entirety ... ... 112
28. Ouslom-^Pre'emption^^Pre'emption on sale of house proper ty^^
Mohalla Wadharianf Sialkot city -^ OompenscUion for improvements made
hy vendee,-^ Found that the oostom of pre-emption in respect of sales of
boose property by reason of vicinage prevails in mohalla Wadharian
in the city of Sialkot.
Heidi that as a general role a porohaser of immovable property
sobject to the right of pre-emptioQ who has effected improvements in
spite of the pre-emptors warning not to do so, is onder no circomstances
entitled to recover their market value, bat might be allowed to
remove them if that can be done withoat injaring the property ... 122
29. Pre-emption^ Sale of a share of joint property to a stranger^ Sub"
sequent acquisition of another sharer's interest hy vendee^ Suit by a
third co-sharer with respect to first sale aUme.-^Beli^ that a person who
was at the date of sale a co-sharer in the land cannot claim pre-emption
in respect of a sale of that land as against the vendee who at the date
of sale was not a co-sharer therein but became a oo-sharer before the
plaintiff instituted his suit for pre-emption ... ... ... 124
30. Sons right to claim pre-emption on death of his father
on a cause of auction accrued to the loiter in his life-time. — Held^ by the
Foil Beooh that a right to sue for pre-emption upon a cause of action
which accrued to a person in bis life-time passes at his death
to his sucoessor who inherits the property through which the right
had acerued ... ... ... ... ... 133
31. Custom-^ Pre-emption —Knchsk BiVa Kahutarhaz^ mohalla Kahuii
Mal^ Lahore Oity^ Superiority of co-sharership over m^ere contiguity '^
Burden of proof — Punjab Laws Act, 1872, Section IL— "Found, that the
custom of pre-emption prevails in kucha Billa Kabutarbaz which is a
part of mohalla Kabuli Mai, a sub-division of the city of Lahore
for the purpose of Sectiou 1, Punjab Laws Act, 1872, and that a
oo-sharer in the property sold has a preferential right as against the
owner of an adjoining house.
The existence of a custom of pre-emption in the neighbouring
kuchas is Sufficient to prove the existeooe of such a oostom in a
kucha into which they rem, althoogh no oase of pre-emption may
liave occurred in it ... ... ... ,„ ,„ 138
ilii INDEX OF CIVIL CASES REPORTED IN TBlS VOLtHaE.
The references are to the Nos. given to the cases in ths " Record, **
No.
PRINCIPAL AND AGENT.
Person carrying on bunness for parties out of jwikdidiGn^^Uecogniscd
agent — Agent without special authority cannot sue on contract entered
into hy him on behalf of his principal'*' Civil Procedure Code, 1882,
Sections^ 87, 61. — Hcld^ that a mAtiager of a branch-cffice of an export
agency carrying on boeiness in the name of the owners of fbe firm
resident in England, nnder the instractions of a Chief Manager,
caurot be regarded a recognized agent of the firm within the
meaniag of Section 37 of the Code of Civil Prooedare, and that, in
the absence of a speciHl authority on this behalf, he cannot either
Bobscribe or verify a plaint or sne for the enforcement of a contract
entered into by him on behalf of his principals •.. .«• 109
PUBUC POLICY.
Agreements between legal practitioners and their clients making the
remnneration of the legal practitioner dependent to any extent
whatever on the result of the case in which he 19 retained are illegal
as being contrary to poblic policy ... ... ... 61, F. B.
PUNJAB iiLIENATlON OF LAND ACT, 1900.
Effect of on suits for possession of land purchased before thcU Act came
into force. —Held, that the provisions of the Panjab Alienation of •
Land Act do not apply to a sait of a vendee for the po-^session of
land, where the property was conveyed by defendant to him and the
right to claim possession had aoorued long before that Act came into
operation.
Ram Nath v. Kerori Mai (.38 P E., 190^) and Nathu Lai v. Jafar
(20 P. B., 1905) referred to ... .,. .,. ... 10
Section 9 (3).
1 . Duty of Court to refer mortgage by conditional sale to Deputy Com*
missioner if made by a member of an agricultural tribe —Refusal of Courts
to recognize a party as a member of such tribe who failed to prove his
assertion no ground for revision— Punjab Courts Actf 1884, Section 70 (I)
(o). — Althongh it is the dnty of a Court to refer a mortgage of land
by way of conditional sale to the Deputy Commissioner nnder Section
9 of the Punjab Alienation of Land Act if it was made by a member
of an agricultural tribe, but it is for the party desiring to obtain
benefit of that enactment to allege and prove that he is a member
of an agricultural tiibe. The mere assertion by a party that he
is so and the refusal of the Court to recognize him as snch does not
amount to material irregularity and is not open to revision by the
Chief Court under Section 70 (1) (a) of the Punjab Courts Act, 1884 ..* 4
2. Mortgage— Conditional sale — Reference hy Civil Court under
sub' section J5 of Section 9 of Punjab Alienation of Land Act, 1900- JBe/roaZ
of Deputy Commissioner to take action after the non-a^cceptance of his
proposal by the wx)rtgagor — Procedure for mortgagee — Regulation XVII
c/1806— Pttn/a& Alienation of Land Aci, 1900.— > A mortgage made
INDEX OP CIVIL CASES REPORTED IN THI8 VOLUME. riill
The references are to the .Vo«. given to the cases in the " Becord, "
PUNJAB ALIENATION OF LAND ACT, 1900-oonold.
before tbe oommeDoemeDtof the Punjab Alienation of Land Act by an
afj^rioaltarist of his land in whioh there was a condition intended to
operate by way of conditional sale and still current was brought by
the District Jadge, who was moved to issae a notice of foreolosare
nnder Regulation XVII of 1806 after the Act had come into force, to
the notice of the Deputy Commissioner, The mortgagee accepted the
new mortgage as proposed by the Deputy Commissioner in Hen of the
original one but . the mortgagor refused. Tbe Deputy Commissioner
thereupon decided that nothing further could be done and returned the
reference to the District Judge. Notico of foreclosure was then issued
. and after the expiration of the year of grace the mortgagee instituted
a suit for possession as owner.
Beld^ that in these circumstances the foreclosnre proceedings
nnder Regulation XVII of 1806 were not barred by the provisions
of the Punjab Alienation of Land Act, and that it was not necessary
for the Civil Court upon the institution of the suit for possession
to refer the matter again to the Deputy Commissioner under s»ib-
•ection 3 of Section 9 as the mortgage bad then ceased to exist and
the mortgagee hai become ijpso facto owner of the property by pur-
chase.
Tbe interpretation of the provisions of the Punjab Alienation
of Land Act applicable to the subject discussed by JohnstonCi J. ... 93
PUNJAB COURTS ACT, 1884.
Section 40 (5).
1. Suit to declare an alienation of land to he not binding after alienor* 8
death^'Value for purposes of further appeal.
See Appeal ... ... . ... ... 42, 60, F. B.
Skction 70 (1) (a).
See Revision,
SBOxroH 70 (I) (6).
See Revision,
Sbction 70 (h) (i).
Limitation Acty 1877, Section 12 — Applicubility of to application under
this section-^Deduction of time requisite for obtaining copies of the judg-
ment and decree of the lower Appellate Court — Sufficient cause.
See Revision ... ... ... ... ... 20, 114
Sectiom 70 (6) (iv).
Competency of appellant to question finding of fad*
See Revision ••# tti ••* •#» •** \i
xUt
INDEX OP CIVIL OASES REPORTRP IN THIS VOLtJME.
The rrferences are to the Ko$. given to the ca$es in the*' Becord, "
Ho.
PUNJAB DESCENT OF JAGIBS ACT, 1900.
Section 8 (3).
Assignment of land reventie^Liahiltty to attachment in execution of
decree.—HeU, tbat nnder olause (3) of Section 8 of the Punjab
Descent of Jagirs Act, 1900, a sub-amigomeDt of land revenne
made with the sanction of Government is as incapable of attach-
ment in execution of decree as the assignment itself.
Section 8 of the Punjab DcFcent of Jagirs Act, 1900, is not limited
to assignment solely made by Government but also includes a sub-
assignment made by the original assignees
PUNJAB LAND BEVBNUE ACT, 1877.
SiCTION 70.
Liability of fodder to attachment in execution of a decree against an
agriculturist.
See Attachment ... ... .»# •••
117
82
SiCTiOH 158 (Xril).
Common land ^Partition — Suit for declaration that land was not
suhject^^ partition*
See Jurisdiction of Civil or Revenue Court ... ... 144
PUNJAB LAWS ACT, 1872.
SicnoN 31.
See Pre-emption.
Sbction 16 (c).
See Pre-emption ... ... ... • ... ... 56
PUNJAB LIMITATION ACT, 1900.
Alienation hy m/de proprietor of ancestral land ^ Suit hy after-bom son
of such proprietor to recover possession of such land-^ Limitation — Starting
point of'^Punjah Limitation Act, 1900. — Held, thst nnder the
provisionA of the Punjab Limitation Act a suit by a son of a
male proprietor ^verned by the Customary Law of the Punjab
to recover possession of ancestral land alienated by such proprietor
during his life-time, must be instituted within twelve years from
the date on which the alienation was 'kttested by the Revenue
OflBcer in Register of mutations maintained under the Punjab Land
Revenue Act, 1887, and a son of such praprietor born after the
date of such alienation is not exempted from its operations by
Section 7 of the Indian Limitation Act, 1877, and can claim no
deduction on the ground of his minority, as when once time be^^ns
to rau DO subsequent disability to sue atops it.
INDEX Op Oim OASES REPORTED IN THIS VOLUME. xlf
7^ references are to the Noe. given to the easee in the "Beeord, **
No.
PUNJiB LIMITATION ACT, 1900 -(conoid.).
Jawala v. Hira Singh (65 P. E., 1903), and Oanpat v. Dhani Ram
(76 P. B., 1906) referred to.
Oomnda Pallai y. Thayam Mai (14 1/. L. /., 209), not appro?ed ... 108
Article 2.
A snit on the deatb of the widow of the last male proprietor
by a reversioner for possession of ancestral land alienated by the
hnsband of the widow is governed by Article lil of the Indian
Limitation Act, 1877, and not by this article ... ^ 145
PUNJAB MUNICIPAL ACT, 1891.
Sbotion 92.
And Section 95— Wredton of a new building -^Applicaiion for, including
projections on a street — Omission of Municipal Committee to pass orders
thereon within six weeks — Applicani not entitled to presume tacit sanction
provided for in sub'Section 5 of Section 92 a^ to projection or encroachment,
'^'Heldy that where sanction for (he election of a projection or
stmctnre overhanging into or encroaching npon any street which
reqaires a written permission nnder Section 95 of the Punjab
Municipal Act, 1891, is applied for and incladed in an application
for the erection or re-erection of a bnilding provided for in Section
92, and the Municipal Committee fails to pass any order within
six weeks after the receipt of a valid notice under snb«seotion
1 of Section 92, the person interested in such application is not
warranted nnder sub-section 5 of tbat section to erect snch projection
and cannot be deemed to have obtained the necessary sanction in
respect thereto. The tacit sanction provided by sub-section 5 covers
only ereotions or re^erectinns of boildings, but does not also oover
a projection or structure overhanging into |yr encroaching npon any
street or road ... ... ••• ... ... 62
SicnoH 120 E.
Bee Municipal Committee ... .•• ... ... 5g
PUNJAB PRE-EMPTION ACT, 1905.
Punjab Frc'cmption Act, l^O^-^AppUcation of, to rights accrued before
iha^ Act came into force — Retrospective enactment. — Held, that the
Punjab Pre-emption Act, II of 1905, is a retrospective enactment,
and as such affects causes of action which accrued or were acqaired
before it came into operation ... ... .. ... 30
Section 4.
And Section 3 (5) — Pre emption^Agreem^nt creating fight of
occupancy ^^Safe^^Perpettud lease "^Held, that an agreement by which
a landowner created a right of occapancy in another person in
oonsideration of money payment plus annual rent and serrioes and
jlyi INDEX OF CIVIL CASES REPORTED I» THIS VOLUME.
7he references are to the Not, given to the cases in the " Becord.
No.
PUNJAB PRE-EMPTION ACT, 1905— (concld.). , .
v?hereby a rij<ht of reversion on tbe happening of a certain event
was expresRly stipulated for is not ft sale within the meaning of
Sections 3 (5) and 4 of the Punjab Pre-emption Act, 1905, and
cannot therefore be the sabjecfc of pre-emption. ..• ... 136
Section 11.
See Pre-emption ..• ••• — ••• — W^
Section 12.
Oostom of pre-emption exists in respect to shops in villafres snbject
to the profisions of this section ... ... ... ... ^
Section 13 (2),
This section is inappUcabe to shops in villages .•. ••• 80
Section 14.
This section deals with several pre-emptors claiming in respect
of the pame property bnt does not provide for the case of a
pre-emptor claiming against a vendee who has equal rights
with him ... ... ••• ••• ••• ••• 83
Section 28.
1. This is not a substantive section, it only provides a period
of one year from the lUh May 1905 during which, in spit© of
the shorter period provided by Section 29, parties might exercise
rights of preemption which had already aoorned to them and
which might be barred under the. latter section ... ... 131
2. It applies to every suit where the right to sue for pre-emption
bad not expired at the date of the commencement of the Act.
The fact that where under the old Act a special onstom for the
enforcement of a right was required to be sabstantiated by a
plaintiff, the new Act relieves him of the burden of proving that
custom and confers those rights on him by Statute, has no
effect as on the applicability of the section to rights which were not
barred by the law of limitation at its c^iumencement ... 143
Section 29.
This is the substantive section Gxiog the period of limitation, and
by Section 2 (3) it applies to every claim to the right of pre-emption
whether that right has accrued before or after iu commencement ... 131
PUNJAB TENANCY ACT, 1887.
SBonoN 4 (1).
Ohcur-rnumhin land outride the abadi and attached to a well npon
which khurlis are bailt and Miusa is stacked is ** land'" within the
n^eaning of this clause .#• ••• .,. ... \^
INDEX OF CIVIL CASES REPORTED IN THIS VOLUME. xlvii
The references are to the No». given to the cases in the " Becord, "
No.
PUNJAB TENANCY ACT, 1887- (conoid.).
SlOTIGN 69.
See Occupancy Bdghts... ... ... ... •«• 76
1. Right of reversioner to restrain alienaHon of occupancy rights.
See Occupancy Bights .i.- ... ... ... 98
2. And Sections 111, 112'^ Sur^s-sion to occupancy rights — Common
ancestor not occupying land^ Entry in Wajib'-nl-arz over*riding provisions of
law.
See Occupancy Eights ... ... ... i,, ^^ 130
Section 77 (3) (i).
Common land — Partition — Suit for declaration that land teas not suhject
toyfarUtion.
See Jurisdictinih of Civil or lievenue Court ... ,„ 144
SEcriON 77 (3) (ij.
Kutihi kamini is a ** village cess " witbia tbe meaning of ibis seoiion 95
Section 77 (3) (n).
See Jurisdiction of Civil or Eevenue Court , 41
Skction 100.
Reference to Chief Court — Validation of proceedings where there had been
no mistake as to j^irisdiction.^^Where a cotnniissioner, on appeal, in a suit
wbiob as framed was cognizable by a Revenue Conrt, after coming to the
conclasion tbat tbe plaintiff bad failed to substantiate bis claim as laid
down, bat tbat on tbe facts as proved be could bave brongbt a nuit
on a different canse of aotioa wbiob would be cognizable by a Civil
Court, referred tbe case to tbe Gbief Court \iiitb a sugf^estion tbat tbe
decree of tbe Assistant Collector raigbt bo registered as tbe decree of
tbe District Judge : held, tbat the suit as framed being exclusively cog-
■ niz'able by a Revenue Court, and there baving been no mistake as to
jurisdiction the reference did not fall within thesoope * of Section 100
of tbe Punjab Tenancy Act, and consetjoently the Chief Court was not
competent to order tbe decree of tbe Assistant Collector to be registered
as that of tbe District Judge ... ... ... ... 45
QUESTION OF FACT.
See Revision ... ... ... jg
QUESTIOxN OF LAW.
SfBeviiion »„ ... ... ,„ ^ ifl
xiTiii INDfeX OF CtVIL CASES EXPORTED W TtaS VOLUlffe.
The references are to the Noa, given to the eases in the " Beeord, '
E
RAILWAYS ACT, 1890.
SBcnoir 76 (1).
Passenger's Ivggmge hooked ly Ivgqage von'^lxaltlity (f aSatluay
Con'pony OS caf tier of articles of special ralue.^^Beldfihni a Bailway
Company is n( t liable for tbe loss of a box coDtaining gold asd silver
omameuts and GovemmeBt Corrency Notes of tbe value of over Ba.
100 wbicb bad been entrasted to it for convejance in ibe Inggage vau
by a passenger wbo bad not made the declaration prescribed by
Section 75 (I) of tbe Indian .Railways Act, 1890.
The terms '' parcel " or ^' package " in Section 75 (1) indaded a
passenger's Inggage ... ... ... ••• ... 73
REDEMPTION.
See Equity of Bedemption.
Mortgagee obtaining money decree against his mortgagor not allowci to
purchase equity of redemption in the property mortgaged to him.
Qe% Equity of Redemption ... ... ... ,.. 2
BEGISTHATION act, 1877.
Sbction 17 (6) (0-
For tbe purposes of Section 525 of tbe Code of Civil Procednre
an awsrd of arbitrators privately appointed by the parties even
if it effects paitition of joint immovable property *of over Bs. 100
in valne and is signed by tbe p^irties to signify their acceptance of the
same does not reqaire registration and can be filed and made a rule of
Conrt ... ... ••. ... ... ... o4
REGULATION VII OF 1901.
Section 87 A.
Jarisdiction of Chief Conrt to hear Civil appeals transferred bj
Judicial Commissioner of North- West Frontier Province.
8te Chief Court ... ... ... .^ ... SO
REGULATION I OF 1906.
See Chief Court ... ... ... ... 50
RELIGIOUS INSTITUTION.
Beligioua »fw^t7«</on— Mabant— Stit7 relating to appointment and
removal of-^Eight to sue without obtaining sanction-- Civil Procedure
Code^ 1882, Section 539. — Held^ tbat a sait for the removal of the
iocnmbent mahant of a dharmsala who has misbehaved as mahant and
misused tbe funds of tbe institution and for the appointment of tbe
plaintiff in his place falls within the scope of Ueotion 539 of the Code of
Civil Procedure and is not maintainable without obtaining previous
^^ sanction of tbe Collector to tbe institution of such suit ... 78
JMBISS OF CIVIL OABBS RBPCtflTED IN THIS VOLUHE. iiix
The n/0r$ne$a are to the Nom. given to the eaeee in the ** Record, **
No.
RELINQUISHMENT OF OB OMISSION TO SUB FOR PORTION OF CLAIM.
See Oauee of Action ... ..• «.. ... 28
BE8 JUDICATA.
1. 8mt by mortgagor far redemption^ Diemusal of suit for default^
Suhiequent euit for the same object — Maintainability of stick suit*
See Civil Procedure Code, 1882, Bedim 102 ... ... 43
2. Bee jndieata— *^beni»^oii 5^ widow — Suit ly reversioner to have
mteh mtienation declared nuU and void^ Compromise of such suit between
ihe widow in possession and the reversioner-^Subsequent suit by the son of
'Swdh reversioner^ Kstoppel^^W here a persoD entitled to object to an
ftlieofition made by a widow brongHfc a snifc to have snob alienatiuo
declared nail and void and nitimately entered into a compromise in
Eod faith with the widow held that be and his saoccssors io title were
and by it and that a similar suit by the son of snob reversioner
iKUi b^pried by the rale of r6«jt4(^'ca^a ... ... ... 37
3. Bes jndioata—StitV /or declaration of ownership of land by fmr-
ohaee^^IHsmissal of suit on merits —Subsequent suit for possession by same
pMniiff as heir-^bifferent causes of action— Civil Procedure Code, 1882,
Section 13.— JTeM, that the dismissal of a sait for a declaration that
the plaintiff was the sole owner in posaession of certain land by
porobase is not 91M jWtccifa in a sabseqaent suit broaght for the
popeession of the same property en the groand that the plaintiff was
entitled to the said land not as an owner but as heir and adopted son
of the last male owner innsmach as his title as an heir being an
incopsietent claim conld no^ have formed an alternative giound of
attaeic in. the former sait without creating confasion.
Althongh a party is bound to pat forward all grounds of attack as
have reference to the same oaase of action, bat where several
independent ffroands are available to him he is not boand to anite them
illl.inoiiesait ... ... ... ... ... 55
'4. Bee jodicata^Mo^er directly and substantially in issue ^
f^hmeeeBeary (hiing'^Pro formft defendants -Civil Proqedute Code, 1882,
Setiion 13.— "A** died leaving foar sons and six daoghterp. One of the
-fosr sona^bronght a f^nit impleading all his brothers and sisters for
partition and possession of a one-fonrth share in the deceased's
property, first by enforcement of sn sward against his brothers
and sisters, the latter hsvinj?, according to his contention,
oonsentHi to the ref»'rence, and fniling th«t for partition (a) under a
oUHtoni by which daaghters wc e ezcladed from inheritance and (5), if
no cOHtom was proved, in accoidH nee with the personal law of the
parties. TheOonrt found that the sons were bound by the award, bat
that the daaghters had been duped into signing an agoeement consent-
ing to the reference and were therefore not bound by the avrard. It
then took np the qoestion of the rights of the daughters, and eame to
INDEX OF CIVIL CASES REPORTED IN THIS VOLUME.
The references are to the Nos. given to the casee in the ** Record,
Ko.
RES JUDICATA— (conoid.).
tbe ooDclasion tYiat ibej were exolnded by ouAtom, and oonseqaentlj,
their coDseDt to the reference being immaterial, decreed substantially
in accordance with the award.
No declaration against the daughters was prayed for or
given im the decree. No part of the property in dispute was
alleged or found to be in their possession, nor were they required by
the decree to surrender any. Subsequently four out of the six daagbtera
instituted separate suits for possession by partition of their shares of
the estate left by their deceased father in accordance with Mnhamma-
dan Law. The defence pleaded that tbe suit was res judicata under the
decree in the preTious cause, inasmuch as it was thereby found that
daughters were excluded by castom, and as they did not^ appeal from
that adjudication it had become final.
Held by a majority (Johnstone, J. dissenting) that on the facts as
found the suit was not barred either under Section 13 of the Code of
Civil Procedure or on the general principles of res judicata, the issae
relating to daughters' right in the former jodgment being unneces-
sary for tbe decision of th(^ case on the gronnd on which it proceeded,
VIZ; the award beint; binding on tbe brothers who had all the property
in snit in their possession, and not being raised by the pleadings,
such rights not being ia qnestion in tbe claim upon the award, but by
the Court gratuitoasly after it had held the award to be binding on
the brothers ; and that the finding on it could consequently not be
pleaded as a bar to the present suit.
Held^ alsOf that a party setting up a plea of res judicata is bound to
establish it, and the Court competent to examine, whether tbe point
was necessary for the decision of tbe case apon the ground npon
which the final decision ultimately proceeded and was directly in
issue in the former litigation ... ... 57
6. Bes judicata'^Oourt of jurisdiction competent to try subseqvmU
suit^Oivtl Procedure Code, 1881, Section 1.3.— HcW, that for the
purposes of Section 13 of tbe Code of Ciyil Procedure, the com-
petency of a Court to try such 8ub5;equent suit or the suit in which
such issue has been subsequently raised as compared with another is
not affected by the circumstance that in one case an appeal lies io the
first instance to the Divisional Court and from that Court to the Cbi^f
Court, and in the other directly to the Chief Conrt, and therefore,
the decree in one operates as res judicata in the other ... ... Ill
BEYERSIONEB.
See Assignment of Ohose in Actii/n ,,. ... ... 11
See Custom-^AliencUion.
See Hindu Law — Alienations
See Occf*panct/ rights.
tSDisX OF otva cAsfis BtePORTtei) IN THts volUmIe. U
27m references an to th^ Kos, given to the caees in the ** Record, *'
BBVISION.
Ho.
1. Oivil Procedure Oode, 1882, SecHofis 462, 506 ^Arbitration--'
Award --Decree on judgment in ncco'd*tncevnth an award — Reference hy
guardian ad litem o/ 'i miliar without leave of Court — Admissibility of
objection denying validity of reference on revision — Mortgage — Conditional
sale — Duty of Court to refer to Deputy Commissioner if made by a
member of an agricultural tribe — Punjab Alienation of Land Ad^ IdOO^
Section 9^^Befusal of Court to recog^iize a party as a me*nber of such tribe
who failed to prove his assertion no ground for revision — Punjab Courts
Act^ 1884, Sectio7i 70 (1) (ay-^Beld, that a decree pa-ssediu aooordanoe
with an award made Under Chapter XXXVII of the Oode of Civil
Procedure, 1882, od a reference to arbitration in the course of a suit
cannot be set aside on revision on the ground that some of the
defendants being minors reference could not be made by their
guardians ad litem without obtaining express sanction of the Court
under Section 462, especially where the objection was neither raised
in the Court below nor entered in the objections filed against the
award within the period pi escribed under Article 158 of the
Limitation Act.
Lakshmana Clietti v. Chrinathamhi Chetti (L L. E., XXIV dlad,^
326), Ezra v. Dina (37 P B., 1895), Malak Sorab v. Anokh Bai (18 P.
B., 1891, F. B.) and Hardeo Sahai v, Oouri Shankar (7. L. E., XXVIPt
2fZZ., 85) referred to.
Although it ifl the doty of a Court to refer a mortgage of land by
way of conditional sale to the Deputy Commissioner under Section 9 of
the Punjab Alienation of Land Act if it was made by a member of an
Bgrioultural tribe, but it is for the party desiring to obtain benefit of
that enactment to allege and prove that he is a member of an agrioul*
tural tribe. The mere assertion by a party that he is so and the refusal
of the Court to recognize him as such does not amount to material
irregularity and is not open to revision by the Chief Court under 8eo»
tion 70 (I) (a) of the Punjab Courts Act, 1884 ... .«. 4
2. Power of Chief Court to revise jifidings on facts relating to question
of jurisdictian.'^^Eeldt also^ that the Chief Court is fully competent to
consider oh the revision side the correctness of an Appellate Court's
findings on the facts relative to the question of jurisdiction of that
Court to entertain the appeal.
Eoe6t*cfc V. Henimon (54 P. E., 1896), referred to ... ... 12
3. Bevision — Competency of appellant to question finding of fact —
Punjah Courts Act, 1884, Section 70 (2) (6) (iv). — When an application
has been admitted under Section 70 (2) (6) (iv) of the Punjab Courts
Act, 1884, it is not opeu to the appellant to question either the validity
or the soundness of the findings of facts arrived at by the Lower
Appellate Court.
The question that whether a deed of transfer which on the face of
it purported to be one of mortgage was in reality what it purported
to be or a sale is a question of fact and not of law ... .•. )9
lii INDEX OF dVIL OASES REPORTED TS THIB VOLtlffi.
The references are to the Kos. given to the ca$e$ in the " Record. '
Ho.
BBVI8I0N— (oonfcd.).
4. Ap^icabiiity of Stctton 12 of Indian Lifrriktthn^ M^ 1877» lo
applicaJtxm under Section 7i) (&) of HheFunjaJb'Cour^ Act\ ISOl JMAu-
^icw of h'lTie requisite for obtaining copies of thejudgntent cmd dS9M»tifiit^
Loicer Appellate Court — Sufficient cause — Punjab Cowrie Act^ \SSl^ ff9S$km
70 (b) (i)--Held, Ihafc Section 12 of the Litnitafion Act, 18?7, does «t
apply in compating the periods of Hmitatioiis prescribed foran 8pp)ic*
fttion nnder Section 70 (b) of the Punjab Courts Act, 18M) aUd^ t^M^
fore the time requisite for obtaining* copies of the judgteettt and' de0M9o
of the Lower Appellate Coart cannot be deducted in oompoling^tlie
periods laid down by dftttse (t) of Section 70 (b) of that Act.
AsM aZfo, that the time spent in obtaining soch copies whiob^ aa^a
faet were received by the petitioner long before the expiry <of the
prcfitcribed period is not a nnffioient caose within the meaning of Saotioa
70 (&) (i^*) for admitting an Hpplioation after the ordinaty period of
limitation has expired... ... ... ... ... 90
5. Beviston—Powffr of Chief Court to interfere on questions other than
in respect of which the application was admitted— Punjab Courts Act, 18M,
SecUon.lO (1) (6) v^ii?).— H^fc^ that nnder clanse (m) of the proTiioto
Section 70 (I) (6) of the Punjab Goarts Act, 1884, the Chief Court
cannot exercise its revistonal powers except in regard tothose^poiiito
in respect of which the application under Section 70 (1) (6) baa
been admitted ... ... ... ... «.• 65
6. A complete misapprehension of the powers of an eieootuig Govt
and the disregard of the imperative rules of procednre reBoUiag for
instance in setting aside a sale in execution of a money deoBie
where no objectiou to the 8ale had been raised under Section, 311,tiB
a tnatarial iiregularity within the meaning of clause (A) of Sootioa
70 (1) of the Punjab Courts Act, 1884 .., ... .^ 92
7. Bevision'^ Dismissal of application for defauU^^Pdwef of Omt^ to
restore such application Sufficient causc^Civil Procedwre Vdie^ I8B2,
Sectims lOS, 647.— HeZ(i, that Section 103 of the Code of Oiya
Procednre applies by virtue of the provisions of Section 647 to an
application for revision dismissed for the default of the petYtioAe^y
and that the non-appearance of the counsel on behalf of hpaarda*
nashin lady owing to an unusual combinatiou cf rircamataneea, ir a
sufficient cause for setting aside the default.
Court of Wards v. Fatteh Singh (109 P. E., 1882), dissented from ... 97
8. Section 12 of the Limitation Act, 1877, applies to applicatfoiis
under Section 70 (6) of the Punjab Courts Act, 1884, and that tBtt^*
fore^ the time reqaxsite for obtuiniDg copies of the judgmei^ and
decree of the Lower Appellate Court is to be excluded in compatfttj;
thejiferiod laid dowu by claasc (i) of Section^ 70(5) of that Aot ... 114
9. Finding on one issue even when suffi^ent does not preclude a Court
from determining the other issues raised-^ EevisioH-^Intefferesice toith
exercise of jurisdietioon^ Ctvil Proasd/ure Code^ 1882^ Sectimp SM
'-^Punjab Courts Act, 1884, Section 70.^^Eeld, in a case irhe>» a
tSOlSt OlHiitftL CJS^SS Iftfi^ORTlSf)' tR 'tttS Votimft.
The rtf$renc$$ are tv r. ■: ^oe, given to the caee^ ^ the " Beeord, *
■ I
BBVISIQH*(dg^Mi).
ir«^
Coart io the Bxefioim of tlie. diftereiion couftiriud on it by
Section 204 of the Code of Civil Procedare had proceeded to
frtte" ar d«ofsi^a< qj^oh* »U fhe iBftoe^ f»nD«d- bj it^ tti^^ag&f its
ftttdiit^if'on: a p»i<tf<Milai^ i^etie wim raflleieiit foi^tlie dlspemil St' ike
case 96 far as the Court itself was oowseroed that in addpHog
SQch'a ooQfse thi^Ootrt had not aetei either with^ materi'al irregularity
or itt eso6M* of its jorisdielffOh or wittboiit' jttriedloiioo within tbe
meaning of Section 70 of tbe Panjab Coivrts Act, and ite mrder was
conseqiaenyy not snbjeot to revisioa aader that section ••• ••• 121
10. Defect of juriidietiofi^-'Sevtston^^Punjab Courts Act^ 1884,
Section 70 (a).'^Beld' ihtii where it appeHrs that an inferior CoQrt
has heard an appeal which was entertainable by a saperior Coatt, the
Chief Cbart is not bound to interfere under its revisioniil powers
unless failure of justice has resulted from such dufect ..* ... 125
BIOBT OK JkPSSM^
FrBf^ampiww^ Decree' in favor of pre- emptor — Poyvtent of purchcue
momff into Omift-*WUhdrawol of such money by vendee^ Effect of such
wiOidrtmQl''^tgU of vendee. to^muintain appeal on substantive right.
Safr Ag/fcoi ••• ... ••• ^ ••« ••• 16
BIGHT OrSUBT.
1. Pbmr fif a rewer^met out of pomeeaien io aseign^ hie interest after
devolution of inheritance— IUghi> of asngnee to swe fot poe^es^ion.
See asiigftvtent ••• ••• ••• ••• ••• **
2. JtwQfd cf arMtfUhr$ set aside as void-^BigU to institute reguhr
smi to enforce. such award,
See.CivH Procedure Code, 1884, .Section 523 ... ••• 19
3. Settlement on behalf of a Muhammadan minor' by hie br^hen^^
Competency of minor to repudiate through a nesst friend swh set^emsnt
without festering other party tt position he occupied a% time of ammtgemmt
'^Maintainahihty of suit
See Jftnor ... ••• ••• ••• ••• ^*
4. BsUgious tti«Wt*^io>t— Mabant— Suti relating to appointment and
removal of— Bight to sue without obtaining sa/nction— Civil FroiMure
Code. 1882. Seetien 639.-HeW that a suit for the removal of the
incumbent waAan^ of a (ttamwato who has misbehaYed as woAon* Md
misused the funds of the institution and ler the app(rfiitmeat> o# w
LJilBlit in hiT Bfeotf falb within the scope of Section 539 of the Coda
ofTdiytt^ Pntoenae and is not maintainable without obtaitiing
preyious SMtMes^ tha^Golleotor to the insetutteur tft tmfiltstAi 78
liT IKD&I Ot CIVIL OASfiS fifiPORllSD IK ^TBIS VOLtJk&.
^he rrference$ are to the A'l ^ given to the casee in the " Record. **
BIGHT OF SUIT-(conold.).'
Fa
5. In matters of alienation a widow in posseraion of self^acquired
immovable property of her hasband is subject to the same reetriotiona
as if the property were anceHtral and the existence of a d*ingt«ter
does not preclude a nenv reversioner, sach hs a first consio, from
Contesting an alienation effected by sach a widow ... ... 103
6. Ooiiseitt to action against public charities-^ Court cannot entertain
suit asking relief 8 not i^iduded in the consent-- Givil Procedure Code^
1882, Section 639.— fleW, that the provisions of Section 539 of the
Code of Civil Procedure are express and are to bo strictly adhered to,
and a Court cannot entertain an action unless it is limited to mat-
ters included in the sanction of the Collector.
An action for the removal of a mahafU and that the public be given
authority to make a new appointment cannot, therefore, be entertained
where the sanction granted was to remove the present maJiant and to
appgint a new mahant in his place, as the subject of the suit was for
appoiotmeut by the public, whereas the Collector's consent was for an
appointment by the Court ... ... ... ... 110
7. Bight of suit^-Party without right or interest in suhject matter -^
Madntainahility ofeuit by— Unnecessary trial of issues concerning private
affairs of parties. — A testator governed by Hindu Law bequeathed all
his real and personal estate in the absence of a son to his widow for
life, and after her death to her daughrer's son and in default of such
issue it was to revert absolutely to the first taker and expressly desired
that neither his brother nor any of his &mily should under any circum-
stances inherit or interfere. The testator died and left surviving him
his widow and a minor dauffhter. Some five months later the widow
announced the birth to her of a posthumous son. Thereupon the brother
of the testator sued for a declaration that the alleged newly bom child
was not the lawful son of the testator.
Heldt that as by the terms of the will the plaintiff had no due right
or interest of any kind in the estate of the testator he being neither an .
immediate nor a prospective reversioner, the suit was not maintainable.
In such circumstances the unnecessary trial of issues concerning
private affairs of pvties should bo avoided, and the Courts must see
that unscrupulous persons in plaintiff's position are not allowed to
unnecessarily drag into publicity private matters with which the oase
is not directly concerned. In the present case there was no occasion
for taking evidence oo the points whether the boy was a supposititious
child, or whether the testator and his wife had the capacity to beget a
child.
Rule of construction of Hindu wills considered ... ... 139
S
SALE IN EXECUTION OP DECREE.
1. It is illegal for a Court to set aside a sale by auction under a
< decree and then without further proclamation and a further regular sale
! to sell the property to the decreo-holder or any other person .«. 25
INDEX OF CIVIL OASES REPORTED IN THIS VOLUME. U
Th4 rtfereneet are to ihe No$, given to the eaeee in the '* Beeord. **
No.
SALE IN BXBOLTTION OF DBOBEB— (oonold.).
2. Sale in execution of decree — Effect of sale when not set aside either
under Section 310 -4 or 311— Ocwipe^^ncy of executing Court to dUow time
to judgment'dehtdr to raise amount of decree after such sale^^Civil Proce*
dure Oodcy 1882, Sections 305, 310 A^ 'SlL^Beld^ that where immovaUe
property has once been sold in exeoation of a money decree the execat-
ing Ooort has no authority to allow time to the jodgment-debtor to *
enable him to raiae the amount of the decree by a private transfer of
the property or otherwise as provided by Section 305 of the Code of
Civil Procedure ; and, if such a sale is not set aside eitlier under Section
3!0 A or 311 of the Code, the Court has no option but to confirm the
sale as provided by Section 312 ... ... ... ••• 92
SMALL CAUSE COURTS ACT, 1887.
Schedule II, Article 35 (g).
See SmaU Gause Oourtf Jurisdiction of ... ... ,„ 125
SMALL CAUSE COURr, JURISDICTION OF.
1. • Suit for damages for breach or betrothal contract-^ Small Cause
Courts Acty 1837, Schedule II, Article 35 {g).—Beld, that a sait for
damages for breach of a betrothal contract comes within clause (jg) of
Article 35 of the second schedule to the Provincial Small Cause Courts
Act, and as each is excepted from the jurisdiction of a Conrt of Small
0*0868 ... ... ... ... ,„ ... 126
2. Atta/'hment of im moveable property befo re judg m ent^Com>pensaiion
for erroneous attachment -Civil Procedure Code, 1882, Section 491-^
Applicability of to Small Caune Otmrts-^Held, that a Court of Small
Causes ban no jurisdiction to award compeosarion under Section 491,
Civil Procddurd Co«ie, for an etroueous atttchmont before jadgraent of
immoveable property as it is excepted by the Second Schedule to the
Code from attachment by such a Court ... ,„ ,,, 77
SPECIFIC RELIEF ACT, 1877.
• SiorroN 42. .
See Declaratory Decree, Suit for.
STAY OF EXECUTION.
. See Execution of Decree,
SUCCESSION CERTIFICATE ACT.
Sbotion 7. .
Succession certiJicate^^Eival claimants -^ Competency of Court to refuse
to either claimant —Procedure -Succession Certificate Act, 1?89, Seciion 7.
-^Held that under Section 7 of tlie Succepsion Certificate Act, 1889, a
^ District Court is bo and if th^ro ara more applicants than one to
determine with nil convenient speed to which of the rival olaimants a
cortificate should be granted, taking from the grantee such security as
may appear neoessiiry. .
,M iHHmOP<iniLi3AaBMWMBB»^-»^
The ftfennm arBtoih$ ifu^^imn te eh« com^ ^ "JJ^oord.'
SU00B8SI0N CBRTIPICATB ACT-(ooncld.).
It 18 B6t oompatoftt to^roch Cpwjito refuse tx> ftdin4«qfttB mt^j be-
i)aoae4if&oaU q*eeiioi»of Uw or £aotM?w or .the matter Jflui ^wua m
aMffularsuit
. SUIT.
TBU8T.
Vo.
137
Date of institution of>
SeeU^MionActflBn,8$dioni ... • ^23
Suit hy settUr against trustee on failure of the d^eet c/ a imst'iorecover
trust funds for himself^ Starting ;f!mt of iimtatifi».
See Limitation Act, 1877, Section 10 ... 499
ST
VALUATION OF SUIT.
1. Suit to declare an alienation of land to be not binding a^er oKepor V
death^Value for purpose of further appeal^Punjdb Courts 4ct, 1884,
Section 40 (6).
,See Jlppeal ... ... ...* •• ••• *•
2. Suit to declare an alietuUion ofkmd t&he not "binHing after (!MeMor\
^ieath-^ Value for purpose of further appedl^^Tunjdb Vburts 4tft 1884,
Btetion 40 ib).
See Appeal ... ••• ••• ••• ••• W
VENDOR AND PUEOHASEB.
1 . Purchaser bound to pay interest on purchas^emoney withheld by him.
See Interest ... ... . ••• .•• •- 148
2. Vendor and purchasers-Personal covenant of indemni^ against
defective title^Acquisiiion if property hypre-mif^or^'-^^ettive tiiU^
Bight of pre-emptor tp enforce covenant against origiswd smdor.'^itfidt
that a personal oovenant of indemnitj in a deed of sale nnder which a
vendor guarantees his title in the property conveyed solely to * the
origin*! vendee and in which he -ajrrees to indainnify,tb<Ht .vendee if
difltorbed by adverse claims cannot be held to .en a ft- for the jm^^jiiot
a pre-emptor whosacoeeds in obtaining a decree for . pos^etmioD by
« pre-emption... ... ••• ••• ••• ••• *4i
VtLlAGB OBSS- ^
Kudhi kamini is a Tillage oess within the mewitag ttfflectfoii*W t?)^ ;> ... 95
INDEX OP CIVIL CASES RfiPOfiTED IN tBB VOLtJMfi. ItU
The rrferencM are to the If as, given to the caees in th$ " Beeord, *'
No.
W
WAJIB-UL-ABZ.
WILL.
Valtie of ohakwar wajib-al-arz— Oo^^^/c^ between earlier and UUet
wajib-nl-arz.
See Pre-emption ... ... ... ... ... 44
WiVr^Bequest to trustees mth a direction that it should he used for
charitahle purposes^^Uneertainty of the objects ^Bequest void.^^BM
that a beqaest of property by a Maliammadan testator for each
charitable objects as tlie trastees sboold think proper or for some such
pnrpose as that the testator should obt^iQ eteroal bliss therefrom does
not create a trust as tite subject matter is not clearly or definitely indi-
cated and the trust is therefore void by reason of uncertainty of its object 75
CRIMINAL JUDGMENTS,
1907.
A TABLE
OF TEffi
NAMES OF ORtMINAL OASES REPOBTED IN WIS VOLUME,
Name of Case.
No.
:-*
Pago.
J?L
Abdulla Khan v, Gunda
AmiB Chand v. King Emperor ...
3
...
...
...
7
12
18
48
Basant Ram v. King Emperor
Bhola V. „ „
O
.••
.••
...
la
8
49
21
Chirag-ud*din v. King Emperor
a-
...
.••
...
2
7
Qopal Sahai V. King Emperor ...
li
...
...
...
3
8
Hamam v. King Emperor
J
• •*
...
...
17
57
Jaswani Rai v. King Emperor
K
...
• t<
...
10
23
KbolaRami;. King Emperor ...
King Emperor v. Fazal Din ...
,, „ v.HiraSing^ ...
„ v. Mercer
• *•
• ••
...
...
4
1
11
6
13
1
40
...
• •t
...
16
56
Radha Singh v. King Emperor ...
Ram Singh v. „ »,
s
•••
• ••
...
...
6
18
17
68
8hor Singh t;. King Emperor ...
Snndar v. „ „
• ••
• *•
...
• •
...
14
9
£3
29
Walidad v. King Emperor
...
••'
...
...
15
S4
Table of Cases cited-
(Criminal).
Name of Ca«e.
No.
Page.
A.
Abdul Razak v. QueeD- Empress, 2 P. R.. 1895
Alia Bakhsh r. Empress, 9 P. H., 1687, Or.
1
51
4
56
C
Grownv.KashiBam, 2P. R., 1875, Cr. ...
„ V. Kuria, 18 V. R., 1876, Cr.
4
4
13
13
ID
Dewan Chand v. Queen-Empress, 2 P. R., 1899, Cr. ...
7
20
ID
Emperor v, Dhimum Kasee, I. L. R., IX Cal.. 53
Empress v. Dwarka Prasad, 1. L. R., VI Cal , 97
Essan Chunder Dntl v. Babu Pramialh Chowdhry, W. R. F. B. R., 71
1
1
I
3
4
3
O-
Ghulam Khan v. Empress, 14 P. E., 1887 ...
Gurditta MaU v. Emperor, 10 P. R., 1902, Cr.
4
16
13
67
H
Haycraft v. Oreasy, 2 East, 92 ...
1
8
J -
Jagomobau Pal v. Ram Kumar Qope, I. L. R., XXVIII Cal., 416 ...
7
20
TZ
Kedar Nath Chatterji v. King-Emperor, 5 Cal., W. N., 897
Kotamraju Venkalarayadu v. Empress, 1, L. R., XXVIII Mad , 00...
1
1
3
5
•
Ladhari Singh v. Sukhdeo Narain Singh, I. L. R., XXVII Cal., 892
7
20
-hJlL
Mangal Haldar v. Naimuddi Fakir, 6 C. W. N.. 101 ...
Mohesh aowai v. Narain Beg, I. L. R.. XXVII Cal., 981-
Mojey V Queen- Empress, I. L. R , XVII Cal, 606 ...
Muthiah Chelti v. Emperor, I. L. R., XXIX Mad., 190
7
7
1
6
20
20
3
18
tABLB Of CASKS CITED— CBIinHAL—((X>ncM.).
Name of Case.
No,
Page.
P
Patel Pand Chand v. Ahmadabad Municipality, 1. L. R., XXll Bom., 235
Paran Mul v. King-Emperor, 26 P. R^ 1905, Cr.
8
3
21
11
Q,
Queen V. Bums, 16 C. 0. Cas., 355
Queen-Empress v. Appasami, L L. R., XTI Mad., 151
„ „ V. Bal Gangadhar Tilak, I. L. R.. XXII Bom., 112
„ „ V. Ganga Uam, L L. R . Vm All., 38
„ V. Gobmd Chandra Das. 1 L. R., XX Cal.. 520 ...
„ V. Muhammad Saeed Khan, 1 L. B., XXI All., 113
;, „ V. Soshi Bhushan, I. L. i;., XV All , 210
'„ „ V. Subauna, I. L. R., VIIMad, 197 ...
„ „ V. Sundar bin^, I. L. tt., XT! All., 595
10
2
7
I
1
4
8
86
4
86
7
20
6
4
18
21
. '^
fiegina v. Sullivan, 11 C. C. Cas., 44
„ v. Toshack, 4 C. 0. Cas., 38
10
1
44
6
S
Subrahmani Ayyar v. King-Emperor, I. L. B., XXV Mad., 61 P. C.
Surya Hariani v. „ „ 6 Cal., W. N., 295
3
2
10
8
•w
Wazirullah v. Crown, 1 P. B., 1906, Cr. ...
8
11
1
Appblutb S»b
(Bbirf (iantt of tljt ^m\ab.
CMMINAL JUDGMENTS
Nol.
Before Mr. Justice Beid, Chief Judge, and Mr. Justice
Robertson.
KING-EMPBROR,— APPELLANT,
Versus
FAZAL DIN,— RESPONDENT.
Criminal Appeal No. 95 of 1905.
Indian Penal Oode, Sectiom 4L5. 463— Jetaitpt to cheat and forgery ^-^
False repreaeniation in application for employmeni.
The prisoxier, a fireman, applied for employment to the Looomoti7e
and Oarriag^ Sapariotendent of Barma Bailwajs. He fofwarded with his
application a oopy of a certifioate parpor^i ng to hare been granted to
him by the North- Western Etaiiway authorities to the effect that the
aocased had been employed as an engine-driver on that Railway for a
considerable parioi aad was of good oondaot, when in fact no such
certificate had erer issued to him, nor had he erer worked as an engine-
driror on that Railway.
Beld, that he was guilty of an attempt to cheat and not of
forgery.
Appeal from the order of A. E. MartineaUt Esquire^ Sessions Judge,
Lahore Ditfisiont dated 19th November 1904},
Government Advocate, for appellant.
Moti Lai, for respondent.
Tlie jadgment of the Oonrt was delivered by
Rbid, C. J. —This is an appeal nnder Section 417 of the 26th June 1906
Code of Criminal Prooedore from an acquittal by the Sessions
Judge, Lahore, on appeal. The respondent was convicted
by a Magistrate nnder Sections 468-109 or Sections 417-511
and sentenced to rigorous imprisonment for six months, on
the finding that he sent an application for employment on
the Burma Railways to the Looomotive and Carriage
ORIMINAL JUDGMBNTS— No. 1. ( RiooBB
Saperintendent of those Railways, and that on the paper
on which the applioatioa was written appeared the following
words :—
'^ Oopies of oertifioatee.
" NortK- Western Railway.
" Certificate of character (Form A).
No- 21. 20th April 1903.
'< Certified that Fazal Din was emplof«d ma * driver ^^m
"the Ist Jnly 1900 to the I5th April 1903 when he
*' resigned.
" Character good.
(Sd.)P.TiMiLUBD,
" Districi Loco.Superini^ndent, MuUan.^
The whole docnment is in ihe«ame writittflr^wad wemve MtMed
that the respondent indnoed some one to write the ^document «kd
sent it to the Lioo Sapariotendent, Barm%R«iilways^ intending
t> iniio3 fche UUer t) eoipbj him ai an engine-driTer, rtd that
ho Wi9 a fipeniaa not a cerfci Seated or pisaed engine-drirer
although he may f reqaently have driven an eng ine.
The charg e of abetment of forgery can be diepoeed of wmj
briefly : —
The docnment in question did not purport to have, been
written by any one other than the writer of the application^and
the respondent did not make " a false document " within
the terms of Section 464 of the Penal Code, or abet sifcb
making.
There was no intention of causing: it t> be belioTed that the
document made by the respondent, or any other person was
made or signed by or by the authority of a pevsen, ,by Vhom
or by wbose authority he knew that it was not made or signed,
and the respondent did not either himself, or through any one
else, alter a document after it had been made or executed by
himself or by any othar person, and he did not cause any
person of unsound mind or in a state of intoxication to execute
sign, seal or alter a"^ document. The case^.is so clear that it it
unnecessary to [criticise and distinguish at any length
authorities cited by^counsel{for jthe Crown. Atithoritiee relating
to forged certificates are not in point. In Estan Ohund$r DtUt
fiBT. 1907. 3 ORIMINAL JUDGHBNTS-No. 1. 3
V, Babu Prannath Ohowdhry ('), the forged documents
purported to be trne oopies of original docaments filed with
the Kkzi of Caleatta. The Fnll Bench said : '* We regard the
" forgery of a copy ^clearly to come within the purview of the
" section (Section 463). Forgery of a copy, which was no
** trne copy, would be the offence' there rendered penal and the
'* criminal intention to make a' false document serve the
•* purpose of a true one wonld be clear by such act of forgery."
The report is incomplete, bat it is obvious that the forged
copy must have purported to be made or signed by some one
baring authority to make or sign who had not made or signed,
or-mnst have'been altered.
We decline to interfere with the acquittal on the charge
of abetment of forgery. The charge of attempting to cheat
pcesents greater -difficulties.
hk'Hayemftf ir. Ot^asy (•), reported at 6 Revised Reports,
38(Htb«'Gourt approved the rule that one who affirms that to
be true within his own knowledge which he has not reasonable
groufids to believe to be trne is liable in damages for fraud
if loss accrues to a person who acted on his affirmation,* and it
was held that -fraud meant an intention to deceive whether
from espectation of advantage to the party himself or from
ill-will towards the. other. In Kedar Naih Ohatierji v. King*
Jumper or ('), it waa held that tbe production by a party of a
forged doenmeni* in a anit, with intent to make the Court believe
tbathe waa #iititled:to recover money upon the basis of a particular
doonment produced^ may be fraudulent within the meaning
of Section 471 of the Penal Code^ though possibly not dishonest
within the meaning of Section 24, the intent being to commit
a fraud upon the Court and to deceive it into holding what
it would not have held but for the deception. In Emperor v.
Dhunum Kaaee (^) it was held that the use of a forged document
in support of a defendant's title to the property in suit
waa fraudulent, altheugh there might be no necessity for the
use.
In Mcjmf Y. QuAer^Em/pf€98 (') it was held that under
Section 415 of the Penal Code the damage or harm caused or
likely to be caosed to the person deceived in mind, body,
reputation or property must be tho necessary consequence of
«
W. B^ r. B. «. 71. (•) 5 Cale., W. If., 897,
t MU., 92. (•) I. L. JR., IX Calc, 68.
(•)/. l.M.,XVH0aU.,eO6.
CRIMINAL JCDGMBNTS— No. 1. [ P»rcBb
the act done by reasoo of the deceit practised, or must be
necessarily likely to follow therefrom, and that the possibility
of harm being earned to a Registrar in mind and reputation
by registering a false divorce, and of the loss of fees in fatnre
through persons being less likely to aYiil themselyes of his
services, was too remote for the requirements of Section 419
of the Penal Code. In Empress v. Dwarka Prasad C)f
it was held that a candidate ici^ fi.liF<mert in the police who
falsely described himself to the enlisting o£5cerbad not attempted
to cheat.
In Queen-Brnpresi v. Soshi Bhushan (*), the intention of
the prisoner was to canse wrongful loss to a Professor of Law
or to f one College authority, ar.d wrongful gain to himself by
evading payment of fees foi attending law-lectures, such fees
being held to be property within the meaning of Section 23 of
the Penal Code. It was further held that the intention of the
prisoner was to support a claim within the meaning of Section
463and to obtain a certificate, which was held to be property
under that section of the Penal Code.
In Queen -Empress ▼. Appasorni (*), it was held that a
person Vbo, by falsely pretending to be one D, induced an
officer of the Madras Univeisity to deliver to him certain
property, i. «., a ticket entitliig him to enter the examination
room and be there examined for matriculation, which ticket
would not have been given had the officer not been deceived,
the intention being to make it appear that D bad passed the
ezaminatioQ , was guilty of cheating within the teims of Section
415 of the Code. In this case, it will be seen the Court held
that there was a delivery of property, vis.^ a ticket.
In Abdul Easah v. Queen-Empresa (♦) it was held that
the making of a false certificate with intention to procure on
the strength thereof employment in a public department was
fraudulent, inasmuch as the immediate object was to deceive
a public officer into believing that the person holding the
certificate possessed a guarantee of effideney which he did not
really possess and so induce him to grant emplojrment
which he might otherwise have withheld, and that the
certificate was a forged document intended to be used
fraudulently within the meaning of Section 47 of the
Code. One distinction between the definition of forgery
in Section 463 and of ohcating in Section 415 is that in
T^L L. B,, ri All., 07. (•}I.L.fi.,XIIirad.,161,
C») /. L. B., IF All, 210. (*) 2 P. B., 18»5, Cr.
tWT. It07. ] OBIIONAL JDDUMBNT8~No. 1.
Seolion 463 the intention may be merely to support a
claim or title, or to cause any person to enter into a
contract, or to commit fraad, or that fraud may be com-
mitted ; while in Section 415 the offender must fraudulently
or dishonestly induce the person deceived to deliver pro-
perty, or to consent to the retention (»f property or must
intentionally induce the person so deceived to do, or
omit to do, anything which* he would not do, or omit,
if ho were not so deceived, and which aei or omission
cau9€8j or is Ukely U cause damage or harm to that person in hody^
mindf reputation or prepertyi.
The intention of the respondent was deubtlees fraudulent.
He intended to deceive the Locomotive Superintendent and
thereby obfain employment in a capacity in which he would
probably not have been employed, but for the deception. Queen*
Empress v. Muhammad Saeed Khan. (^)
Can it be held that the employment of the respondent
as an engine-driver would, nnder the circumstances,
have caused or been likely to cause damage, Or harm to the
Superintendent or to the Railway anthorities in body, mird,
reputation or property within the terms of Section 415 P
In Kotamraju Vinkatrayadu r. Empress (') the prisoner had
made a false document, and the question for consideration was
whether the act was forgery within the terms of Section 463 of
the Code. For the purposes of this case the report is useful by
reason of its reference to English oases.
Referring to Bigina v. Toshuck (') Subhramania
Ayyar, J., who held that the prisoner's act was not
forgery, said: ''For the risk of injury to life and pro-
''perty resulting from a person not |K>ssessing sufficient
*' skill, training, etc., for exercising the calling of a
'* master-mariner, or of an engineer, being in charge of
'* a ship or dangerous machinery, is so manifest and
*' serious that no leasonable man can question its reality or
** gravity."
In Toshack's case the prisoner was convicted of the forgery
of a certificate qualifying him to go up for an examination as a
master-mariner and th e ii dictments alleged, not that the act
was done with intent to obtain employment as a master-mariner,
but that it was done with intent to deceive, injure, prejudice
(>) I. X. B., Ill All, 118. (•) /. L.R., IZnilUed^ 90.
(*)4 0m., Or.Oas^U.
^ CRIMINAL JCTDGMVNTi^Nb; i; [ 'Rmoib
and defniad the corporfttion of Trinity House, th^ ezaxninitig
bodj. AldereoD, 13., who delivered jadprmeut said ; *^ It is a very
" important duty which* the Trinity Hoate haye to discharge,
" important to owners of property of this description and import-
'^ant to the oircamstaooes of those entmsted to their
** car«, and, if iiisofficient seaman or persons otherwise than
" of good character and condaot are appointed, the nnfortnnai^
" snbordinstes of the ship ai^ often subjected to harafa and
'* improper treatment." It was held that the indietmente were
snffieient iclonnd a jodgment apon, and it was held that forgery
had been committed. Haying regard^to the teohnicaKty of
indictment and pleadings in 1849, when» this jadgment was
delivered, mnat be held that the Goart foand that the Trinity
House Corporation were injured or were likely ;to be .injured by
the falae representation and false document. Each item ^of the
indictment had to be established..
As remarked by Davies, J., in Kotamraju Vinkmirayadu*9
caee^ to^ooDvieia person of a crime it must be strictly ptoved
that it haa been committed in law. It is not enough to show
that he haa been guilty of immoral orsinfiil conduct, and in-
Jnnson v. DriefanUin Consolidated Mines f Limited^ the Earl of
Halsbnry, L. C, approved the rule that public policy is not a
safe or truetwortby ground for legal decision.
The deeeption which the respondent attempted might
possibly have been harmless had it net been diaoovered and
had he been appointed engine-driver in consequence of the
deception, but this conbideration does not justify his acquittal,
and the decision in Toshack's case is authoritj for holding
that the deception was likely to cause damage or harm to the
person on whom it was practised or to the Bailway authorities -
whose agent he was in the matter of appointments.
The " injury" specified in Section 415 of the* Pmal Ck)de
is as comprehensive as words can make it, and we hold that the
respondent attempted to cheat.
We allow the appeal to the extent of restoring the conviction
under Secttou 415 of the Penal Codci^ but having regard to the
lapse of time since the offence was committed and to the
difficulty of the question of law involved,, we remit the
unexpired portion of the sentence of imprisonment.
Afpeal aUowed,
fcBT^ 1907. ] OBUaHAL JUPQUBNTS-JNo. 2.
]fo.2.
Before Mr. Justice Chatterji, CLB.
OHIBAQH.IirD.DlN,— PBTITION BR,
T^^ftii >RintioN SiDi.
KING.EMPEROR,-.RBSPONDENT. ^
Criminal Bevieion No. 728 of 1906.
, Banetumfor vrA$mtution^09mplaint-^D%imis$al of, . wuier SiMm ««03
ofths (Mb of Criminal Proc€fiure-- Competency ofMogi^tnUe to grant eanctum
for pro8€eution for making: faUe charge—Criminal Procedure^ Code, 1898
Sections 195, 202, 208.
Held, that a Magistrate dismissing a ooinplaint under Seotioo 203 of the
Code of Oriminal Procednre after examiniDg the complainant and
considering the resnlt of the investigation made nnder Section 202 on the
ground thattiieallegfiHons contained therein* were false is oompetent to
gran^saoctioBforthepwaeontionof theoompbinant for making a iaise
QkKge.
Swrya Bmriant and o^ere r, Kmg^Smp^ror ( « ) ifellowed.
ijfmen-Smpreee ▼. Ganga Ram (*) dissented from.
Petition for revision of the erder of W. Ohems, Esquire, Sessions
Judge, Sialhot Division, dated I9th April 1906.
Llialy.for petitioner.
The judgment of the learned Jndge was as follows :—
Chattirji, J.-I have gone tinough the record and .find that VUt Julf 1906.
on a complaint filed onftSrd Pebrnary 1906 n^nst Zahnr-nd-din,
8ab Inspector, and Khan Danran Zaildar charging them with
adultery with Massammat Bhagan, the eomplainant's wife, the
District Magistrate ^fUr examining the complainant sent the
case to the District Snperinteodetifc of Police^ for.tioquiry and
1 eport nnder Section 202, Criminal Procedure Code. The District
Superintendent of Police after inquiry reported the charge to be
fal8e and unfounded and suggested the prosecution bf the
complainant. The District Magistrate therenpon after diennissing
the complaint sanctioned the prosecution cif the compJainant under
Seetion 211 of the Indian Penal Code.
It is argued on the authority of Queen^ Empress v. Oanga
Bam (*) that the complainant not having had an opportunity
to substantiate his case, sanction should n^t have been given
In my opinion this is going beyond the Code for Section 203
(*> 0 OdU. W. N.fm6. m^H^B^ Yin JUk, M.
OBIMINAL JOUGMENTS— No. ft. I
ftUoiriaoriaiia*lomplaiQtt3b)di3p>>9a of af wr ex itn u U. »a
of the oomplwaxat aal aQ •oqitry aider Swfcna 20J, ani tha
propoeition laid dowa broadly by the authority cited app^ to
iDToWe the oonseqaenoe that in no case diapoeed of under Section
203 can sanction be given. Bat under the Code a proceeding
under that eeotion ie a sufficient disposal of th. case and I cannot
we ^hy, when a complaint disposed of under that section w
found or believed to be false, the Magistrate should, as a matter
of law, be incompetent to grant sanction under Section 195,
Criminal Procedure Code. I am supported in this view by a recent
Calcutta case 8urya Hariani and othert v. King-Brnperor ( )
PoUowing.that ruling I hold that there was ntf legal bar to the
ganotaoD.
As regards the propriety of the sanction I think after
.«^ng the proceedings of tbe inquiry made by the District
^rTntendent of Police that there are some P" «»{«-. ^^'t
for proceedings against the complainant, though h« « n^ to
beLtedasIny definite opinion, and I am not P-I-^* to
|;!torfereonthe revision side with the discretion of the two
lower Courtoby revoking the sanction.
I reject the appUcation. AppUcation dumiued.
Bmami Baa.
Ko- 3-
£e/ora Mr. Juntiee Lai Ohand.
GOPAL SAHAI,-PBrnnONBR,
fertui
KING-BMPBROR OF INDIA.-EESPONDBNT.
Criminal Revision No 779 of 1906.
„d not 1- P«r.naBoe of "-[ J^'J "^"Ha^^ot be oonyioted under
Committee being altogether dlegal a person oa
Fbbt. im. ] CRIMINAL JUDGMBNTS— No. 8. 9
Fetition for revision of the order of Oaptain B. 0. Eoe, Sessions
Judge, Jullundur Division, dated Wth April 1906.
Dwarka Da«», for petitioner.
The jadgment of the learoed Jadge was aafoUows :—
LalChand, J.— This is ao application for revising the ^Wd August ^^6.
order of the GantoDment Magistrate of Jallandar who has
couvicted the petitioner under Role 104 of the Oantonment
Code for his failnre to comply with a notice issued ander
Rule 94 of the Code. The notice issued on 6th July 1905
required the petitioner, among other matters, to huild quite
new, within fifteen days, eastern wall of a hut in bungalow
No. 92 and he has been convicted for his 'failure to comply
with this order. It was contended before the Cantonment
Magistiate and the Faroe contenticn repeated in revision in
this Court that the notice purporting to be issued under
Rule 94 of the Code was altogether ultra vires. Rule 94
prescribes that when any wall in the opinion of the Cantonment
authority, is in a ruinous state or in any way dangerous, the
Cantonment authority may by notige in writing require the
owner thereof forthwith either to remove the same or to
cause such repairs to be made as it may think necessary for the
public safety. The rule further directs that if there is in the opi-
nion of the Cantonment authority imminent danger it shall forth-
with take such steps to avert the danger as it may think necessary.
It is thus clear that under Rule 94 the authority to issue notice or
to take proper steps in case of imminent danger is vested in
the Cantonment authority which is defined by the Cantonment
Act to mean Cantonment Committee. The constitution of
Cai'tonmeiit Committee is defined by Rule 3 of the. Code, and
by Rule 5 it is provided that the Cantonment Committee (if any)
shall discharge the fnnctions of the Cantonment authority
under the Code.
By Rule 248 it is fuiiber provided that the Cantonment Com-
mittee may by order in writing delegate any of its functions tea
Sob-Committee consiFtirgof any two or more of the members of
the Cantonment Committee. It is found by the lower Court in this
case that by resolution No, 29, dated 15th December 1900, the
power under Rule 94 were delegated to a Sub-Committee consist-
ing of the Officer Commanding the Station and the Cantonment
Magistrate. It is also found that as a matter of fact the notice in
question was not iesued with the authority or direction of the
Sub-Committee ex) ccnsfituted but by the Cantcnnrent Magistrate
10 OBIHINAL JT7IMiMl^T8-No« 8. [ BscoU)
op hiB own sirgle anthority without any refer^iee io or
direction or coDsidei alien bj the 8nb*CoiDmittee. The notice
on the face of it is therefore ultra vires and illegal and the
petitioner could not lawfully be convicted and ponished nnder
Rale 104 for not complying with snch notice. The Cantonment
Magistrate bap, however, beld that the error in issuing the
notice is merely a formal defect and as snch condoned by
Enle 291 «nd that at any rate he regarded the matter as
orgent and therefore was ccmpetent to issne the notice on
his own authority. 1 am unable to accept either of theee
views. The defect in authority to issue the notice is not
a defect or irregularity not affecting the merits of the case
as prescribed by Rule 291. It is a matter which goes to the very
root of the power to issae notice and not a formal defector irre-
gularity. The authority to issue notice under Rule 94 is
vested by the Code in a constitn ted Committee or Sub-Committee.
The Cantonment Magistrate, who did not and could not form
the Committee or Sul>Committee as the least number required
is of two members, by issuing the notice in question performed
therefore a function whicl^he had no legal authority to per-
form. The case is thus not one of formal defect or irregu-
larity but analogous to the case found in Stihrahmoni Ayyar
V. King-Ewperor (^), where a Court not empowered by the
Criminal Procedure Code to join certain charges misjoined
them, and it wab held ibat its action would be not merely
irregular but altogether illegal. As regards emergency there
appears to be the same confusion of conception underlying
the argument. No rule is quoted which, in case of emer-
gency, empowers a Cantonment Magistrate as snch to issue the
notice prescribed by Rule 94.
On the other hand the latter part of the rule which
has apparently been overlooked distinctly gives the power
in case of imminent danger to the Cantonment authority to
take such steps to avert the danger as it may think necessary.
It is clear from a plain reading of the rule and eminently
stands by itself to reason that in case of emergency the pro-
cedure by issuing notice would defeat the very object aimed
at, and therefore in such cases the rule empowers the Can-
tonment authoiity to take neceseary steps to avett the danger.
The notice issued in this case ullowed fifteen days to rebuild
the wall whicli in itself is cogent evidence that the matter
(» 1. 1. B., XXr Mad., 61, l\ a
B»gBY. 1907. ] OttiailNAL jUDGMilNTS -No. d. l4
coald Dot be looked upon as emergent or of imminent danger.
The Cantonment Magistrate in support of emergency has referred
to the evidence of the Sab- Conductor. His evideace seems to
Qie to be directly contradicted by the deposition of Lieutenant
Dyce, Yfho occupied the bnogalow, and of Mr. Bayley,
Executive Engineer, Public Works Department. But, moreover,
the Sub-Conductor in his statement referred to the result of
his examination on 11th April preceding the notice and on
21 st July a fortnight after the issue of the notice. There
is absolutely no evidence to indicate the condition of
the wall at or aboat the time when the notice was
issued on 6th July. It is true that according to the rule the
question whether there is imminent danger is left primarily to
the opinion of the Cantonment authority, but I cannot agree with
the view expressed by the Cantonment Magistrate that in using
the discretion he represented a part of the Sub-Committ«e and
that ander the circumstances his user of discretion or taking
action is protected by Rale 291 as an irregularity not affecting
the merits of the case. The authority relied upon by the Can-
tonment Magistrate Puran Mai v. Kt^g'Einperor (*) directly
supports the opposite view .
I therefore hold thai the notice issued in this case was
wholly ultra vires and the conviction under Rule 104 is illegal.
It is unnecessary under the circamstances to notice the i^emaining
two contentions urged on behalf of the petitioner in <his Court
and the lower Court, viz., that no notice could be issued under
the rule "to bnild the wall quite new", the matter required by the
rule being to remove or repair, and that, secondly, the hut was
inside the premises 25 feet distant from the public road and
therefore no question of danger to public safety could possibly
arise. The second contention is supported by Wazxrullah v.
Crown (') which i^ a similar case and is exactly applicable and
by the language of the rule itself. It is, however, unnecessary to
parsne this matter any further or to discuss the reasons given by
the Cantonment Magistrate for overruling these contentions. As
for the reasons already given I am cleatly of opinion that the
notice issued was illegal and ultra vires, and the conviction under
Rule 104 is conseqaently unsustainable. I therefore aoeept
the application for revision, quash the conviction and direoi
the fine, if realised, to be repaid to the petitioner
Avplieation cdUwed.
(>) 26 P. &., 1905. Or. V») P. fi^ 1906, Or.
12
OBIMINAX JUDGMENTS— Ko. 4. Rkoed
No. 4.
Before Sir William Clark, Kt., Chief Judge,
and Mr. Justice Beid.
KHOTA RAM AND OTHERS,— PBTITIONBRS,
Riraioii SiDi. { Versus
KING-EMPBROR OF INDIA,— RESPONDENT.
Criminal Etevision No. 66 of 1906.
NonratUndane$ m obedience to an order from a Tdheildar^Mnn^if
far di$trtbuting reven\M on waste land^PencJ Oode, Section 174.
Held, that a Tahsil Jar has no aathority to summon a person who hw
agreed to prepare Hats of cattle in order to enable the Re^enne authorities
make a proper asaessment of revenue over waste lands, and consequently
failure to attend in obedience to saoh an order is not punishable under
Section 174 of the Indian Penal Code.
Ifetitumfor revision of the order of M. H, Harrison, Esquire,
Districi Magistrate, MianwaU, dated 23ri Septimher 1906.
Nanak Ohand, for petitioners.
The judgment of the Goart was deli7ered by
^h Janu 1907. Clabk, 0. J. — It ap^ara that in the Mianwali District
in distribatiig the re7eQae over wastelands, assessed at Rs. 3-8-0
perhaaired acres, the p/ooadare is, as described by the Deputy
Commissioner,
** A body of respectable persons including the lambardais,
**but never consisting entirely of Itimbardars, prepare and
*' attest a list of oattto. As a special safeguard for the people
*^ the lambardarn alone are not allowed to do this work. No
" man of course need serve on this committee, but if he does
'^ serve and if he does attest the list of cattle, the Revenae
''authorities must satisfy themselves in the interests of the
''Revenue papers that he and the other member .4 of this com-
^ mittee known as muosifs have done their work honestly.*'
In pursuance of th^s procedure certain respectable persons
called for the purpose of the lists 'munsifs', prepared the
lists.
Three of these muosifs were summoned by the Tahsildar
to appear before him in connection with the lists they had
prepared and they fail d to attend find have benn convicted
for their non-attendance under Section 174, Indian Penal Code.
The question is whether the Tahsildar was legally compe-
tent to issue such summons.
April 1907. ]
CRIMINAL JUOaaiENTS-Ko.
18
The Depaly Jo umissioaer, after reference to him, has not
b3ea able to qnoc^ aay aathority f >r the issae of each sammons.
There is nothing in the Revenue Aot authorising the issue
of such summons. Section 149 of that Aot only provides fot
the attend'iuoe of parsons withia the limits of the estate within
which they reside.
Q teen-Brnpresi v. S'*hanna (*) shows that in the Madras
Pie^idea-sy t«nre i.^ ai Aot II [ of 1869, giving power to issue
sammons f)r attendance of persons for purposes connected
with the Etsvenue ad/ninistration, but there is no such Act
in the Panjab.
Crown V. Kashi Ram (*) and Grown v. Kuria (®), show
that arbitrators cannot as such be required to attend Court,
and Qhulim Khan v. Empress (*) decided that it had not
been shown that the attendance of a lambardar for the purpose
of appointing a village chaukidar coald be legally enforced.
We are of opinion that the Tahsildar was not legally compe-
tent to issue summons for the attendance in Court of these
munciifs, and we set aside the convictions and senten oes. The
6ne8, if paid, will be refunded.
Application allowed.
No. 5.
Before Sir William Clark, KL, Chief Judge,
and Mr. Justice Reid.
KING-BMPEROR,— COMPLAINANT,
Versus
ARTHUR MBRCER,-RESPONDBNT.
Criminal Miscellaneous No. 2 of 1907.
European bfitish subjects —Co ntpeteney of GoirU of Ssiahn in British
Belochistan to eecixise jurisiiction over European British subjects'^
RejUatim Vlll of 1^96, Stctions 3, 21 — Criminal] Procedure Code, 1898,
Section 0.
Held that Ooarts of Session in British Belochistan have jarisdiciion
b) try Euro^aan British sabjeots committed to them by competent Coarts.
S loh Ojarbs hiving been ejtablishel by the Governor-General in Ck>aDcil
by Begalation VIII of 1896, it is immaterial that the Local Government
has established no such Conrts under Section 9 of the Oode of Griminal
Procedure.
MlSCBLLANBOUl
SiDB.
(0 I. L, B., Vn Mad., 197.
,•) 2 P. B., 187S, Cr.
(M 18 P. B., 1876, Or.
(*) UP.K.,1887.
^^ 0BIVri5JA.li 3trDQMfi>TS— No. 6. t *ti«W^
Application under SecHon 215, Griminal Procedure Oode^
to qua^h the commitment of the respondent to the Oour t of Setsion
at Quetta.
GoYernment Advocate, for peiitioner.
The jadgment of the Court was delivered by
4ithFehy.190T. Clark, C. J.—Ooe Aithur Mercer, a European Briiirfi
subject, was committed by Mr. Anscomb, Extra Assistant
Commissioner, Qnetta, Magistrate, let cJass, and Justice of tho
Peace, to the Court of Sessions, Quetta, on a chaise under
Section 324, Indian Penal Code.
The Local Ooyemment, Belochistan, represent^ to this
Court that the Coujt of Sessions in Belocliiptfiii hud no
jurisdiction to fry European British subjects, and the
Government Advocate has applied to ha-ve the committal of
Mercer to theCuurt of Sessions quashed and to hate him commit-
ted for trial to this Court.
The question which we have to determine is whether
the Courts of Session in Beloohistan have jurisdiction to try
European British subjects.
Undtr Section 3 of Regulation VIII of 1896 the Code of
Criminal Procedure is extended to British Belochistan subject
to the modification set forth in the schedule attached to the
Regulation.
Section 3 (1) of that Schedule provides that — " Each
** District shall be a Sessions Division, the Court of tbe District
',, Magistrate shall be the Court of Session for that Division,
**and the District Magistrate shall be the ^ndge of that
" Court."
Courts of Session are by this Regulation appointed for
Beloohistan, and no distinction is made between their powers
over Eurpean British subjects and their powers over natives
of Belochistan.
The poweis of Sessions Courts over European British
subjects are given in Sections 444—447 149, Criminal Procedure
Code, and we can see no reason for holding that those
powers are not vested in the Belochistan Courts of Se^sioita in
virtue of the above-noted enactment.
Section 21 of the Schedule no doubt provides that
** nothing in the Schedule wit-h respect to procedure, io
-^*^ ^^^. ] OBIMINAL JOOGHBNTO.^^0. 6.
16
"iDqniiieB or frialo or with respect to senteDoes or appeals
" therefrom, or the erhsnccninit or txeciitid) tLerxcf, thall he
" constrned to affect the code in its applicRtion to European
" British snhjects."
This does not touch the jurisdiction of th© Sessions Courts,
that is conferred hy Section 3 of the Regulation.
The cie&tion of Courts of Sepfeion cannot he considered
to he somfthii.g in " this Schedule with lei-pect to procc^doie
"in inquirifF, etc." and the powns given to Courts \,i Sessiona
bj the Cede of Criminal Procedure aie not taken away by this
section.
Procedure in inqui He a may poe^ibly include the provision
of Section 3 (2) (3) of the Schedule and bar the Court of
Sessions from hearing capes of b]uropean British suhjects that
have not been committed to them, or trying them without
a jury.
Restrictions on appeal and enhancement of punishment on
appeal are specially provided for in Seciions 14 and 15 of the
Schedule and these provisions are barred by Section 21 from
being applied to European British subjects.
We are therefore of opinion that the Courts of Sessions in
Belochistan have jurisdiction to try European British subjects,
committed to them by '*ompetent Courts.
We wish to nnticd lome of the arguments used against
this view.
The fact that no Courts of Sessions have been appointed
by the Local Government under Section 9 of the Criminal
Procedure Code is not material ; these Courts have been
appointed by the authority superior to the Local Government,
namely, the Governor-General in Council by the Regulation.
It would be meaninglcES and inelevunt for the Local Government
to proceed to make such appointment after it had been done
by the authority to which the Local Government is
subordinate.
It is the Governor-General in Council who has appointed
the Justices of the Peace, tlcy have not been appointed by the
Local Government under tie Criminal Prrcednie Code, and it
would be as forcible to argue that they had no powers over
European Biitish subjects because not appointed under the Crimi-
nal Procedure Code, as that Courts of Session had no such
powers, because thej were not appointed under the. Criminal
Procedure Oodie.
|(j CRIMINAL JTJDOMBNTS-No. 5. [ Baocmi^
i^Dother oontention against on r view is that under Section
6 of the Foreign Jnrisdictiou and Extradition Act, 1879,
and the notifications thereunder, Justices of the Peace were
directed to commit European British snhjecto to the Chief
Court.
In Notification No. 813 E, dated 19th April 1890, Gazette of
India for 1890, page 247, Political Agents in Belochistan were
appointed Jastices of the Peace with directions that the Chief
Court was the Conrt to which they were to commit.
This order was confirmed hy Notification No. 3706 F. B. of
October 1903, Gazette of India for 1903, page [917. However,
Notification No. 1799, dated 9th September 1891, Gaze^ of
JnJta 1891, page 537, appointed the Assistant Political Agent,
Qnetta, and the Extra Assistant Commissioner, Qoetta, to be
Justices of the Peace, and no direction was given as to the Court
to which thej shonld commit.
Though the Foreign Jurisdiction Act was repealed by Act
X of 1903, all the powers which had been conferred under that
Act were confirmed by the order of His Majesty the King in
Council, No. 3917 1. A., dated lath Jnce 1902, published in
Gazette of India for 1902, page 667.
There being no direction in the Notification of 1891 aa to
the Court to which the Assistant Political Agent, Qnetta, and
the Extra Assistant Commissioner, Qnetta, shall commit
European British subjects, they will commit in the way
provided by the Criminal Procedure Code, that is, to the Conrt
of Sessions.
The result is that Political Agents and the Cantonment
Magistrate Qnetta (the latter under Notification Ko. 814 B, dated
19th April 1890, Gazette of India, 1890, page 248) commit to the
Chief Court while the Extra Assistant Commissioner and
Assistant Political Agent, Qnetta, commit to the Sessions
Court.
This may be anomalous and it may not have been the
intention of the authorities, but this is what we understand to
be the law on the subject, and as a commitment can only be
quashed on a point of law (Section 215, Ciiminal Proctduie
Code) we are unable to quash the conmitment.
Any deficiencies that there may be in Belochistan as
regards the existence of a juiy list, and as to a diiecticn under
AfaiL 1906. 1 CRIMINAL JDPGMENTS-No. 6. "^
Seotion 274, Criminal Prooednre Code, as to tbe Dumber of the
jaty can be proyided now.
We therefore refase to qnash the coaimitnieni of the
acoosed who shoald be tried bj the Court of Session to which
he has been committed.
No. 6.
Before Mr. Justice Chatterjt, CLE.
BADHA SINGH AND ANOTHER,— PETITIONERS,
Venus
KINGEMPEROR OP INDIA,— RESPONDENT.
Crrtninal Revision No. 13]0 of 1906
Security for keeping the peace on conviction^Appellate OouH not
competent to demand where Magistrate not empowered by law^ Criminal
Procedure Code, 1898, Sectiyna 106, 580.
Held, that a ooart of appeal oannot pass an ordar und er Seotion 106
of the Code of Griminal Prooednre when the Magistrate who passed the
original order convicting the accused was not empowered by law to do
•o.
Mttthiah Chetti v. Emperor (*) followed.
Case reported by Major 0. 0, Beadon, Sessions Judge, Boshtarpur
Division^ on 6th October 1906.
The facts of this case are as follows :—
Tbe accused were charged with assaulting complainant in oonnection
with a dispute in respect of »ha milat land. They denied tbe offence, but
it was established by tbe eTidence of reliable witnesses.
The aocosed, on conyiotion by Munshi Ali Bakhsb, Tahsildar,
exercising the powers of a M agistrate of the 8rd class in the Hoshiarpnr
District, were sentenced, by order, dated 80th June 1906, under Section
S52 of the Indian Penal Code, to a fine of Ra. 10 each, and the District
Magistrate of Hoshiarpnr upheld their conyiction on appeal under Section
862, Indian Penal Code, though by clerical error Seotion 823 was referred
to, and in dismissing the appeal on 13th August 1906, ordered them each to
furnish security under Section 106, Criminal Procedure Oode, to keep
the peace.
The proceedings were forwarded for reyision on the following
groaods :—
An assault is a breach of the peace and though a Magistrate of the
8rd class cannot pass an order under Section 106, Criminal Procedure Code,
(») I. L. R., XXIX Mad., 190.
1
Elf moil SiDi.
I
Xg OBIIIlNAu JUDGkiLNTS— Na 7. [ Bbcoii>
ibflve are no eipreM words in Seetioii 106, OriminAl Fkoeedore Codie^
which reetriot the powers of an Appellate Court under Section 106, Criminal
Procedure Cede, to appeals from Criminal Gonrts other than the Courts of
Magistrates of the 2nd and 8rd class.
Muthiah Chetti v. Emperor ('), however, is an authority fov the
contention that the powers of an Appellate Conrt are restricted, and thatio
the present case the District Magistrate had no power to pass an <^er
under Section 106, Criminal Procedure Code.
Under these circumstances it seems necessaiy that the case should
come hefore the Chief Court for orders oc the Rerision Side, and I
accordingly report the case for orders of the Chief Court.
The jndgmeDt of the Chief Court was delivered by
8i& Ik$ir. 1906. Cbattebji, J.-— I am of opinion that the conBtrnction pnt on
the section by the Madras High Conrt in Muthiah Chetti v.
Emperor (*), that the Conrt of appeal caonot pass an order
nnder Section 106, Criminal Procedare, when the Magistrate who
passed the original order oonvioting the accused was incompetent
to do so is correct. The Magistrate here was one with third
class powers and he could not pass an order on conviction
requiring secnrii j from the accused to keep the peace in fntnre.
It follows that the District Magistrate's order is without
jurisdiction.
I accept the application so far as to cancel the order for
security.
Appeal allowed.
No?.
Before Mr. Justice Battigan*
ABDULLA KHAN AND OTHERS,— PETITIONERS,.
nantKM Bum. I yersus
GDNDA AND OTHBRS,-.BESPONDBNTa
Criminal Revision No. 495 of 1906.
Possession — Order of Criminal Court as to^Non-cheervance of procedure
'^lllegality^Criminal Procedure Code^ 1898, Section 145,
Proceediugfl nnder Section 145 of the Code of Criminal Procedure are
without jurisdiction unless the procedure prescribed therefor is strictly
adhered to. Where therefore the copy of the initiatory order was neither
served en the parties nor affixed at or near the subject of dispute and
all the parties interested were not heard or evidence taken : Keld^ that the
proceedings must be set aside.
(>) I. L, R., JXIX Mad,, 190.
-.Apwl 1907. ] CRIMINAL JODQMBNTS-Na 7.
19
Queen-Smprua v. Qohind Chandra J>a$ (») Ldldhari Singh v. Sulkde©
Narain Singh ( ), Uoheah Sowar v. Karain Beg (»), Jagomohan Pal v.
Jf am Kumar Ocpe (*), Mangal Haldar y. Naimuddi Fakir {•), toid Dewan
-Chand v. Qtt€«n-£mf>re«fi (•) referred to.
Petition for revision of the order of B. Sykes, Esquire, District
Magistrate, Sialkot, datedSth March 1906.
Nabi Bakhsh, for petitiooers.
The jadgment of the learned Jadge was ae follows :^
Raitigin, J.— Complainants preferred a complaint again:>f bth Jmny. 1907.
three persons, Abdalla Khan, Zaildar, Hassa and Dula, chargiog
•the latter with offences under Section? 352 and 504, Indian
Penal Code. The Magistrate, 3rd class, acquitted the accused
personsof the alleged ofPenoe under Section 352 and discharged
ttem as regards the alleged offence under Section 504. The
xjomplainants thereupon applied to the District Magistrate
for revision of this order. The District Magistrate recorded the
following order on this application :—** The land is said by
" appellants to have been ploughed up by the zaildar last Asuj,
" to have been unoccupied before that ; it is said to be the
" place just in front of their houses which is used for their
^* places of meeting and religious service. This is borne out by
« Mr. Anderson, the Missionary. It appears that the land has
" been in the occupation of the low-caste Christians for the pur-
" pose above mentioned, and that the zaildar for the purpose of
•* annoying them has now unnecessarily ploughed up the land.
** This land is recorded as a6(uZ*-de^ and should not have been
** encroached upon. The zaildar will be summoned." This order
is dated the 26th February 1906. The ^zaildar was accordingly
summoned and both he and Mr. Anderson were examined on
the 8th March 1906. As a result of this examination the District
Magistrate on the same date recorded the following order :—
" I find that there is a dispute about the land likely to lead to
« a breach of the peace and that the laad is in possession, for
*• the purposes of assembly and storage of manure, of the Native
" Christians of the village ; that this possession was wrongf nUy
** disturbed by Abdulla, the sarhara of the zaildar, I now order
" under Section 145, Criminal Procedure Code, that this land
*» which is recorded as abadi-deh and which is shown in the plan
" attached to the proceedings of the Saih Tahdldar as Min. 1616,
"be replaced in the possession of the Native Christians."'
(*) /. L.R,f XX Oalc., 620. (^) I, L B XXVI 11 fnL* ai*«
(») /. L. R., XXni Cole.. 981. (.) a p. R., 1899, Or., F. B.
CBIHIMAL JDUUMCNTS— No. 7. ( item
AbdoIIa (who has died meantime), Hasan and Data ap{iliefl to
this CJonrt for reTision of this order as made without jarisdictkm,
and the gronnde urged in snpport of this application arc (1) dut
there was no preliminary order of (he knd specified in
Section 145 (1) of the Code ; (2) that the oopy of the said order
was not served upon any one or affixed to same ooospic«mi
place at or near the subject of dispute, as preeorihed by clan*
(3) of the said section; and (3) that with the exception of
Abdnllanone of the partieBintereefrd i,. the land was heatd,or
eTidence taken in accordance with the proTisions of clause (4)
of the eeotioD,
J do not consider the first objection to be well-founded.
The Di8trict Magistrate distinctly finds on gronndi stated by him
in his first order that the zatldar was ploughing np the land for
the purpose of annoying the complainants and that the said land
was nsed by them for their religions « serriccs." Obviously the
meaning of the District Magistrate was that under tb««^
circumstances a dispute existed likely to cause a breach of the
peace. The other objections, however, seem to me to be fatal
to the validity of the proceedings and to go to the veiy loot
of the matter. The land in dispute is the abadi^h and Ahdalls
was certainly not the only person interested in the dispute.
The copy of the order of the 26th February 1906 was not served
even upon Abdalla, nor was any copy of it aflSxed to any part of
the subject of the dispute. Nor again, was any peraonrsave
Abdnlla, given an opportunity to be heard regarding the Sabjeet
of the dispute, though numerous persons, including the two
petitioners, Hassu and Dula, were interested in the land in
question. Under these oiroumstanoes the decisions of the
Calcutta High Court in Queen.EmjyreK v. Oobind Ohaadra Bat 0).
Laldhari Singh v. Sukhdeo Narain Singh (•). Moheth Sowar r
Naratn Beg (,•), Jagomoihan Pal v. Bam Kumar Oope («) Mangat
HaUar v. Naimxiddi Fakir (•), are sufficient authority fo^ holding
that the proceedings of the District Magistrate wero without
jurisdiction and must be set aside^See Dettan Ohand v. Oiwen.
Emjirest (•). * ^^""^
I must acoordingly set aside the District Magistrate's oid«
of the 8th March 1906.
^^^ ^fpUcation aUowed.
(«) /. L.B..XXOale., 880, (') I I B. Xrvm n . ...
(•) /. L. B., XXrw Ca/c, 892. (•) bCoUVsi^'^- ***"
Srptr. 1907. ] CRIMINAL JUDGMENTS-No. 8. 21
No. 8.
Before Mr. Justice Beid and Mr. JiLstice Shah Din.
BHOLA,— APPELLANT,
Versus J Appbllatb Sidb.
KING-EMPEROR,— RESPONDENT.
Criminal Appeal No. 224 of 1907.
Confeaaion^ Confession made to a Magistrate oj a Kaiive Stite^AdmiS"
aihility of, ns evidence in a trial in British IndiaSvidence Act, 1873,
Section 26.
Held, that a confession made by a prisoner to a Magistrate of a Native
State 18 admissible in evidence in a trial in British India if it is duly
recorded in proceedings nnder, and in the manner required by, the Code
of Oriminal Procedare.
Queen-Empress v. Sundar Singh (^) and Patel PaTid Chand v. Ahmadahad
Municipality (■) followed. . .
Appeal from the order af H. P. Tollinton, Esquire, Sessions Judge,
Lahore Division, dated Sth January 1 907.
Tbe jad^ment of tbo Coart (so far as is material for the
purposes of this report) was delivered by
Reid, J.— ♦ ♦ * »
♦ • « ♦ ♦
On the 26th Jancary tbe appellant, who esoapetl after
wonndJDg Alia Din and was arrested in Jammn territory on
or after the 24th January, confessed to a Jamma Magistrate
of the 2nd class that be had killed Alia Din and had intended
to kill him.
This confession was retracted in the Conrt of the Commit-
ting Magistrate and of Session, bat we see no reason for holding
that it was not made volantarily and does not accurately repre-
sent the facts.
It was recorded nnder S'^ction 164 of the Code of Criminal
Procedure and duly certified. Queen-Empress v. Sundar Singh
and others {^) and Patel Pand Chand y. Ahmadahad Munici-
pality (^) are authority for holding th«»t a confession duly
recorded by a Magistrate in Native Territory in proceedings
nnder tbe provisions of tbe Code of Criminal Procedure, is
admissible in a trial in British India.
4^th June 1907.
(>) I. L. B., Xll AIL, 595. (•) /. L. R., XXU Bom., 235.
22 CRIMINAL JUDGMENTS-No. 9. [ RWOW)
No. a
Before Mr, Jitstice Reid and Mr, Justice Shah Din.
SUNDAR AND OTHERS,— PETITIONERS,
RivisioN SiDB. { YerfiUft
KINQ-EMPEROR, -RESPONDENT.
CriraiDal ReviBion No. 2^0 of 1907.
Revisitm - Order made under Section 45 o/ the Punjab Lawi Act^ 1872,
[ requiring foreign vagrants to leave District— Ju<1icial proeeedinga — Paoer of
reviaion by Chief Court,
Held that the procppdings of a Diatriot Mapnstrate requiring foreifi:ii
vaKPftnts t'> leave hia district under Section 45 of the Punjab Laws Act,
1872, are not judicial prooeedinpa and are therefore, even if illegal, not
open to revision by the Ohief Court.
Petition for retn'ffton of the order of H, A, Bose, Esqutte, Sessions
Judge^ Multan Dimsion, dated Sth January 1907.
Fflzal Ilahi, for petitioners.
Tarner, Government Advocate, for respondent.
The judgment of tlie Court was delivered by
6th June 1907. Reid, J.— The District Magistrate of Montgomery iasned
an order purporting to be under Secdon 45 of the Punjab Laws
Act to the petitioners to leave the district within fifteen
days.
The petitioners obeyed the order and have filed this
application for revision.
On the materials before us the order complained of appears
to be illegal, the petit ioners apparently not forming part or the
whole of a band of foreign vagrants bat being cultivators or
owners of land in the Montgomery District.
The section is applicable to a band of foreign vagrants only.
The question for consideration is whether the jrJer com-
plained of is open to revision by this Court. The District
Magistrate was in our opinion acting ia an executive, not in a
judicial capacity. The section empowers the District Magis«
trate, es nomine, to act, and the District Magistrate therefore
^^o«^o^ibed himself as such, not as Deputy Commissioner.
No penalty is prjvided for disob*^dience to an order under
the section. The District Magistrate*** means of enforcing the
order is by report t^ the I^oaal Govarnnfi-^nt uuder Section 46.
gEPTB. 1907. ] CRIMINAL JtJUGMENTS— Ko. 10. ^^3
Had fine or imprisonment been prescribed for disobedi-
ence revision might lie, and no appeal to this Court is provided
as in Section 42. Having regard to the terms of Sections 45 and
46, to the absence of any penalty and to the absence of any
special provision for interference by this Court, it hns, in our
opinion, no power to interfere. The petitioner**' remedy is by
appeal to the Local Government. If they return to the Mont-
gomery District, the Disiriot Magistrate can proceed under
Section 46 of the Act.
Apitlication dismissed.
No 10.
Before Sir William Clark, Et,, Chief Judge, and
Mr, Justice Reid,
JASWANT RAI,- PETITIONER,
Verstis \ RinsioN Sidi.
KINGEM PEROR,— RESPON DENT.
Criminal Revision No. 401 of 1907.
Enmity— Promoling^ hclxvccn different clas.^es of Bis Majesty^s i>»hjecU —
Eurofeans ar.d Indians- Peval Code, Section 153 A.
Held t)»at a person who publishes as true a detail* d account of a
brutal murder of an Indian by a European based in fact on a mere rumour
which had died out years before tbo publicati(.n, and to the revival of
which he himse'f h«d iMrgoly cm tributed, in not protected from criminal
r bility by the explanation to iSnliou 153 A. of tie Indi.n Pennl Code.
K ch a publico. tiou n.u>t bo held to be likely to promote enmity between
H ff rent claBsee of llifl Majesty *8 subjects, and is an offence under Secti(m
153 A. inaemnch as the publisher mu^t be held to have attempted to
promote feelings of enmity and hatred between the two classes, the only
reasonable inference dedncible fnm his j^cts beii^( that he wtia conscious of
what the effect of them would be and intended to cause that effect by the ,
pnblication.
For the purposes of Section 153 A. Europtjiub aid Ind ans coustituttd
different classes of His Vajesty's subjects.
Petition for revision, of the order of H, P. Tollinton, Esquire,
Sessions Judge, Lahore Diinsioit, dated \Sth March 1907.
Grey and Shadi Lai, for petitioner.
ABBtBtant Legal Remembrancer, for respondeDt
24 CRIMINAL JUDGMBNTS-No. l6. ( RccoBO
Tho jadgments delivered by the learned Judges were as
follows : —
Hth April 1907. Clark, C. J.— The facts of the ease are sufficiently given in
the followiDg jadgment of the learned District Magistrate ; —
The accused have been prosecuted mider the orders of the Goyem-
ment for an offence under Section 153 A of t^e Indian Penal Code.
The first accused, Jaswant Rai, is the Proprietor, Printer and Publisher,
and the other accused, K. E. Athavale, is the Editor of the newspaper,
Panjalee, which is published at Lahore. The issue of that newspaper,
dated 11th April 1906, contained two paragraphs, headed re6pecti?ely
"How Misunderstandings Occur" and " A Deliberate Murder,** and it is
alleged for the prosecution that the accused by publishing these paragraphs
promoted, or attempted to promote, feelings of enmity and hatred b^ween
two classes of His Majesty's subjects, viz., between Europeans and Natives.
The paragraph headed ** How Misunderstandings Occur" refers to two
cases of " oppreseion, ** which are alleged to have occurred at Rawalpindi,
and observes that a newspaper called the Telegraph wants the Viceroy to
order an enquiry into these cases. The paragraph then proceeds:—
" Has the Telegraph then such a great confidence in the panacea of
enquiry ? And are instances of manslaughter, yea ! even of deliberate
murder of Indians at the hands of European Officers so rare in India
that our contemporary should be ready to pin his trust to the impartiality
of an enquiry ? How many poor Indians have been mercilessly launched
into eternity in the past, for being mistaken for bears and monkeys,
or for having so-called enlarged spleens ? '' The next paragraph, which
follows immediately on the above is headed **A Deliberate Murder*' and
runs as follows :— " As to deliberate murders, unpremeditated, of course,
of Indians by irate, irascible officers, instances thou^ rare are not
wanting. Only the other day, two European Officers, of a district not
very far from Lahore, went out shooting on horse back, with a mounted
orderly. Amongst other denizens of the forest which fell to their joint
shots was a boar, a full-grown fat porker, which the pair of worthies laid
much store by to furnish them with the piece de resistance of two or
throe " heavenly " feasts. As soon as the animal was despatched they
asked their mounted orderly to carry the carcase secured to his saddle.
The man, who was a follower of the Prophet, however^ instead of com-
plying with the orders of the Hazoors, refused point blank to do then-
bidding, or even to touch the unclean animal. For a second they stood
aghast, petrified at his temerity but for a second only. The next moment
the Sahib recovered his wits, and saw that it was insubordinaticm oi
even worse, downright mutiny, and what is the reward of mutiny?
Why a short shrift and a swing into eternity. No sooner thougjit
of than this brilliant idea of the imperial hunter was put into
pracUce. He aimed at the poor Indian (who cared more for the
faith that was in him, his deen, than even the favour of his (^kial
chief) and shot him dead without compuncUon or remorse. If any
body was ever guilty of murder that identical Sahib surely was.
The BiiUsh Indian Penal Code might, perhaps, caU it culpable
homicide not amounting to murder. But it was nothing but murder
SiFTB. i907. ] CRIMINAL JUDQIIENTS— No. 10. ^5
in cold blood. That murderer is at large to-day enjoying the
privileges of the dominant race» and the sweets of life like any
innocent man. And - yet we have reason to believe that the matter
had soon reached the ears of the higher authorities. The only thing
done in the case, however, was to get the gentleman transferred
from the district and a dcw man put in his place with strict
injunctions not to allow the skeleton in the official cupboard to see
the light of day. And up to this time it has not seen the light
of day."
For the defence it is admitted that the second of the two
paragraphs cited above relates to the death of a police constable,
named Bafat Ali, which occurred in the Gujranwala District in the
year 1899. The gentleman who was alleged to have murdered
Rafat Ali is Mr. R. D. Spencer, who was at the time District
Superintendent of Police at Gujranwala. Both the accused admit
responsibility for the paragraphs referred to. They state that the
paragraph headed " A' Deliberate Murder,** was published on information
supplied by a reliable correspondent and corroborated by a volume of
written and oral evidence. They further state that they had never
known Mr. Spencer before and could not possibly have had any
malicious intention against him or against anybody. Both have
been charged with an offence under Section 153 A. of the Indian
Penal Code, and both plead not guilty. Some 40 witnesses have
been examined in the case, many of them at great length, almost
all of them deposing to facts or rumours connected with th« death
of Rafat Ali. The question whether the account given of the occurrence
in the Panjahee is true or not is not strictly relevant to the
question whether the paragraphs complained of have promoted, or
constitute an attempt to promote feelings of enmity and hatred
between Europeans and Natives. But the truth or untruth of this
account has an important bearing on the motives of the accused
and on the question whether they can rightly claim the benefit of
the explanation appended to Section 153 A. I will, therefore, clear
the ground by stating my conclusion as to the manner in which Rafkt
Ali met his death. The story told by the prosecution witnesses may
be summarized as follows : — On the 8th December 1899, Mr. Spencer
who was on tour at Wazirabad went out to see Mr. Donald, an
employee of Messrs. Spedding and Company, who was living in a
bungalow about-one-and-a half miles from Wazirabad in the Gujrat
direction, t. «., towards the north. The bungalow is close to the
Grand Trunk Road. Messrs. Spencer and Donald had arranged to go
shooting that afternoon in a jungle beyond this bungalow. Mr.
Spencer rode out on a horse belonging to Ram Narain, Deputy
Inspector of Wazirabad City Thana. He states that Ram Narain,
who is now dead, was rather afraid of this horse, and he (Mr.
Spencer) wished to show him that beyond being restive and pulling
slightly the animal was quite harmless. On arrival at the bimgalow
at some time fairly early in the afternoon Mr. Spencer was invited
by Mr. Donald to stay to dinner. He, therefore, made over Ram
Narain*8 horse to a constable, named Rafat All, with instructions to
^ OBIMIKAL JUDGMENTS-No. lO. [ Beoord
take it back to Wazirabad and to tell Mr. Spencer's servants that
he would not be back to dinner. Messrs. Spencer and Donald thei
went out with their guns, and strolled through the jungle. They
shot nothing : neither of them in fHct fired a shot. After dinner Mr.
Spencer walked back to Wazirabad. He found that his servants had
not received his message, and he heard next morning from Ram
Narain, just as be was leaving by train, that the horse had returned
without^ Rafat Ali. On the evening of the Sth December Ram
Narain sent word to the Wazirabad Sadar Thana that Rafat Ali was
missing, and on receipt of this information at 7 a. m., tbe next
morning, Nawab Khan, a sergeant of that Thana, sent out constables
to search for him. Nothing was found on the 9th December, but
at 8 P. M., on the IGth, one Bhola, an Arain cultivator, reported tt
the Sadar Thana that he had seen a dead body lying in the reeds
near the Sarinwala well. Ihis well is situate between Mr. Donald's
bungalow and Wazirabad. The Deputy Inspector, Karam Gband, being
absent prosecuting another enquiry, Nawab Khan went to the spot
indicated by Bhola, accompanied by several constables and zemin*
dare. The body was found lying in the reeds about 40 paces from
the Grand Trunk Road. The ground there is low-lying and there
are pits among the reeds from which earth has been excavated for
making or repairing the road. There wore hoof marks leading past
the spot where the body was found, and a few drops of blood,
which had apparently oozed from the mouth or nostrils of the
deceased. The body was taken to the Wazirabad dispensary, where
it arrived about dusk, and was made over to the Assistant Surgeori
Lachhman Das. The latter held a %>08t mortem at 10-30 a. m. the
next morning in the presence of Farhat Ali, the brother of the
deceased, who identified the corpse. The deceased was found to have
died from laceration of the brain and haemorrhage caused by a violent
blow on the back of the head. There was no mark of any bullet
or shot wound, but there were a number of bruises on the body,
which might have been caused by the deceased being dragged along
with his foot caught in the stirrup. The clothes were torn and
dusty. AU the injuries pointed to the conclusion that the deceased
constable had fallen from the horse on to the back of his head,
and had been dragged along for some distance with his foot in the
stirrup. Death may have been instantaneous or the unfortunate man
may have lain imconscious in the reeds for some hours. It is
improbable that he recovered consciousness before death. On receiving
Nawab Khan*8 report of the above facts Mr. Spencer ordered Karam
Chand, the Deputy Inspector, himself to attest the enquiry: the
latter did this, visiting the spot where the body was found, in
company with Ram Narain, the other Deputy Inspector, Hayat
Muhammad 8»Jkd/pohh and two lambardars. The result of the further
enquiry was to confirm the conclusions arrived at by Nawab Khan. |:
The prosecution story is supported at every step by the strongest
possible evidence : Mr. Donald is an impartial witness and beyond
the fact that he and Mr. Spencer were at the same schod, he
had no particular intimacy with the latter. He has given his evidence
Septb. IW. ] CRIMINAL JUDGMENTS- No. 10. 2"?
in a perfectly straightforward and convincing way and has stated on
oath that there is absolutely no truth in the allegations \hni either
he or Mr. Spencer shot a pig, that the latter asked his orderly or any native
to pick up a pig, or that on his refusal to do so Mr. Spencer shot him. He
distinctly remembers Mr. Spencer sending away a horse with a man who
looked like a policeman. The evidence of Karm Chand, Nawab Khan, and the
various other policemen who were employed in the investigation is also clea^
and consistent. It is supported by the independent evidence of Hayat Muham-
mad, Zaildar, Sardul Singh and Karam Din Lambardars, Amar Singh, Forest
guard, Pir Bakhsh, contractor, Bhola, the cultivator, who foimd the body and
Budha, another Arain cultivator, who was impressed to carry it to the hospital.
It is further confirmed by the evidence of Lachhman Das, Assistant Surgeon,
who conducted the post mortem. Kven admitting the argument that the
police officials were prejudiced by the fact that the head of their Department
was indirectly concerned in the death of Rafat Ali, there is no reason what-
ever for doubting the impartiality of the other witnessess, and the truth of
their statements is confirmed by the fact that their signatures were append-
ed to the police reports prepared at the time and (in th« case of the Assistant
Surgeon) by th • ponl mortem report. The most searching cross-examination
has served to confirm rather than to impugn thieir veracity, and has only
succeeded in eliciting such unimportant discrepancies as might reasonably
be expected to arise in oral evidence tendered about seven years after
the event. Beyond protracting this cross-examination to an unusual length
the defence has made no serious attempt to refute the story told by the
witnesses for the prosecution. Excepting Farhat Ali, the brother of the
deceased, whose evidence I will discuss presently, no eye-witness has been
produced, to depose to any of the circumstances in which Rafat Ali met his
death. Some of the defence witnesses have stated that the reeds in the
locality in which the body was found are always cut before the month of
December. They admit that reeds grow there and that contracU are given out
for grazing and cutting them. Although the road at this point is raised to a
considerable hei^t above the surrounding country, it is perfectly clear that
a corpse might well have lain hidden for a couple of days in a clump of reeds
among the pits by the side of the road.
I have observed above that the statements of many of the prosecution
witnesses were confirmed by the police diaries and the post mortem report.
Counsel for the defence objected to Karm Chand and Lachhman Das being
allowed to refresh their memories from these papers on the ground that the
papers produced were only copies and not original documents. It was, however,
deposed that the papers produced were really duplicates, one copy being k^t
in the Thana or hospital registers, and the other sent to head-quarters. It
has, moreover, been proved that the copies sent to head-quarters have been lost,
so that the entries recorded in the local registers are the only documentary
evidence available.
It has been contended before me in the arguments for the defence that the
disappearance of these documents is a suspicious circumstance and the truth
of this contention must be admitted, but I feel bound to draw a diiferent
inference from that put forward on behalf of the accused. These papers were
sent up to the Inspector-General of Police in connecticn with a petition
addressed to the Lieutenaot-Qovemor by 2Serafat-ul-Nisa, the widow of Bafat
28 CRIMINAL JaDQ]fENT8-No. 10. [ Bboobd
All, on the 28th February 1000. It was alleged in the petition that Ra&t
AH had been shot by Mr. Spencer, and the Inspector-General asked the
Deputy Inspector General, Western Circle, for a report on the case. On
receipt of this report the widow was informed that the Inspector-General was
satisfied that the deceased met his death from a fall from a horse and that
there was no foundatif n for the allegation that he had bren shot. The
papers were returned to the office of the District Superintendent, Police, Guj-
ranwala, and appear from the register of correspondence to have been receired
back there on the llth of May 1 W. When a search was made for them
after the publication of the articles in the Panjahee referred to in this case,
they could not be found. It is hinted by the defence that these papers were
abstracted in the interests of Mr. Spencer. Now it is perfectly clear that Mr.
Spencer would have nothing to gain from the disappearance of the documents.
He must have known, while his detractors very possibly did not know, that
duplicates were to be found in the local registers Moreover, the documents
had already been submitted to the hi^er authorities and he had thereby
been officially cleared of the imputation cast upon him. He had, therefore,
no reasonable motive for removing the papers. On the other hand, the
brother of the deceased, Farhat Ali, may well have thought that the papers
would furnish him with grounds for pressing the claim (to which I will ret&r
below) for a pension for his broth^'s widow, or an alternative which is at
least equally probable— the accused, Jaswant Rai, when collecting materials
for his version of the case in the Panjahee may well have thou^t that he
would embarrass the Government or obtain evidence incriminating Mr. Spencer
by getting possession of the documents in question. If, therefore, it is to be
inferred that the disappearance of the documents was not accidental, the
inferraice will not be favourable to the defence.
It has further been argued for the defence that no proper enquiiy was
held as to the cause of the death of Rafat Ali I am quite unable to follow this
argument. The enquiry appears to have been conducted in a perfectly
regular way by the police and the Tahsildar also was present at the most
important stage of it. It is stated by Nawab Khan, and the statement is
confirmed by the police register, that the TahsUdar, Muhammad Nakki (who
is now dead) saw the body of Rafat Ali at the hospital. It is further proved
by a letter written by Farhat Ali (Exhibit D-VII> on 2nd Febmary 1900 that
the Deputy Commissioner, Dewan Tek Chand, went to the locality, apparently
in consequence of an anonymous letter sent to him at the instance of Farhat
Ali, but no one came forward to irive evidence before him. It is most pro-
bable that if there had been any suspicious circumstance connected with the
death of Rafat Ali it would have been brought to the notice of one or other
of these responsible officials. Lastly, I come to the evidence of Farhat
Ali, who. though hostile to the prosecution and not altogether trustworthy,
has on the whole corroborated the story told by the Crown witnesses. He
admits that he saw Rafat All's body at tke dispensary and identified it He
states, probably incorrectly, that he had previously heard a rumour to the effect
that Baf at Ali had been shot by the District Superintendent, Police, and he also
says that the skull of the deceased had been dissected before he got to the
dispensary. He admits, however, that the skull was put together again* that
the body was made over to him, that he actually buried it and that he saw
no trace of a bullet wound. Now if this story is true, it offers the very
strongest corroborati(»i of the evidence for the prosecution For if Farhat
Septr. 1907. ] ChlMlNAL JUDGMENTS -No. io. 29
Ali really suspected that his brother had been shot, he would undoubtedly
have made the most careful examination of the body and would have called
all present to witness that there had been foul play. He made no protest at
the time, and when cross-examined on the subject he takes refuge in the
usual ey&sion ''behoah hu gia." For the reasons indicated below 1 do uot
believe thdt Farhat Ali heard any nmiour of Rafat Ali having been shot
before he saw the body ; but 1 think that the facts that he was present at
the dispensary while ihepost mortem was being conducted, that the body was
made over to him for burial, and that he has never alleged that it bore any
suspicious marks, are practically conclusive proof that the charge brought
against Mr. Spencer i^ unfounded. My conclusions on this part of the case
are that the Vanjubeea account of the death of Kafat Ali is utterly falso, that
it is pruved clearly and conclusively that Kafat Ali was not shot by Mr,
Spencer, and that it is practically certain that he diei from injuries received
from a fall from a horso. ihese conclusions arc, as already observed,
immaterial to the question whether the accused have committed the ofience
with which they aie charged except in ^o far as they bear on the question
ot the batid Jide6 of the articles in the ranjabee ; and in order to decide
this latter question it is necessary to consider not merely hat the facts
were but in what light they were presented to the accused. I, therefore ;
proceed to discuss the information which the witnesses for the defence have
shown to have been in the possession of the accused. It has been proved
that shortly after the death of Rafat Ali a rumour was prevalent that he had
been shot by Mr. Spencer. In considering the evidence as to the cause
of his death I have, as far as possible, put this rumour absolutely on one side.
It is clearly irrelevant in this connection, and I have only admitted the
evidence to the record in view of its possible bearing on thw bonO, fidea of
the accused, llie origin of the rumour can be traced without difficulty in
a number of letters, put in by the defence, which were written by Farhat
Ali to his nephew Abdul Hassan. These letters afford the chief reason for
the view which I have taken above tliat Farhat Ali did not hear any rumour
that Rafat Ali was murdered before he saw the corpse, and it is noteworthy
that in the letter, dated 5th March 1900 (Exhibit D. IX), he merely stated
that he was told that his brother was missing. From the first letter, dated
24th Beceiaber I8i>0 (Exhibit !>. Ill), it appears that some application had
been submitted to Mr. Spencer; what it was is not clear, but it seems
probable from the next letter ^.Exhibit D. IV), dated 3ist December 18u9,
that it contained a request for a pension or gratuity for Rafat AU's widow or
heirs on the ground that he died on duty. In neither of these letters is
there any hint that Rafat All's death was other than accidental, and it is
not till the t>th of February 19< 0 that we find any allegation that he hud been
shot {vide Exhibit D. VI) . This allegation was further elaborated in the
letter, dated 6th March 1900 (Exhibit D. IX}. It was clearly at the instant o
of Farhat Ali as shown in the letters that Rafat All's widow sent a petition
to the Lieutenant-Governor, dated 28th February 190c>, with the result
above referred to. Fai hat Ali admits that the widow was dependent on him,
and it is fairly obvious that his object was to induce the Government to
grant her a pension. It is from this small sordid seed that the scandal
appears to have sprung. The accused heard the rumour aud obtainei
possession of the letters Abul Hassan, who gave thorn the letters, and Nazir
Ali, the father of the widow, told their emissary that they did not kngw
go CRIMINAL JDDGMB;NT6--K6. lO. ( ttKalto
whether the rumour was true or false. This emissary, who is called Rama
by one witness and Varma by another, and who has not been produced before
me, obtained from Nazir Ali a statement of the facts of the case as alleg^ by
Zarafat-ul-Nissa, and atteseted by her thumb mark. This document has been
put in evidence. It bears no date, but is stated to have been wijtlen 8 or 9
months ago. It seems probable from the tone of the document that it was
either dictated or put into shape by the Panjahee*8 representative, and it is
noteworthy that in this document we find the first mention of the pig which
looms so large in the newspaper articles. A few other witnesses haxe
deposed that the pig had a place in the rumour which they heard in 1899. The
chief of these are two Oujranwala pleaders, Lala Uakim Rai and Lala Sardah
Mai. Without questioning the veracity of these gentlemen it seems open to
doubt whether their recollection of the vague rumour which they heard more
than six years ago has not been coloured by the revised version of it
promulgated in the Panjahee. It is at any rate significant that neither in
Farhat All's letters nor in Zarafat-uI-Nisa's petition to the lientenant-
Govemor, is there any mention of a pig ha\'ing been shot. In fact, the
widow states in her petition that Rafat Ali was shot either intentionally or
accidentally. If the incident of the pig had formed a part of the story which
was then being circulated it would almost certainly have been mentioned in
the petition, and the alternative of an accident would certainly have been
excluded. It is difficult to avoid the conclusion that the story of the pig was
invented by the accused or their servant.
The above are my conclusions as to the events to which the paragraphs
in the Panjabee relate and as te the information which the accused possessed
regarding these events. I now turn to the questioD whether in publishing
these paiagraphs the accused have committed the offence with which they
are charged. Section 153 A of the Indian Penal Code consists of two parts,
first a general clause, containing a definition of the offence, and then an
explanation. The object of the explanation is to exclude from the definition
certain acts which might otherwise be regarded as falling within it. It is,
therefore, necessary to consider firstly whether the acts done by the accused
constitute an offence under the general clause and, secondly, whether they are
not saved by the explanation. The general clause runs :—** WTioeverby
words, either spoken or written or by signs, or by visible representations, or
otherwise, promotes or attempts to promote feelings of enmity or hatred
between different classes of His Majesty's subjects shall be punished, etc/'
Counsel for the defence contends that it has not been proved tliat the
publication of the articles in the / anjabee has actually promoted any class
enmity or hatred. It is diflicult to prove that an effect of this kind has
actually occmred though 1 am not sure that it might not be assumed that an
article in a newspaper has produced the effect which it may leaswiably be
expected to produce in the minds of its readers. But it is unnecessary to
pursue this point because the law makes the attempt to produce the effect
equally punishable witn the production of the effect itself. I will, therefore,
consider only whethei* the accused have attempted to produce enmity or
haUea between different classes of His Majesty's subjects. Counsel far
accused No. I has raised two points as to the meaning of the words used in the
KecUon. He fiist pointed out that there was posably a distmclion in the
mnds of the legislature between " promoting " and " causii^ " an efiect,
SiPTR. 1907. ] CRIMINAL JUDOMBNTS-No. la 31
though he did not indicate what deduction was to be drawn from the distinc-
tion ; and he further contended that the enmity or hatred referred to in the
section must be reciprocal, in order to constitute the offence, ». e , that it is not
an offence to cause class A to hate class B if you do not make class B hate
class A. With regard to the first point I think that a slight distinction may be
drawn between promoting and causing : the word promote, derived from Latin
promoi^ere^ conveys the idea of moving forward, and has wider
application than the word cause. A man could not cause enmity
without promoting it, but he might promote, or give an impulse to,
enmity which was already existent and of which it might, therefore,
be contended that he was not the original cause. I hold, therefore,
that any man who does any thing to stir up or excite enmity or
hatred, whether latent or active, between class and class, promotes
the effect referred to in section 153 A. The second point taken by
counsel is I thmk a superfine dictinction. I do not think that the
words " enmity or hatred between different classes " necessarily imply
that these feelings must be felt on both sidas, and even if they do,
it is reasonable to hold that hatred on ona side tends to produce
enmity on the other. One class cannot hate another for long without
estranging the feelings of the latter, and if a man is shown to havo
caused hatred or enmity on one side he must, in my opinion, be
held to have "promoted" similar feelins^ on the other. T hold,
therefore, that if the accused have attempted to produce or encourage
feelings of enmity or hatred in the minds of one cla<<s with resrard
to another class of His Majesty's subjects their Act comes within
the definition of the offence given in Section 153 A. Counsel for
defence further contends that no attemnt to produce an effect can be
held to be proved until it is shown that the effect was intended.
This contention is, I think, reasonable, but it is also reasonable to
hold that when a man does an act deliberately he intends to produce
the effect which may be expected, in the natural course of things, to
ensue from his act. In the case for a newspaper article the best
evidence of the intention of the writer is to be found in the article
itself. It is part of the case for the defence that the paragraph
" How Misunderstandings Oe^ur " was published deliberately after
careful enquiry and I must, therefore, assume that the accused intended
and attempted to produce the effect which might reasonably be
expected to ensue from the puBlication of the paragraph. The
general argument in this and the preceding paragraph when read
together may be summarized briefly as follows :—
Murders of unoffending natives at the hands of European Officers
are of common occurrence. The murderers are not brought to justice,
and no Government enquiry into these cases cau be trusted. The
following deliberate murder, which occurred recently, is a case
in point.
Here we have a general statement and a particular instance.
The general statement would be comparatively innocuous, were it not
for the instance put forward in support of it. You may tell people
that they are being oppressed, and that their fellows are being
murdered with impunity, but you will not carry conviction unless yon
32 CRIMINAL JUDGMBKTP-^No. 10. I Kiccbd
•
can give them specific instances of oppression and murder. The
concrete fact appeals more to the imagination and creates a more
' Tivid impression on the mind than any number of general statement^.
In tVe CflFe row \mder consideration the picture was painted in
flaming colours. It was brought ^nearer to the public by repre*^nting
the occurrence as taking place " only the other day " instead of more
than six years previously. An appeal was made to the religious
prejudices of Mohammadans, and Europeans were held up to contempt
as eaters of pig's flesh. The dead man, Rafat Ali, was as it were
dragged from his grave, and set up as a martyr to his religion.
His murderer was represented as enjoying the sweets of life and
"the privileges of the dominant race." A picture like this put
before i»n uncritical Mohammadan youth would naturally make his
blood boil vnih indignation, and it would appeal also to
Hindu fellow <»ubjects. It would tend to excite all the racial and religious
passions which are one of the chief obstacles to the public peace and to the
well-being of the community. T cannot believe that the accused did not
intend or attempt to excite these passions ; I hold it to be absolutely clear
from the language of the paragraphs that the accused attempted to promote
enmity and hatred in the minds of the Indian subjects of His Majesty. I am
here met by an objection raised by counsel for the defence that the objects
of this enmity would not be the Europeans in India, but rather the Govern-
ment, or the European Officers of the Government, and that Section 153 A.
does not apply because, the feelings promoted, or attempted to be promoted,
were not between different clasFCs of the community. It is true that the
Government is attacked in these paragraphs, it being alleged that enquiries
into charges of murdering natives brought against Europeans are simply
burked. The logical outcome of this line of defence would be that the
offence falls more properly under Section 124 A. a much more
serious crime. The Government has not, however, prosecuted the
accused under the section relating to sedition, and I have, therefore,
to decide, not whether the section applies, but whether an offence
has been made out under the section specified in the complaint, viz.,
Section 153 A. Admitting for the moment that the attack is directed
mainly against European Officers, it might, I think, be maintained that
these officers are sufficiently numerous, and their characteristics sufficient-
ly well defined, to constitute a definite class. But I do not think that the
two paragraphs in the Panjahee refer only to this class. In the mind of
the ordinary reader little distinction would be drawn between the official
and the non-official. The great majority of the people of the country
know the European only through the official, and it is only in a comparatively
small number of trading centres or industrial areas that they are brought into
close contact with non-official Europeans. Moreover the feelings appealed to
are essentially religious and racial prejudices, and the expression " the domi-
nant race " used in the second paragraph makes the point sufficiently clear. I
hold, therefore, that the accused attempted to promote feelings of enmity
and hatred against the European subjects of His Majesty. I have thus
shown that their action falls under the general clause in Section 153 A.
and I have now to consider whether it is saved by the explanation. The
explanation runs as follows :— "It does not amount to an offence within
,Septr. 1907. ] CRIMINAL JUDOMINTS-No. 10. 83
the meaning of this section to point out, without malicious intention and
with an honest view to their removal, matters, which are producing, or
have a tentiency to produce, feelings of enmity or hatred between
different classes of His Majesty*8 subjects." It will be apparent from
what I have written above that the accused have no claim to the benefit
of this explanation. It is proved that they deliberately misrepresented
the facts connected with Rafat AU's death. They knew that it had
occurred more than m years before they wrote about it, and yet they
described it as having occurred *' only the other day." They knew that
there- was no proof that he was murdered ; the deceased's own relations
told them that they did not know whether the rumour was true or false ;
they had possession of Farhat Ali's letters and probably of a copy of
Zarafat-ul-Nisa's petition ; and they knew that the case had been enquired
into both at the time of the occurrence and afterwards at the instance of
the Inspetor-General of Police. In spite of this knowledge they stated the
rumour to be a fact and they added details which were not justified by
the information before them. They in all probability invented the story
of the pig, and they gave their version of the facts in the most virulent
and unseemly language, the terms of which the counsel for the principal
accused has not even attempted to defend. I find malice on the part
of the accused proved up to the hilt. It is further not proved that
the articles were written with any honest view to the removal of the
evils complained of. The defence has argued on the one hand that the
Government was attacked, and on the other that an honest appeal was
made to Government to have an impartial enquiry made into the case.
The two arguments are rather inconsistent and the former is evidently
more correct than the latter. I can find in the paragraphs themselves
no trace of any honest appeal to the Government. I, therefore, hold
that the explanation does not apply to the present case, and, finding on
the grounds detailed above, that both the accused have, by the publication
in the Panj ahee, of the two paragraphs cited above, attempted to
promote feelings of enmity and hatred between the native and
Eui-opean classes of His Majesty's subjects, I convict them both of an
offence under Section 153 A of the Indian Penal Code. With regard to the
punishment to be awarded counsel for the prosecution has asked me to
consider whether the olTence has not been aggravated by the conduct of
the accused, subsequent to the commission of it, and he has referred me to
the Civil Law of Libel and to the criminal law of seditious libel in England.
No case of a prosecution under Section 153 A. has been cited and the
present case is, so far iis I am aware, the first of its kind. It is, there-
fore, difficult to speak with any authority on this matter of aggravation.
But I think that there is a sound analogy between the law of libel and this
section of the Indian Penal Code. The principle which appears to me to un-
derlie the English Law of Libel, whether civil or seditious, is that, where a
man by making a certain statement, has damaged a person's reputation or
excited seditious feelings against the State, he can mitigate the harm done
by withdrawing or retracting the statement, and he can aggravate that harm
by persisting in it. Similarly, in the case of an offence under Section 153 A.
a man can often undo much of the harm that he has done by prompt and
public withdrawal of the statements which have stirred up ill-feeling. In
the present case the accused have attempted to do harm to the community
tt4 QAlMINAL JUDCUiBNTa-No. 10. [ Bbcoro
mainly by means of the publication of a false and mabcions account of the
death of Ralat AM. It has been in their power to reduce or magnify that hann
by their subsequent conduct, and I think that it is reasonable to hold that in
80 far as thej have done the one or the other, their offence ha« been mitigated
or a^raTated. Viewing the conduct of the defence from this standpoint,
there can be no doubt that it has seriously aggravated the offence. Throui^-
out thia kBg prosecution the defence has eodeavoured in its cross-eiaminatlon
ci the Crown witnesses to show that Uiere are still grounds for suspecting
that Rafat Ali was muidered. The accused*s advisers persisted in this
course long after the production of the pottt morttm report had proved that
the story was a lie, and they went ao far as to call witnesses to state that the
reeds in the place where the body was foimd are cut before December. Their
object throughout the trial has undouUedly been to induce people to believe
that thero were grounds for the asportioDs cast on Mr. Spencer, and throo^^
him on the European community. This view is confirmed by the astounding
statement made by counsel for accused No. 11 that the proceedings in
the present trial have left the circumstances of the death of Rafat Ali
shrouded in deeper mystery than before. I can only conclude that the
accused have no regret for the evil which they have done and that, on the
contrary, they have striven by every means in their power to increase and
perpetuate il. Not content with their original attempt to promote enmity and
hatred between class and class they have obstinately persisted in the attempt,
and have neither in the Court nor in their newspaper made any qualifioatica
of the malicioua and untrue statements which they have published. Their
ooiiduci in this respect consticutes, in my opinion, a serious aggravation of
the very serious oltence which it is my duty as a Magistrate to punish.
Jaftwant Rai, the accused No. I, is the Proprietor, Printer and Publisher
of the Pafijahe$, and has evidently been the prime mover both in the publica-
tion of the offending paragraphs, and in the subsequent conduct of the defence.
I feel that nothing shore of the maximum penalty will meet the ends of
justice in his case, and I, therefore, sentence him to two years* rigorous
imprisonment and to a fine of one thousand rupees, and in de&ult of pay-
ment of the fine to a further term of six months' rigorous imprisonment.
Athavale, the accused No. n, is the Editor of the paper and has presumably
acted under the influence of Jaswant Rai. Although this does not ezcu.«e
him from responsibility, a less severe punishment will, I think, be sufficient
in his case. I sentence him to six months' rigorons imprisonment and to
a fine of two hundred rupees, and in default of payment of the fine to a
further term of three months* rigorous imprisonment.
The learned SessioQS Judge maintained the conviction bot
reduced the nentenoe in tbe case of Jaswant Rai to six months'
rigorous imprisonment.
The case has now come before na on Revision and has been
argned before ns at considerable length.
Tbe firpt point with which I hare to deal is the meaning of
Section 153 A, Indian Penal Code.
The section itself is extremely wide, it ip however controlled
bj the explanation and b^ provision of Sectioa 196, Criminal
8ei>¥». 1907. ] CRIMINAL ItDOltEMItl^Ko. lo. ^
Procedare Ood^ whi«fa rmidtr tbe sanotioii of Ck>T«l*ftmeQt
Decevsary f^^r a prosecation under thra Bection.
The words need are *' promotes or attempts to promote
" feelings of enmity or hatred between different classee.*'
Tbe word '* promote " in Webster's Dictionary is said to mean
(1) to contribute to the growth, enlargement or prosperity o!
any process or thing that is in course ; to forward; to forther ; to
encouragef to advance ; to excite, and also •* to urge on or incite
another as to strife". A man may promote a thing without in-
tending to do so, as a matter of fact it often happens that a man
intending to promote one thing actually promotes the opposite,
ex. yr., measures intended to prevent drunkenness often increase
it. Free trade intended to promote the pros pci ity of the country
may iojui^e the country. It would therefore appear that apart
from " intention ** not being mentioned in the section it
forms no essential part of the meaning of the woid " promo-
tion.*'
However from the oon junction of the words *' attempt to
promote " with "promote ", I am disposed to think that it was
intended by the framer of the section that intention should be
an element in the ofiFenoe, and will act on this view. It is not
essential to the meaning of ** promotion " that the object arrived
at should be effected. That I take to be one of the differences
between ** promoting" and " causing*'. Cause implies effect.
Promotion does not. The promotion may fail of its object,
in this respect it may be a synonym for " foment." It is also
not essential that promotion shonld be with reference to
something already in existence. It would be possible to promote
hatred where amity had previously existed.
It is also obvious that enmity may be promoted as strongly,
or more strongly, by stories that are tme t^n by stories that are
false. I
The proved fact that a man is ci'uel is more likely to promote
enmity than a false allegation that a man is cru-'l.
Though the literal meaning of the section may be very wide
as I have indieated above, yet the section must be construed with
those limitations vfhkki govern generally tbe construcfticm <of
penal enactment*. It will «av« much writing if I concede at once
•^ that unless I were satisfied that the aocased had e conscious
intention of promoting, canning, or exciting (or whatever word
may be used) enmity and hatred, 1 would not maintain the
conviotiODw
gg CBIMIKAL JDDGMENI6-K0. 10. [ BBOOftD
I havestadied carefully the case Queen v. Bums (i). That
was a case under the commoD law of Ed gland, and thif> is a case
under the Indian Penal Code, and it is onlj the spirit that
pervades that judgment that is helpfal in deciding this case. I
feel nothing bat admiration for the spirit pervading that jadgment
and wonld wish to follow it entirely. It must be kept in mind,
however, that the law of England in different from the law of
India, and what is safe and legitimate in England may not be so in
India. Mr. Justice Cove thei-e advised the jury. *»If from any
" sinister motive, as, for instance, notoriety, or for the purpose of
"personal gain, they desired to bring the people into conflict with
** the authorities, or to incite them tumultuously and disorderly to
^* damage the propei ty of any unoifending citizens, yon ought
** undoubtedly to find them guilty. On the other hand, if yon
" come to the conclusion that they were actuated by an honest
" desire to alleviate the misery of the unemployed, if they had a
^* real and bond fide desire to bring that mieeiy before the public
" by jBonstitutional and legal means, yon should not be too swift
" to mark any hasty or ill-considered expression which they might
" utter in the excitement of the momer.t. "
This brings me now to a consideration of the articles with a
view to determine whether there is in them any conscious
intention to promote feelings of enmity and hatred.
Sir Arthur Strachey in ilueen-Emfress v. Bal Gangadhar
Tilak ^*), at pages lo9 10 142, gives very UEefnl guidance as to
how this 18 to be doLC. He says '* It may i.tt be easy to CApit-ss
'^ the difference in woidb; but lite diffeunce m tone and spirit
"and geneial drift between a writer who is trying to stir
" up ill-will and one who is not, is generally unmitj-
** takeable." 1 have carefully studied the articles and c»n come
to DO other conclusion than that there is in them apparent a
deliberate intention to promote feelings of enmity and hatred.
The arguaent for accused is that their intention was only to
secure that these cases in which the death of an Indian has
occurred should be properly esquired into and dealt with by
Government, and that though their language may have been too
violent, it was only so to secure this object, I am unable to
accept this argument, it is unnecessary for me to go over the
ground which has been covered by the Lower Court. The
Sessions Judge deals with this question as follows :—
** To return to the language of the paragraphs. I note that
the classes opposed are " Indians " and " European officers."
(J^) 16 Co«j Cr. Cas. 865. (•) /. L. R,, XXll Bom,, 112.
SfWB. 1907. ] CRIMINAL JUDGMENTS— Ko. 10. 87
It is not a question of officials and noD-officials, it is not alleged
that members of the gaverning ckss, whether Assistant
Comn^issioDers or Tahsildars are hard on the people oommitted
to their charge. The Europeans and Indians are contrasted .
Ooansel for the defence have referred me to the paragraphs in
the issne of 4th April. They were appealed fo as showing an
honest purpose running throughout.
I need only refer to the last sentence of the article headed
'' Another Story." The article deals with the accidental shooting
of a shikari by a European District Officer, and the death of two
natives, employed to carry the baggage of the Deputy Oommis-
sioner of Rawalpindi, from exposnre. The last sentence runs :
" Wo cannot help observing that had there been Indian gentlemen
" of even the highest standing and position concerned in similar
" affairs, they would long since have been deprived of their
liberty ". Here we have the same contrast intensified. The
European as opposed to the native. To proceed : The paragraph
headed *'How Misunderstandings Occur** mentions instances
" of manslaughter ; yea even of deliberate murder of Indians
<< at the hands of European officers ". The whole tone of the
paragraph is most inflammatory : note the words '* mercilessly
<* launched into eternity.*' A hit is mnde at the manner in
which pooi-mortem examinations are conducted in the expression
" for having so-called enlarged spleens." Then follows the
individual instance adduced to prove the general rule. The
expresaion ** European Officers *' again ocours. Then follows the
story of the pig, given as a fact, when there is not one iota of
evidence to prove it, or any attempt made to allege it by the
people best qualified to know of it till 6 years after it was
alleged to have occurred. Capital is made out of the unclean
habits of the Earjpaans in the eyes of the Mahammadan in
making a ** heavenly feast " of! k full-grown fat porker. A
contrast is drawn between this picture and the simple faith
of the poor Muhammadan. It is then alleged that the
sahib was guilty of murder, but the British Indian Penal
Code might perhaps call it culpable homicide. The article
concludes with an allusion to the dominant race and to the
fact that the higher authorities were shortly afterwards
apprized of what had occurred, bnt took no steps except to hush
the matter up.
In all this there is no trace of bond fide criticism of the
Government. There is no honest abuse of the Government. A
picture is presented in the most lurid colours of the habitual
reckloRsness of the European with regard to native life.
38 CRIMINAL JUDQMBNTS— Ho. 10. [ BlGOAO
The general statements therein made are sapported by a
speci6c story, given as trne fact, of the murder of a native by a
Earopean nnder the most brotal circamstances. The story
which is given out as trne is now shown to have been based on
one of the flimsiest of i-umours, the growth of which can very
easily be traced, and which the Proprietor and Editor of the
Panjabee must have known to be a rumour and nothing but a
rumour. To the colouring of this rumour they themsolvea
contrituted no small part.
The theory of the defence that the accused intended merely
to criticize Government, and published the ptory of the murder
as a reported incident that they believed to be true, abeolutely
falls to the ground.
This seems to me a fair oriticifim of the articles, and I may
note in addition to this that the articles put as happening only
the other day what happened in fact in 1899.
A good deal of argument has been addressed to us to show
that the accused had, as a matter of fact, g^ood ground for
supposing Rafat Ali had been shot, and that there has been no
proper enquiry. I do not think that this contention had been
established, granting that there had been a rumour, it appears
to have died out, or was only kept up by Rafat Ali's family,
who had an obvious motive for maintaining snch a position,
and an old rumour is no ground for a deliberate charge of
murder.
The death of Rafat Ali wa^ duo to a fall from a boriie.
There do not appear to have been any suspicious circumstances
connected with his death, and the enquiry made appears to have
been the usual one made on the occurrence of an accidental
death.
It was further argued that European and Indian are not
classes within the meaning of the Section.
In the general acceptance of the readers of a paper like the
Pan/fjbcc, Europeans represent the governing class, and Indians the
governed class. This may be gathered from the articles them-
selves where the Earopeans are spoken of as the dominant race.
The relations between the governors and governed must in
the nature of things always be of a delicate nature and have a
tendency to be opposed. It is only necessary to look back to
the mutiny to realize this, and I have no doubt that European
and Indian are classes within the meaning of the section.
Septe. 190^. 1 OEI^tlNAL JDDGMBN1«— No. 10. 39
I have no doabt in roy mind that the accnsed consoionely
intended to promote enmity and hatred on the part of Indians
towards Earopeans, and that they are not saved by the explana-
tion to the Section, and have been rightly convicted of an offence
under Section 153A., Indian Penal Code.
The conviction is for attempt! n^^ to promote, not for
promoting, and there remains one argnmont of Mr. Grey to
notice. He drew a distinction befween an intention and attempt
which no doabt exists, bat as accused had a conscioas intention
of promoting enmity, and published an article in parsnance of
that intention, they clearly made an attempt.
The question of panishment is a very difficult one. It is
perfectly legitimate for a paper to say that even justice is not
done between Europeans and In'liau^, and that proper enquiries
are not made into cases in which Indians meet their death at the
hands of Europeans, and to press these points by strong language
with the object of effecting improvement in the matter. The
contention may also be supported by instances, or even supposed
instances, if suppositions are not exaggerated into facts. There
is, however, a line which must not be overstepped, and writings
must not be couched in such a way as to have no influence on
Government, but only to excite enmity against Europeans, and
the contention must not be supported by fh^ invention of instances
or by representing idle rumours as being established facts.
The articles now under consideration are, as I have pointed
out above, very flagrant violations of the law in these respects.
As a punishment for defamation the sentence inflicted would not
be too severe. To charge an innocent man with deliberate
mnrder on totally insufficient ground is a very serious offence,
and the gravity of this conduct may be taken into account in
awarding panishment for the offence, of which the accused have
been convicted.
One of the accused, Jaswact Rai, is a young man of 25 and
an M. A., the other the Editor, age 45, must be a man of some
education, and it is extremely painful to send such men to jail. I
would gladly take into consideration that this is the first
prosecution under this Section, and that great license has
hitherto been enjoyed with impunity by the Press, and that a
lighter punishment might have the desired effect of keeping the
Press within the law.
. Also, that a sense of responsibility, essential in the conduct
of a paper, is not yet generally felt bj the Indian Press as it is
40 CEIMINAL JtJDGMBNTS-No. 10. [ ItccBb
by the English Press, and that this sense of responsibility may
be produced without violent means.
If I had sren on the part of accosed any recognition of the
wrongfulness of their conduct, or any sense of penitence or
prospect of improvement, I would have given effect to these
views.
I ha\e, h(wc\(r, t(cn iVt Ic He ic f'gn cf ttch an httifude
on the part of the accused.
Making allowance for the exigencies of this defence in this
case, their attitude has been a justification of their conduct. The
violence of the language has no doubt been deprecated by their
counsel, but this does not meirt the case. What was def^irable
was some retraction or apology in the paper to reach the
readers of the original articles.
With a view to satisfy myself as to what was the attitude
of the paper since this prosecution of the paper has been started,
I invited counsel to file the issues of the paper since that time for
perusal of the Court. Counsel said he would consult bis clients
on the subject, but the accused have not avaUed themselves of
the opportunity thus offered to them.
•> I see no sufficient reason for interfering with the sentence,
' except that I would alter the imprisonment from rigorous to
simple.
16th April 1907, RfiiD, J.— The petitioners, who are the Proprietor and Pub-
lisher and the Editor of a newspaper published bi-weekly in
English at Lahore, under the name of '* The Panjabee,** have
been sentenced to rigorous imprisonment for six months and a
fine of Rs. 1,000 and to rigorous imprisonment for six months
and a fine of Bs. 200, respectively, under Section 153 A. of the
Penal Code in respect of an article published in their paper on
the 11th April 1906.
At the tiial before the District Magistrate both petitioners
accepted full responsibility for the publication. Altiiough no
appeal lay to this Court, and the application was filed on the
revisional side, counsel for the petitioners was heard on the
evidence, so far as it affected the question of good faith, and
of absence of intention to promote or attempt to promote feelings
of enmity or hatred between different classes of His Majesty's
subjects, and of sentence.
The question of the truth or falsehood of the aocount of
Bafat Ali's death contained in the article was not directly before
us, hayiDg been disposed of by the Courts below, bat oonnsel
SiPTB. 1907. ] CRIMINAL JUDGMBNTS— No. io. 4X
for the petitioDers contended that his olienta had been prejudiced
by the action of the Magistrate in erroneonsly holding that two
qnestions pnt to the witness Jeremy were irreleyant. The object
of the qnestions was to elicit from the witness, statements
contradicting a denial by the witness Hajat Mnhammad of
haying told Jeremy '* last summer " (of 1906) << that the Pania-
bee^s account of the case was correct ". It was not contended
that the point was specifically taken in the Appellate Court and
a pernsal of the judgments below and of the evidence of Hayat
Mnhammad satisfied trs that the findings on the facts would not
have been affected by any answers which Jeremy might have
given to the questions. Hayat Mohammad's evidence, in examina-
tion in chief was merely that he remembered the investigation
into the death of Rafat Ali, 6 or 7 years before; that the Thane-
dar Karam Ghand called him ; that Bam Naraio, Sub-Inspector >
was there ; that the witness went to the spot., and that it was
found on investigation that Elafai AH had died from a fall froip
a horse ; that there were hoof marks and drops of blood on the
spot ; that Karam Ghand wrote a report and that the witness
figned it.
Hayat Muhammad was Zaildar of the village in which the
body was found and was summoned to the investigation in his
official capacity. Had the whole of his evidence been excluded
as the result of Jeremy's evidence, it is extremely improbable
that the resnlt of the trial would have been affected. For these
reasons the re-examination of Jeremy was not ordered.
The first argument to be dealt with is that the Court must
consider what view the pnblic woold tako of the language
complained of. This is correct, with the modification that the
word *' pnblic " must be understood to refer speciaUy to the class
or classes to which the readers of the newspaper presumably
belong. The next argument was that the trath of the state-
ments in the article is immaterial. This is incorrect in so far as
the intention is concerned. An obviously false statement of
date or material fact necessitates a consideration of the motive
for the statement, and the absence of any motive except that
charged may lead to the conclusion that the publication was with
the intention or motive charged.
The next argument was that the petitioners, though charged
under Section 15.S A., were convicted under Section 124 A. This
is incorrect. The reasons recorded for the eonvictions are
reasons justifying convictions under Section 153 A. and the oon-
Tietions were specifioally under that Section.
4^ CktMTNAL JUDGMENTS^Na 10. ( ftKm&
The next argninent was that Section 153 A. is ancillary to
Section 153, and that language which does not tend or is not
intended to canse a riot does not jastify a conviction nnder
Section 153 A. Thip is incorrect. Sections 124 A., 153 A. and
505 were enacted hy Act IV of 1898. Section 124 A. was inserted
in Chapter VI, which deals with offences against the State ;
Section 153 A. was inserted in Chapter VIIT, which deals with
offences afifainpt pnhlio tranqnillity, which may be of mind or
body ; Section 505, instead of being inserted in Chapter VII,
which deals with offences relating to* the army and navy,
appears in Chapter XXIT, apparently becaude the then existing
Section 505 contained some of the provisions contained in the
new Section, and the Section was not limited to offences relat-
ing to the army and navy. Section 153 A. is no more ancillary to
Section 153 than Section 124 A. to Section 124.
As laid down in Maxwell on the Interpretation of the
• Statutes, Edition 4, page 394-5, the paramount duty of the
judicial interpreter is to put upon the language of the legis-
lature, honestly and faithfully, its plain and rational meaning,
and to promote its object. It is true that, in cases of doubt,
Courts may be guided by the position in an Act of a particular
Section, but here there is no room for doubt. The offence made
punishable is I he promotion of , or attempt to promote certain
feelings between different classep, and the question whether the
actual or anticipated result of the promotion or attempt was a
riot or other breach of the peace is immaterial to the conviction.
The next arguments were that recklessness and intention
differ, and that every intention except that charged must be
excluded before the convictions could be maintained.
Reckless use of language might possibly result io the
feelings specified in the Section being promoted, and the question
whether there was mere recklessness or intention might have t^
be considered, but the convictions with which we are dealing
were of attempts and intention is a necessary element. This
intention may be presumed from the iBUguage used if all reason-
able alternatives are excluded.
The next argument was that it is impossible to prove an
attempt to promote. Where there is an intention and something
\s done with the object of effecting the result intended, there is
an attempt.
The next argument was that the existence of the feelings
specified must be established before any question of attempt to
promote them can arise. This isy in my opinioD, inooncet
Sbpti. 1907. ] CRIMINAL JUDOMENTS-No, lO. 43
Whether the feehoge which exist are of iDdiffepence or of frieDd.
ahip or of entity or hatred, anjthiDg which tends to convtrt
the two former into enmity or hatred or to increase the enmity
or hatred promotes feelings of enmity or hatred.
Feelings of some sort, necessarily exist between the English
subjects of Bis Majepty and His Indian sobjects for whose
pemsal the article in question was published. No Indian
reader of a newspaper can possibly be ignorant of the existence
of English fellow-subjects, and there cannot be m absolnte
absence of all the feelings above specified.
The next argument was that the word " classes " in the
Section does not mean " races " and that Englishmen and Indians
are not members of different clashes. I concur in the reasons
recorded by the learned Chief Judge for holding that this
argument is unsound, and that for the purposes of the Section
Englishmen and Indians constitute separate classes. The article
in question itself divided the members of the two races into
dominant and servient, though the word " race " was used.
The next argument was that the petitioners did not intend
to promote the feelings specified in the Section, but intended
only to urge the authorities to deal with a case which had not
been properly dealt with.
It was contended that the article of the 11th April must
be read with articles of the 4th April 1906, to whish it referred ;
that those arHoles commented on two other cases of oppression
and ill-treatment, which had not been properly dealt with ; that
if the persons concerned in those cases had been Indians, the
action of the police would have been diflFeront and the pei-sons
ooneerned would have been arrested and punished, and that the
results of the article of the 11th April have been a searching
investigation. The first point to be noted with reference to
these contentions is that, although the petitioners were folly
aware that the death of the mounted orderly, Rafat Ali, occur-
red in 1900, it was stated in the article in question, published in
April 1906, to have occurred only the other day. The conten-
tion that this mis-statement was due to ignorance of the English
language is hopeless. The publisher and proprietor is a Master
of Arts of an Indian University and the Editor is about 45 years
of age and has not attempted to establish ignorance of that
language. It ia idle to contend that a person ignorant of a langn-
age would have been selected for or could conduct the editorship
ofa^paper published bi-weekly in it. If a newspaper intended
for^biroulation amcmg Englishmen iu Natal were to contain
44 GRIMINAL JtTDGtfENTS— Ko. la [ Bkobd
an article describiDg barrowing iooideDis of the matiDy of 1857
and stating that they occnrred •• only the other day", the only
reasonable inference, in the absence of evidence or a reasonable
presamption of ignorance would be that the publication was
intended to hold Indians np to hatred, and the same inference
must, in my opinion, be drawn in this case.
The dicta of Cave, J., in Begina v. Bums ' and othtn
cited at the Bar and in the jadgment of the learned Chief Jadge,
and the dida of Fitzgerald, J,, in Begina y. Sullivan ('), cited by
Cave, J. are directly in point. A belief that Englishmen are
habitually cruel and unjust, and that equal justice is not meted
out to Englishmen and Indians, must necessarily inspire the race
which suffers by the cruelty and injustice with hatred of, and
enmity to the favoured race,^ and, although the allegations of
cruelty and injustice may not be believed, a man cannot, as
laid down by Cave, J,, escape from the consequence of
uttering words, with intent to promote such feelings, solely
because the persons to whom they are addressed may be too wise
or too temperate to be influenced by them. It is therefore
unnecessary to establish the success of the attempt.
Fitzgerald, J,, iu charging the Jury in Begina v. Sullivan^
said : '' In dealing with the articles you should not pause upon an
** objectionable sentence here or a strong word there. It is not
<« mere strong language, or tall language or turgid langu-
<'age that should influence you If, on the other hand,
"on the whole spirit and import of these articled, you are obliged
'* to come to the conclusion that they are seditious libels, and that
'Hheir necessary consequences are to excite contempt of Her
" Majesty's Government or to bring the administration of the
''law into contempt and impair its functions— if yoo come to
'Hhat conclusion, either as to the articles or prints, or any of
** them, then it becomes your duty honestly and fearlessly to
'* find a verdict of conviction upon sucli counts as you believe
*• are proved".
Applying these rules to the article of the 11th April, the
only conclusion which can, in my opinion, be arrived at is that
the petitioners were not betrayed by a desire to obtain justice
and to move the authorities to institute a proper investigation
into the use of strong language, but that the langaage used was
intended to promote feelings of enmity and hatred towai*ds the
race alleged to be cruel and unjust and favoured .
(^) 11 Oox cr. ca$. 44,
Smftb. 1907. ] CRIMINAL JUDGMMNT8— No. lO. 45
Reference to the Rrticles of the 4th April does not, in my
opinioa, help the pjticioners, and it is idle to contend that the
laagaage usod was a.sed iaadvertjntly or recklessly. The words
** are instances of mnoslaaghter, yea even of deliberate murder
** of Indians at the bands of Earopean oflScers so rare in India
" that onr contemporary shonid be ready to pin his trust to the
** impartiality of nn enquiry P"
" No sooner thought of than the idea of the Imperial hunter
<* was pufc into practiHC. He aimed at the poor Indian (who cared
" more for the faith that was in him, his dsQUy than oven the
" favour of his official chief) and shot him dead, without com-
"punction or remorse
** That murderer is at large today, enjjying the privileges of
'* the dominant race, " cannot, in my opinion, possibly be held to
have been published with the intention of rousing the authorities
to action in the direction of doing justice. The article in
question was, in my opinion, published with the intention of
promoting feelings of hatred or enmity between the English
an^ Indian subjects of His Majesty, und the publication con-
stituted an attempt punishable under Section 153 A.
Whether the petitioners were also inspired by any desire to
increase the circulation of the paper or by any desire for
notoriety or by any ill will to the persons against whom the article
was in general or in particular directed need not be considered
for the purposes of this case. The offence punishable is the
attempt, and, that being established, the only remaining question
is of sentence.
I concur in the reasons recorded by the learned Chief Judge
that sentences of simple imprisonment are necessary, and I concur
with him in the conclusion that the term of the sentence of
imprisonment passed on each of the petitioners should be six
months, and that the sentences of fine should be maintained.
Application dismissed.
46 GEIMINAL JUDOMSNTS-No. It [ BtcofcD
No. 11.
Before Sir miliam Clark, Kt , Chief Judge, and Mr,
Justice Shah Din.
iKlNG-EMPE ROR,— APPE LLANT,
Versus
HIRA SINGH AND OTHERS,— RESPONDENTS.
Criminal Appeal No. 93 of 1907.
Compovmding offence — Penal Code, Section li!!— Rioting —Incompetency
of Maciistrate to allow eompromiae in non-compounddble offences,
Heldf that the offenoe of riotiog under Section 147 of the Penal Oode
cannot under any oironmstances be lawfully oompoanded.
It IB tt/tra vires of a Stagistrate to allow a non-oomponndable offence
to be oompromised on the grounds that the offence committed might pro-
babty in the end turn out to be a oompoundable_ one or that theoonse-
quence of his action might probably, in his view, be better for the com-
plainant.
Appeal from the order of Sardar Bagbir Singh, MagistrcUe^ 1st
class, Jullundur, dated 20th October 1906.
Governmeut Advocate, for appellant.
Shah Nawaz, for respondents.
The judgment of the Court was delivered by
8th May 1907. Shah Dii, J.— After hearing the learned Government
Advocate and the counsel for the respondents, we think that this
appeal must succeed. The respondents were chdllaned to stand
their trial for the offence of rioting under Section 147, Indian
Penal Code. The Magistrate examined the complainant Kir pa
Bam at some length at the first bearing and then adjourned the
case to another date. On that date no evidence for the prosecu-
tion was taken, and as the complainant expressed a desire to
compouad the offence with which the accused persons were
charged, the Magistrate allowed him to do so and acquitted the
accused under Seotioa 345, Oriminal Procedure Code. Now, it is
clear that under Section 345 the Magistrate bad no power to
allow the offence of rioting to be compounded, as the said offenoe
is not mentioned either in sub-section (1) or sub-scetion (2) of
Section 345, and the order of the Magistrate acquitting the
accused persons wap, therefore, ultra vires. The reasons
given by the Magistrate for permitting the complainant to
compound the offence in question are^ so far as his power
to act under Section 345 is concerned, wholly unsound. He
says " it is probably better for the complainant to be on
"good terms with the accused who also wish for the
Septe. 1907. ] CRIMINAL JDDiiMBNTS— No, 11. 47
" com promise. It is quite probable that the case might in
" the end tarn out to be a caRe under either Section 323,
<'324, or 325, Indian Penal Code. I think that the case
" is really one under Section 324, Indian Penal Code, * * • #
'' I therefore declare this case to be one under Section 324 or
'* 325, Indian Penal Code, and allow the case to be compromised."
Now, the Magistrate did not take the eyidence for the pro-
secution at all as he was bound to do under Section 252, Criminal
Procedure Code, and his finding that the case was really one
under Section 324 or Section 325, and not one under Section
147, Indian Penal Code, was based upon a surmise. Counsel for
the respondents roHed upon sub-seotion (2) of Section 253,
Criminal Procedure Code, in support of the Magistrate's action,
but the latter did not proceed under the proyisions of the aboye
sub-section, inasmuch as the accused persons were not discharged
by the Magistrate, nor did he record any reasons for discharging
them so far as an offence under Section 147, Indian Penal Code
was concerned. The composition of an offence under Section
345, Criminal Procedure Code, has the effect of an acquittal and
not of a discharge, and therefore Section 253 (2) has no bearing
upon the case at all.
Moreover, the offence of rioting under Section 147, Indian
Penal Code, being an offence against the public tranquillity,
primarily concerns the State more than the individual, and that
is probably one reason why that offence is not included by the
legislature in the category of the offences which can be compounded
by the person immediately affected even with the permission of
the Court by which the trial is held.
For the above reasons, we hold that the order of the
Magistrate acquitting the accused persons under Section 345,
Criminal Procedure Code, was one passed without jurisdiction.
We therefore set aside the order, and direct the Magistrate to
proceed with the trial in accordance with law.
Appeal allowed.
48 ORIMIKAL JCDGMBNTS-No, 12. I
Rbyision Sidb.
No. 12.
Before Mr. Justice Shah Dm,
AMIN CHAKD AND OTHBRS,-.PETITIONERS,
Versus
KING.EMPEROR,— RESPONDEarr.
Criminal Revision No. 572 of 1907.
WitnesS'^Recalling uitnessei for eroBt'eramination after eht^y^ —
EwpenM — Crimincd Procedwre Code, 1898, Sedion 256.
Held, thftt nnder Sectic^n 256 of the Code of Criminal ProoedDre it is
the dnty of a M afpstrate to recall prosecotion witnepses for crosa-examina-
tion if the aooased so demands after the oharf^e is framed and has no
authority to refuse to do so on the ground (hat the accused has not
df-posifced the jecessary expenses.
Oase reported by S. W, Oracey, Esquire^ Additional Sessions
Judge, Ferozepore, on 2bth April 1907.
Jawala Pershad, for petitioners.
Dani Chand, for complainant.
The facts of ihis case are as follows : —
One Ismail purchased gur from the aconsed at rate of 6 seera per
rupee. The complainant offered to sell to him at rate of 7 seers per rupee
and Ismail returned the accused's gur. The aconsed 1 to 3 then iosulted
and abased the complainant and were joined by accused 4.
The accused on conviction by Lata Jagan Nath, exercising the powers
of a Magistrate of the Ist class in the Perozepore District, were sentenoed
by order, dated I9th February 1 907, under Sections 504 and 352 of the
Indian Penal Code, Amin Ohand to a fine of Rb. 15 or one month's rigorous
imprisonment ; Nnndn and Cbuhar to a fine of Rs. 7 each or two weeks*
rigorous imprisonment ; and Magbi Mai to a fine of Rs. 6 or two weeks*
rigorous imprisonment in default.
The proceedings were forwarded for revision on the
following grounds :—
The accused applied to the Magistrate that the prosecution witnesses
should be recalled for cross-examination after the charge had been framed.
The Magistrate did not recall them on the ground that the accused had not
put in the necessary expenses. This order was wronsr. The accused were
not bound to put in their expenses and it was the duty of the Court to recall
them. The defect seems to vitiate the trial and either the conviction
must be quashed or the accused given an opportunity of oross-examina^
tion.
The procedure contemplated in the Criminnl Procedure Code is that
the prosecution witnesses should be henrd, the charge framed nnd the
accused called upon to crosp- examine the prospcntion witnesses at one
Consecutive hearing, continned if necepSMy frcni day to day, and the
pofifr.h'cn w^1i»ff«P fhtnlri rot >e difchoigfd nil tie nrcPFrd have been
8»PT«. 1907. ] OEIMINAL JUDOMMNTS— No. 18. 49
qnesiioned whether they wish to oroM-exKiniTie after the charge. Where,
however, the hearing is not ooDBecntive, aa in the present oaae, and the
prosecution witneaaeg are allowed to leave before the charge is framed, it
ia t> e doty of the Magistrate to recall them, presumably at the pnblic
expense, if the aocnsed so demands after the charge is framed.
The jadgmeot of the Chief Court was delivered by
Shah Oin, J.— For the reaaonfl recorded by the learned 12^^ June 1907.
Additiiinal SeRsiona Jndge in which I fully concur, I quaeh the
ponvictiotis and Ben tences, which under the circamfltances were
illegal and direct the Magistrate to resume the proceedings at
the sf^age they had reached when he improperly refused to recall
the witnesses for the prosecution for the purpose of being
orosR-examined by the accused. The defect does not yitiate
the whole trial ah initio, and the proceedings as far as the
framing of the charges appear to have been quite regular.
Application allowed.
No. 13.
Before Sir William Clarh, KL, Chief Judge.
BASANT BAM,— PETITIONER,
Verstis } Revision Sidi.
KING-EMPEROR,— RESPONDENT.
Cnminnl Revision No. 673 of 1907.
Punkah Municipal Act, 1A91, Sections 02, 94 — Partition wall ot^r a
tharra — Authority to erect toithout the permission of the Contmittee-^Erection
of a building.
Held that hnilding a new partition wall over a tharra amonnta to
" erecting a hailding *' within the meaning of fieotion 94 of the Panjah
Manioipal Act, 1891, and as such requires Ranotion of the Committee aa
provided hy Section 92 of the Act.
Case reported by H. P. Tollinton, Esquire, Sessions Judge, Lahore
Division, on zOth April 1907.
Ocrt^l and Hari Chand, for petitioner.
Sangam Lai, for respondent.
The facts of this case arc as follows :—
On 1st November 1906, the petitioDer Basant Ram submitted certain
plans to the Municipal Committee of Lahore requesting sanction to certain
alterations, repairs and additions to his house. A few days after the residents
of the muhalla wrote protesting that the petitioner had carried out certain
alterations in his house without the sanction of the Committee.
50 OEIMINAL JUDGMENTS— No. 1 . [ Bbooad
The accused on smnmaiy conyiction by B. B. Anderson, Esqaire^
exercising the powers of a Magistrate of the 1st class in the Lahore District,
was sentenced, by order, dated 19th February 1907, under 6ecti<Hi8 92 and
164 of the Municipal Act to a fine of Rs. 50 or, in default, to one month's
simple imprisonment
The proceedings were forwarded tor revision on the following
gronnds : —
The &cts of this case are that on 1st November 1906 the petitions- sub-
mitted certain plans to the Municipal Committee of Lahore requesting sanction
to certain alterations, repairs, fuid additions to his house. The application for
sanction contains the following words : -
The places marked A and B a^e to be newly built : and the yellow coknr
shows the petty repairs and alterations (vide plan on Municipal file).
A few days after the application the residents of the mmhaUa wrote
protesting that the petitioner had carried out certain alterations in his hoose
without the sanction of the Committee.
The principal objection urged was against the alleged endosuie of what
the mohaUadan described as a public well.
I may say at once that there is no evidence as far as the present prosecu-
tion is concerned, whether the well is public or private. A prosecution was
ordered under Section 92 of the Municipal Act— (vuie also the Lahore Building
Rules published under Notification No. 207, dated the 9th May 1898).
On a summary trial the petitioner was convicted and sentenced to a fine
of Rs. 50 or, in default, to one month's simple impriscnunent
It is admitted by the Magistrate that the new construction marked in the
plan as A and B being a saboe or shed on the top of the roof hasnotbeoi
carried out.
Petitioner alleges that this is all he meant to obtain sanction for, thoo^
he showed in the plan the petty repairs and alterations for the information of
the Committee.
As the 8<ibat has admittedly not been constructed, it remains to consider
whether the alterations and repairs do amount to re-erection within the
meaning of Section 94 of the Municipal Act or not.
The allegations against the petitioner are (I) that he has constructed an
additional wall ; (2) that he has widened the door of the house ; (3) that he has
constructed a roof over the balcony ; (4) that he has built a tharra. As
regards (1) Mr. Stubbs, Assistant Engineer, has filed an affidavit with the
appeal in which he states that the wall is 2 feet 10 inches deep and has been
put up to support an old beam which had sagged. He further alleges that this
support adjoins the wall and is on the original foundation. I am of opinion
that this support does not come within the purview of Section 94 of the
Municipal Act
As regards (2) the Note to Section 94 in Fenton's Manual states that *' tt#
" opening of a new door in uall would not appaiently he erecting a huOding,''
Much less then would Section 94 apply to the widening of an existing door.
Septe. 1907. 1 0B1MI!J*L lUDG MSK'TS-Na 18. 5 J
As regards <8) the Magistraie says '' there were no indications of a roof
" haying been in existence before. **
The Assistant Engineer on the contrary finds that there were distinct
indications of an old roof, the zinc roof simply replacing a former chajja roof.
With regard to (4) the Assistant Engineer states ''the wall indicated as a
'* tharra is not new but part of the original building. **
I forward the file to the Chief Court under Section 488, Criminal
Procedure Code, with the recommendation that the conviction and sentence
may be set aside for the following reasons :—
(t). It was largely a question of expert opinion as to how far the
building had been altered.
(2). The Magistrate relied too much on his own observations.
(8). Considering the intricacy of the case the Magistrate was wrong in
not applying Bection 260 (2) of the Criminal Procedure Code.
(4). Taking the affidavit into consideration it would appear that no
" erection " or '* re-erection " within the meaning of Sections JJ of the Munici-
pal Act has taken place
The jadgment of the Chief Ooart was delivered by
Clark, C. J.— It was on let November 1906 that Basant ^^h June 1907.
Ratn applied to the Manioipal Committee for sanction (1)* to
baild certain erections ; (2) to make certain alterations, repairs
and additions, marked yellow on the plan filed by him.
Without waiting for any orders he proceeded to make the
alterations, this was fonnd oat on I8th November and his applica-
tion was refused on 29th November 1906.
He appears therefore to have acted in an arbitrary and
high-handed way. One of the additions made by him is admittedly
of a new partition wall from the floor to the roof of his tharra.
This divides off the part of the tha/rra in front of bis shop from
the part in front of the well, it stops access to the well by the
steps formerly used for this pnrpose. To meet this diflScnlty
Basant Bam built a tharra or step in front of the tharra in front
of the well, intending access to the well to be had in this way.
The Municipality however have made him remove this tharra
OS erected without sanction.
The question I have to determine is whether this building
of this partition wall was erecting a building within the meaning
of Section 94 of the Municipal Act. It seems to me to be clearly
a material alteration. The affidavit of Mr. Stubbs as regards this
wall is irrelevant, it is immaterial whether it was useful to
support as agged beam, the important point is thnt it blocks access
to the well, and admittedly there was no wall there before and
when ^® ^ys ^^ ^ ®^ ^^ original foundation, I suppose he means
52 O&nilNAL JUDGMBKTS-Mo. 13. [ Becou
that it is on the existing tharra. Though a tharra mny be a
private property, yet the spaoe over the tharra really forms part
of the street, as far as regards light aod ventilatioa, and a tharra
could not be enclosed, and a partition wall is only a minor fotm
of enclosure.
The erection of this partition wall was in my opioioa an act
which involved important interests of the pnblici and effected a
material alteration of Basant Barn's hoaffe as far as the pablio
and Mnnioipality were concerned and required sanction of the
Committee. The order of the Sessions Judge was ex parte witbont
hearing the Mnnicipal Committee, and the affidavit of Mr. Stnbbs
was subsequent to the decision of the case.
On the admitted facts it seems to me that the building baa
been materially altered, this does away with any alleged irregu-
larity of the Magistrate.
The revision is dismissed and the order of the llagistrate
maintained.
Dic». 1907. ]
tJRitolWAL JUDGMENT8-K0, U.
53
No* 14.
Before Mr. Justice Rohertaon.
8HBR SINQH,-PETITIONEB,
Versui
KING BMPEROR,-RBSPONDENT.
Criminal Bevition No. 886 of 1907.
Em^ Act, 189«, 8ection$ 80, 81, 46 (cy—JlUgally importivg foT0ign
Uqvor into ihe territory to v^hieh thi$ Act esrteiid8.
HM, that the introduction of any quantity of foreign liquor, however
amall, and for whatever purpose it may have been imported into any of
the territories to vhich the Excise Act, 1698, extends, is illegal and
punishable under Section'Ts (c) of the Act
Cafe reported hy C. B. AtJcine, Esquire, Beaions Judge, Ferogepore
Division, on 6th July 1 907.
Tbe faotR of ibi8 case are as follows :-—
The accused Sher Singh, a Jat of Moumq Chak Munianwala in the
Ferozepore District, had gone on some business to Eotkapura (Native
State) where he purchased one bottle of liquor from the liquor vendor
there. He drank about one-third of the bottle and returned to his house.
On his way home he was searched on suspicion by the Railway Police
at the Muktsar Railway Station, and two-thirds gf the bottle of liquor was
found in his possession.
The accused pleaded guilty to the charge, and if his statement is to
be believed, he had purchased the liquor for his use with a view to
escape from the plague epidemic then prevailing at Eotkapura.
The accused en ccnTicticn ty Isla Lslhu Bam, M A., exerdsingthe
powers of a yagistrate of the 1st dass in the Ferozepore District, was
sentenced, by oidcr, c'efed l?th ITsy 19(7, under Section 46 to Bs. 19*8
{ine or one month*s simple imprisonment in default
The proceedings were forwarc'e for reyisioD on tbe following
grounds s—
This is a case reported by the District Msgistrate, Ferozepoie,
whose note accompanies this order.
With regard to opium the rule is clear. Bult 88 (1) allows any
person to import opium in such form and qusntity as he may lawfully
possess, and it is laid down by executive order that this is to be interpreted
as referring not only to opium nrsnufactured, impcrtcd, or purchased in
a manner authorised by rules under the Act, but to all opium.
No clear directicns have been issued regarding spirit, but I should
certainly read Section 81 of the Act alcpg with Section 80, end hold
that so long as tie quantity dees not exceed that which a person is
permitted to rossess, he has ccnmitted no oiTence puniFhable under
Section 46 (1) (c).
In the present case, as the District Ifsgistiate points cut, the qTtitity
imported was less than the quantity which a person is pennitted to possess.
Binsiox 8|BI.
54 CEIMINAL JUDGMEKT8— K«. l5. t BbooeB
I fabmit the cane to the Chief Court for order as no appeal
liee against the coaviotiOD.
The jodgmeDt of the Chief Conrt was delivered bj
3rd Auatui 1907. ROBtBTSoN, J. — I am afraid I am unable to coDcnr in
the view taken by the learned SesaioBB Jndge. I think Section
46 (1) (c) makea fbe intrcdoction of any quantity of foreign
ppirita illegal, however email. The necessity or advisability
of a prosecntion in any partienlar cafie is another matter,
bnt I think, after f*onsnlting a brother Jndge on this pointy
that the offence has clearly been committed. In deference
io the opinion of the local o6Scer8, while maintaining the
conviction, I reduce the fine to pne of Bs. 2-8 only.
B&fore Mr. Justice Johnstone and Mr. Justice Lai Chand .
iWAUDlD alias WALTA,-.PBTITIONEB,
Versus
KING EMPEROB,— RESPONDENT.
C^riminal Revision No 562 of 1907.
Mnfry on th§ roof of a huildiftg v%(h a »Uek and 8andheya~il^iiip< f«
wmrnit houie^hreaking hy night — Crimincd tr99pa$$ -Penal Ood4, S^ctunu
449, 447, 467, 611.
The accused, who had mounted upon the roof of the complainaiit*s
house armed with a stick and a $andh«va, was oonvioted of an attempt' at house-
breaking by night under Sections fH of the.Penal Code.
SM, that he was not guilty of tbeloffence charged as mere presence en
tiie roof of the house could not be construed into an attempt to commit an
offence under Section 611, bat that he was guilty! of ciiminid trespass
punishable under Section 447 of^the Penal Oode.
AUa Bdkhih v. Bmpr$u (>) referred to.
Ps^tionfor revision of the order of WyOkevit, Siquire, Sessiom
Judge, BiaUcot Diviiion,' dated 9th March 1937.
Jowala Parahady for petitioner.
Tbia was a reference to a IXvifdon'^Bench made I7 Chaiterji,
J., to determine whether entry npon the roof of a hotae with a
stick and sandheva amounts , to an attempt to commit henie-
breaking by night,
Tha order of reference by^lite^ leaned Jud^e waa aa
foUowa s—
iOih June 1907. Cbaitkbjt, J.^In tkVcaae the accused^ waa fbncd on thereof^
uuderatand, of the complainant, anA^alter'atrilrfng at 1dm with
" '' (•)«P,lttl887.0r.
DlCB
190i^. ] GBiuiNAL iUDGMBNTS— Ko. il ^5
a stick bad a straggle with bim and jumped ii tu the ynrd of a
neighboaring hoase. He dropped the stick and a sandhevi or
hoQse -breaking iuiplemont in the coarse of the straggle.
The accused has been convicted ander Sections _^L and sen-
611
tenced to two years' rigoroas imprisonment. It id argaed that
there was only a preparation'and not an attempt of hoase- break-
ings and AUaBakhsh "7. The Empress (^) is q noted in support
of the contention. I am somewhat doabtfal whether that
raling is exactly applicable, but I refer the qnestion to a Bench.
Upon the xeference to the Diyisios Bench the following
judgment waa delivered by
Lal GflAin), J.— The facts of this case are stated in the g^;^ August 1907.
referring order. The question is^ whether on the facts found the
petitioner was rightly convicted of an attempt at house-breaking.
The matter is not entirely fiee from doubt, but on very similar
facts the accused iu Alia Bakhsh v. The Empress {^) was found
to be guilty and convicted cf mere criminal tiespass. All that
is proved iu the present case is tlat the petitioner accused was
found On the roof of the complainant armed with an imple*
ment used for the pm^cse ci cimmittiDg buiglaiy. Iheie is no
evidence to bhow that he Lad eiiLer ctmaeiictd to dig a holu
on the loof for the purpose of effecting his entrance inside the
loom or had otherwise commenced any act for jumping or getting
into any portion of the pi^mises. Unaer the oiicumbtancts his
mere presence on the locI cl tLt? Loute cannot be constiued into
an attempt to commit an offence under Section 511, luaian
Penal Code. In oider to apply Seciion 511, Indian Penal Codei
it is neoessaiy not merely that there should be an attempt to
commit an offence, but likewise that an act was done as such
attempt towaids the commibsioii of the offence. Mere passing
on the iouf oi the Lou^e cannot in any sense be termed an act
towards the commission of the burglary. It is an act of appi-oaoh
towards the houbo for the purpobe ot stealthily effeotug an
entrance into the premises, but can haidly le said to exceed the
limits of mere preparation. While on the roof the accused had
yet time to make up his mind to recede or attempt an entranoe
according as he found his opportunity or the state of vigilance
inside the premises. It cannot be said that by his presenue on
the roof of the house he had finally couimitted himself to
committing the offence of house- bieaking. We, therefore, hold
that the petitioner ought to have been convicted of mere
{')9F,B. 1887, Cr,
I
kg CRIMINAf. JUDGMBSTS-Na ftiooBA
criminal trespass uuder Seofcion 447, Indian Penal Code, and nofc
of an attempt to commit hoase-breaking nnder Sections — ^^» *°"
we alter the conviction accordingly. The accused has already
undergone the maximum famount of imprisonment awardable
nnder Section 447, Indian Penal Code. We, therefore, direct his
immediate release from the jail.
BBV1810N SiDI.
No. 16.
Before Mr. Justice BoberUon.
LACHHM N DAS,— PETITIONER,
• Versus
KIKQ EMPBROE,— EKSPONDENT.
Criminal Revision Na 97 of 1907.
FicUtious dMd of gule^Eaiecution of, to avoid pre-emption^DuihoHSstly or
Fraudulently— Punal Code, S^ton i2!!A,
Held, that the execution of a fictitious sale deed in order to defeat the
fiftim of a pre-emptor amounUi to a di6holie«it and fraudulent execution of a
deed within the meaning of Bection 123 of the Penal Code.
Petition for revition of the order of MauM Inam Jli^ bes^unu
Judye^ t'yhahi^ur Vivisiun, Uated 3rii January 1907.
Naoak Chaud, forpt^titioner.
Petman, for respondent.
The judgment of the learned Judge was as follows : —
i8i& April 1907. Eobkhteon, J.— This is an application for i^viaion in a
somen bat unusual cane. The faclb which ara found and must
be accepted are as follows :^*
One Lacbhmnn Dhp, a Sahokai* Khatii, purchased certain
land fioui one Sultan Bibi on 24th March 19v0. Ueaiing the suits
for pre-emption were pending, Lachhmau, on 22ud Mar-ch I90l,
sold the la lid bj registered deed to one Ismail, who had, or was,
bi'lievtd to have a right of pie-emption superior to that of the in*
ieudiug |.re-em{ toi-s. A soit for pie*emption was actnallj
commenced un 23rd Apiil 19ul and in that Lachbmau pleaded the
Bale to Jtiiuail. I'hat suit failed for variojj^ churcs, not being tiied
un the merits, and when Ibmail bought mutation of the Und iu
his name, Lachhman urged that the whole tr*ansaction of sale to
Ismail was &-fitioo8 and entered into sole! j to defeat the pt««
emptor's claim. This is an application fui* revision, and 1 ^osl
bio*
6Bliti»AL jtJDdiiiBkr'ril-So. iff.
5?
deal with'it on the basis that the sale by Laohhman toUmail was
in fact a fiotitioas sale, executed for the purposes of defeating a
salt for pre-emption. It was, thei-eforoy dearly frandalent an
di8hone6t^>nd oonstitated an ofiEeooe nnder Seotion 423, Indian
Penal Code, for in the first plaoe it is fonnd as a fact that ino
consideration passed, althongh Bs. 300 was stated to have passed,
and that it was not in fact intended for the benefit of the
nominal pnrohaser Ismail. The general principles to be applied
are laid down in Gnrdttia Mai t. The Em^peror of India OY No
donbtsnoh fraudulent transactions are freqnently resorted to to
defeat daime for pre-emption, and possibly it is not always
realiied that they render the perpetrators.liable, as they do, to
prosecution and punishment under Seotion 423, Indian Penal
Code. A mere nominal punishment will not meet the case, but
under the eiroamstances, I think, it will be sufficient to maintain
the conviction, and the sentence will be reduced to one of Hs. 100
five or six weeks' rigorous imprisonment, the sentence of
substantiTe imprisonment being reduced to the amount already
undergone. The petitioner may be discharged from bail*
No* 17.
Be/ore Mr. Justice Beid.
HABNAM,--APff£LLANT, \
Verime \ AmiLAii Bins.
KINO BMPEBOB,— BE8P0NDENT. \
Criminal Appeal Ko. .29l.of 1907.
OHmmol Procedure Cod^, 1886, BBctian b6S^Appi$cMlity qf to 609$$ rf
$^U$mft$ pwn%$kahl$ und$r 8$eti$% 511 oj th$ P$tuU Cod$.
H$ld^ that Seotiou &(i5 of the Code of Orimioal Procedure, 1898, does not
apply to persons conTicted under Section 511 of the Penal Oode.
A]pjpeal from the order of Q. Q. Hefmqu$$^ \ Eequire^ tHitrid
Magietraie, Kamal, doled IWk Aprd 1907.
The judgment of the Chief Ooort so f ar as Ih material for
the purposes of this repoi-t was deliveied by
BwD, J.— 23nl Jtdv 1907.
The order under* Seotion •^665 uf the Oode of Criminal
Procedure is, however, illegal.
The language of the first few lines of that seotion and of
Section 75 of the Penal Code is practically identical and
' OlOP.&W^iOf
• ^§ ^BIKli^AL iuDdMBNTB-i^ 18.
BlTIUOIf SlOB.
the NttaoQ for whicb it has been inT^riably held that
SeotioQ 75 does not apply to attempts equally preolnde
the applioation to them of Section 565. An attempt to
oommit an offence pnoiahable under StMstion 457 of the Code
is poniabable nodec Section 511 not nnder Chapter XJI or
Chapter XVII of the Code.
For these reasons I set aside the order under Section 565
of the Code of Criminal Procedure.
To this ettent only the appeal ia allowed.
Appeal allowed, ,
No. la
Before Mr, Justice Reneinyton.
I RAM SINGH,— PETITIONBB,
Verifue
KING fiUPEROEt,— RESPONDENT.
Cctminai Revision No. 404 of 19C7.
ApptUaU Court— Jur{$diction cf, to t««t the legalUy of a conviction pa$9§d
against a youthful offendw— Reformatory Bchoole Act, Till of 1897, Heeticm 16«
fl«ld, that Section 16 of Ihe Beformatory Schools Act, Vm of 1897. does
net relieve an Appdlate Ooort ef the duty of finding whether a cooTictioa or
sentence passed against a youthful offender is legally maintainable.
It only pieoludes a Court of appeal from altering or reyising any order
passed by the original Court with respect to the age of such offender or the
substitution of an order for detention in a Reformatory School far trans-
portation or imprisonment.
Petition for revieion of the order of F. T. Diwon^ Sequiref
SeegUm Judge^ AmriUar Division, doled 14«4 Deoembef i90e.
The judgment of the learned Judge was as follows i— •
,^ J * 1907 KxBaiiiGTOV, J. — The circumstances of this esse are as follows >-»
* The Magistrate by whom the petitioner was tried appears to have
thought him guilty of an affence under Section 240, Indian Penal
Codci but did not formally couYiot him under that or any other
section. He merely referred the case to the District Magistrate
under Act YIII of 1897, with reference apparently to Section 31
(4^ of the Act.
The Dbtrict Jfctgistvate treated the case as a- reference under
Section 9 (1) of the Act and senteooed the petitioner to a yisar's
imprisonment withoot mentioning the section of the Indian Penal
Code under which this sentence was awarded. He then dealt
yrith the petitioner under the Befonnatoij^ Act*
DiOB. IdOl OMMINAL JUDOMENTS-No. li. 69
The petitioner appealed to the Seeflioii« Jndge against the
oonviotion and sentenoe. Nearly tYie whole of the rery brief
order» dated 14th December 1906, of the Seseione Judge merely
discnsflen the question of the propriety of the course taken under
Act VIII of 1897, though Section 16 of that Act expressly
precludes Courts of either appeal or rerision from interfering
on the point. He disposed of the appeal in these words at the
end of his order.
'* J find no reason to interfere and no ground of appeal
'' requires particular notice. This appeal is dismissed."
I must hold that this judgment does not sufficiently comply
with the provisions of Section 424 and Section 367, Criminal Pro-
cedure Code. The Sessions Judge has not applied his mind to
the real grounds of appeal before him or considered any of the
points which obviously have to be dealt with in the case of
prosecution of a child under eleven years of age, whether his con-
viction be taken to be under Section 240 or Section 241 »
Indian Penal Code. Section 16 of Act YIII of 1897 does not
relieve an Appellate Court of the duty of seeing whether a
conviction or sentence are maintainable.
A copy of this order will be sent to the Sessions Court with
directions to readmit the appeal and dispose of it by a judgment
in accordance with law after giving fresh notice.
AppUeatfon att(npe4.
INDEX
OF
CRIMINAL CASES REPORTED
IN THIS VOLUME, 1907.
The references are to the Sos, given to the eases in the " Record, "
— —
A
ACTS :-
XLV of 1860- See Penal Code.
I of 1872— See Evidence Act, 1872.
XX of 1891— See Punjab Municipal Act, 1891.
XII of 1896— See Excise Acjt, 1896.
YIII of 1897— See Beformatory Schooh Ad, 1897.
V of 1898— See Criminal Procedure Oode, 1898.
APPELLATE COURT.
1. Security for keeping the peace on convictions^ Appellate Court not
competent to demand where Magistrate not empmcered by law-^Criminal
Procedure Code, 1898, Sectioiu 106, 5.30.
See Becognizance to keep Peace ... ... ... 6
2. Jurisdiction of, to test the legality of a conviction passed against a
youthful offender under Act VIII of 1897.
See Beformatory Schools Act, 1897 ... .. ... 18
ATTEMPT TO CBEAT.
See Cheating ... ... ... 1
ATTEMPT TO COMMIT OFFENCE.
Section 565 of the Code of Criminal Procedare, 1898, does not apply
to persons convicted nnder Section 51 L of the Penal Code ... 17
ATTEMPT TO COMMIT HOUSE-BREAKING.
Entry on the roof of a building with a stick and sandheva— .^f^ernp^ to
commit house-breaking by night — Criminal trespass -Penal Code, Sections
442, 447, 457, 51].— The accused, who had mounted upon the roof of
the oomplaiuant's bouse armed with a stick and a sandheva, was
convicted of an attempt at hoose-breakiDg by night nnder Sections ^ff-
of the Penal Code.
Held that be was not guilty of the offei.ce charged as mere presence
on the roof of the house could not be corstrned into an attempt to
commit an offence nnder Section 511, hot that be wafl guilty of criminal
trespass punishable under Section 447 of the Penal Code ••• ••• 15
INDEX OF CRIMINAL OASES REPORTED IN THIS VOLUlfB.
TKe rrference$ are to the Kos. given to the cases in the " Record, **
No.
B
BBLOOblSTAK.
Competency of Courts of Session in British Belochtstan to exercise
jurisdiction over European British subjects ^Regulation VIII of 1896,
Sections 3, 21.
See European British Subjects ... ... ... 5
c
CANTONMENT CODE, 1899.
Section 94.
And Section 104t^^Sotice — Validity of notice under Section 9^ issued by
a Cantonment Magistrate on his own aiUhority ^Material defect, — Held
that a notice porported to be atid^r Section 94 of the CaDtoument Code,
1899, and issoed by ft CaDtonment Magistrate on his own aothority and
not in pnrBuance of any order or tesolation of the Cantonment '
Committet) being altogether illegal a person cannot be convicted under
Section 104 for non-compliance therewith.
The aothority to issne notioes onder Section 94 being Tested by the
Code in a constitnted committee or anb-eommittee the defect was not
merely one of form curable4>y Section 291 but an illegality ... 3
OHBATIlfG.
Indian Penal Code^ Sections 415, i^Z— -Attempt to cheat and forgery^^
False representation in application for employment. ^^The pHflOoOr, a
6remao, applied for employment to the Locomotive and Carriage
Superintendent of Barma Kail ways. He forwarded with his application
a oopy of a certiBcate purporting to have been granted to bim by ibe
North- Western Railway authorities to the effect that the accosed had
been employed as an eogine-driver on that Railway for a considerable
period and was of. good conduct, when in fact no such ceitificate had
ever issued to him, nor had he ever worked as an engine-driver on that
Railway.
HeU that he was guilty of an attempt to cheat and not of forgery ... 1
OOMPOUNOING OFFENCE.
Ownpounding oJfence^^Penal Code, Section 147— BiW/wf— Jiicow-
petsmy of Magistrate to allmo comproniic in non^compoundable qffsi^ces^^
MM that the offence of noting under Section 147 of the Penal Code
cannot under any circa mstances be lawfnlly componnded.
It is uUra vires of a Magistrate to aliow a non-compoundable offence
to be ooMpromised on the grounds that the offence committed might
probably in the end tarn out to be a compoundable one or that the
oonaequenoe of bis action might probably, in his view, be bettor for
the oomplaiBant ,,, „. .,. ... ... 11
INDBX OF CRIMINAL OASES REPORTED IN THIS VOLUME. IU
T^ refertncsi are to the No$, given to the caeee in the "Eeoord, **
CONFESSION,
No.
Chnfession^^Oonfession made to a Magtttraie nf a Nattve Staie'^Admis*
8thtlttyof,as evidence in a trial in British India^^ Evidence Act, 1872 ^
Section 26,'-^Hfld that a confession made by a priponer to a Magistrate
of a Native State is admissible in evidence in a trial in British India if
it is daly lecorded in proceedings nnder, and in the mancer required
bji the Code of Criminal Procednre.
Queen- Empress v. Sundar Singh (/. L. B., XII AlLy 595) and Queen"
Empress v. Nogla Kola (J. L. B., XXII Bom., 235) ... ... 8
CONTEMPT OP COURT.
Non-attendance in obedience to an order from a Tahsiidar-^Mnnsiffor
distributing revenue on icastfi land — Pf^7ial Code, Section ]74s.-^Held that
a Tahsildar has no anthoiiry to samraon a person who has agreed to
prepare lists of cattle in order to enable the Revenne anthorities to
make a proper assessment of revenue over waste lands and oonse-
qnentlj failure to attend in obedience to such an order is not punish-
able und6r Section 174 of the Indian Penal Code ... ... 4
CRIMINAL PROCEDURE CODE, 1898.
Section 9.
See European British Subjects ... ... ... 6
SacTiON 145.
See Possession ... ... ... ... ••• 7
Section 195.
See Sanction for Prosecution ... ... ... ... 2
Section 203.
And Section 202— Dismissal of complaint under Section 203—
Oompet^ncy of Magistrate to grant sanction for prosecution for making
false cha/rge.
S%e Sanction for Prosecution ... ... ... ,.. 2
Section 256.
Witness -Eecalling witnesses for cross-examination after charge^
Expense.^Held that under Section 256 of the Code of Criminal
Procednro it is the duty of a Magistrate to re«!all prosecution witnesses
for cross examination if the accnsed so demands after the charge is
framed and has no anthority to refns<^ to do so on the ground that the
accused has not deposited the neces^j.rv expenses ... .•• 12
Section 565.
This section has no application to persons convicted under Section
511 of the Penal Code ••• ••• ••• ••• 17
mDEX OP CRIMINAL OASES REPORTED IN THIS VOLUME.
The r^erences are io the Ko$, given to the cates in the " Record, "
No.
CRIMINAL TRESPASS.
Entry on the roof of a huilding with a stick and B^nihert^-^ Attempt to
commit house-breaking by night.
See Attempt to coTnmit House-breaking ... 15
E
ENMITY.
Promoting^ between different classes of His Majesty's subjects.
See Penal Code, Section 153 A ... ... .. 10
EUROPEAN BRITISH SUBJECTS,
European British subjects — Competency of Courts of Session in British
Belochistan io exercise jurisdiction over European British suhject'^Begtda'
tion VIII of IS^^, t^ection 321— CrMinai Procedure Code, )898, Section
9 _^e/(i that Coarts of Session in Bntiah Beloobistau have {ariRdic-
tion to try Baropean British subjects coramitted to them bj competent
Coorts. Such Courts having been established by the Governor-General
io Council by Regnlation VIII of 1896, it is immaterial that the
Local Government has established no such Courts under Section 9 of
the Code of Criminal Procedure ... ... ... ... 5
EVIDENCE ACT, 1872.
Skotiok 26.
In this section " Magistrate " includes Magistra'es of Native States,
and therefore a confession dniy recorded by a Magistrate in Native
Territory ib admissible in evidence in a trial in British India ... 8
EXCISE ACT, 1896.
Section 46 (c).
And Sections 30, Sl'^IUegnlly importing foreign liquor into the territory
to which this Act extends. — Held that the introduction of any quantity of
foreign liquor, howeve^ small and for whatever purpose it may have
been imported into any of the territories to which the Excise Act, 1896,
extends, is illegal and punishable under Section 46 (c) of the Act ... 14
FORGERY.
Attempt tO'^False representation in application for employment.
See Cheating ... ... ... ... ... 1
H
HOUSE-BREAKING AND HOUSE-TRESPASS.
Entry on the roof of a building mth a stick and snndbeva —Attempt to
commit housebreaking by night - Criminal trespass — Penal Code, Sedions
442, 447, 457, 511.
See Attempt to commit House-breaking ..« ..• ••• 15
INDEX OF CRIMINAL CASES REPORTED IN THIS VOLUMfe.
The references are to the Kos, given to the ca$e» in the "Record,
No.
MAGISTRATE.
1. Ooafessiea ^ recorJei by a M agistrate of a Native State is
admissible in a trial ia British lodia ... ... * ... 8
2. It is ultra vires of a Magistrate to allow a non-compoandable
o£PeDce to be compromised on the grounds that the offence committed
might probably in the end tarn oat to be a compoandable one or that
the conseqaence of his action might probably in his view be better for
the complainant ... ... ... ... ... 11
3. It is the dnty of a Magistrate to recall prosecotion witnesses for
cross-examination if the accased so demands after the charge is •
framed and has no authority to refuse to do so on the ground that the
accused has not deposited the necessary expenses ... ••• 12
N
NATIVE STATE.
Confession recorded by ^ Magistrate of a Native State is admissible
in evidence in a trial in British India ... ... ... ft
PENAL CODE-
Section 147.
The offence of rioting ondor this section cauuut aodor any oiroum-
fitances be lawfully compounded ... ... ,., ... H
Sbction 153 A.
Enmity — Froniotingy between different classes cf His Majesty's subjects'^
Europeans and Indians — Penal Code, Section 153 A, — Held, that a
person who publishes as true a detailed account of a brutal murder
of an Indian by a European based in fact on a mere ramoar which
had died out years before the publication, and to the revival of which
he himself had largely contributed, is not protected from criminal
liability by the cxplbnation to Section 153A. of the Indian Penal Code.
Such a publication must be held to be likely to promote enmity between
different classes of His IMajesty'e sabjccts, and is an offence under
Section 153A. inasmuch as the publisher must be held to have
attempted to promote feelings of enmity and hatred between the
two classes, the only reasonable inference deducible from his acts
being that he was conscious of what the effect of them would be
and intended to cause that effect by the publication.
For tbe purposes of Section 153 A. Europeans and Indians con-
stituted different cIosscms of his Majubtj's subjects ««, ,„ 10
tKDBX OF CRIMINAL OASfiB REPORTJBD IN THIS VOLUlffi.
The rtferences are to the Nos, given to tic cases in the ** Beeord, **
No.
PENAL CODEMconold.).
Seotion 174.
See OofUemft of OouH ... ... ... ... 4
Sbotiom 415.
And Section 463 — Attempt to cheat and forgery "^False representation
in afpUcation for employment.
See Cheating ... ... ... .:. ... 1
Sbotioh 423.
Fictitious deed of sale —Execution of to avoid pre-emption—^Dishonestly
or fraudulently — Penal Code^ Section 423.— flcW that the executioD of a
fictitioigu) sale-deed in order to defeat the claim of a pre-emptor Hmoonta
to a diakotiest and f raadaleut ^xecatioo of a deed within the meaaiog
of Section 423 of the Penal Code ... ... ... ... 16
Sections 442, 447.
See Attempt to commit House'breahing ... ... ... 15
SicnoN 457.
Sqq Attempt to commit House-breaking ... ... ... 15
Seotiom 511.
See Attempt to commit House-hreahing ... ... .«• 15
Section 565 of the Code of Criminal Procedure, 1898, does not apply
** to persons convicted ander this section ... ... ... 17
POSSESSION.
Possession, order of Criminal Court as to^^J^on'Ohservance of
procedure — Illegality ^^Criminal Procedure Code, 1898, Section 145*—
Proceedings under Seotion 145 of the Code of Criminal Prooedore
are without jurisdiction unless the procedure prescribed therefor
is strictly adhered to. Where therefore the copy of the imtiatery
oxAev was neither served on the parties nor affixed at or near
the sabJQct of dispute aud all the parties interested were not
heaid or evidence taken^ield, that the proceedings must be set
aside ... ••• ••• ••• ••• ••• »
PUNJAB LJlWS act, 1872.
Segtioh ib.
Bevision^ Order made under Section 45 of the Punjab Laws Aotf 1872,
rehiring foreign vagrants to leave district --Judicial Proceedings-r-^Power
cf revision by Chief Oowrt.—Bdd that the proceedings of a District
Magistrate raqniiing foreigo vagrants to leave hia district under
Seotion 45 of the Punjab Laws Act, 1872, are not judicial pro-
ceedings and are, therefore, even if illegal, not open to revision by
the Chief Court ... ... ... ... ... 9
INDEX OF CRIMINAL CASES REPORTED IN TTOS VOLUME. rii
Jhe ref«renee$ are to the Vo: given to the eatei in the "Bteord, "
PUNJAB MUNICIPAL ACT, 1891.
SwmoN 92.
And Section 94 — Partition wall over a ihRrro,^ Authority to erect
without the permission of the Committee — Erection cf a building, —
Held that btiildiiig a new partition wall orer a tharra axnonats to
'' erecting a bDilding *' within the meaning of Section 94 of tho
Pod jab Mnnicipal Act, 1891, and as such reqairee sanction of the
Committee as provided by Section 92 of the Act ... ,„ 13
RECOGNIZANCE TO KEEP PEACE.
Security far keeping the peace on conviction — Appellate Court not
competent to demand where Magistrate not empowered by law^^Orimtnal * '*
Procedure Code, 1898, Sections 106, b'^O.^-^Held that a Cpnrt of appeal
cannot pnss an oider under Section 106 of the Code of Criminal
Piocedare when the Magintrate who passed the original order convict-
ing the accused was not empowered by law to do so ... 6
REFORMATORY SCHOOLS ACT, 1897.
Section 16.
Appellate Court — Jurisdictiou of, to test the legality of a conviction
passed a^gainst a youthful offender.— Held that Section 16 of the
Keformatory Schools Act, VI II of 1897. does not relieve an AppellHte
Coart of the daty of finding whether a conviction or sentencd passed
against a youthful offender is legally maintainable.
It only precludes a Court of appeal fr >m altering or revising
any order passed by the original Court with respect to the age
of 83ch offender or the substitution of an order for deteotion in a
Reformatory School for transportation or imprisonment ... 18
REVISION.
Proceeding of a District Magistrate requiring foreign vagrants to
leave his district under Section 45 of the Punjab Laws Act, 1872, are not
Judicial proceedings, and are therefore, even if illegal, not open to
revisioD by the Chief Conrt ... ... ... ... 9
BIOTING.
The offence of rioting ander Section 147 of the Penal Code cannot
under any circumstances be lawfully compounded ... ,„ 11
s
SANCTION FOR PROSECUTION.
Sanction fcr prosecviicn — Ccmplain /— I i>m issa I of^ under Section 203
of the Code of Criminal Procedure — Ccivpetency of Magistrate to gratit
sanction for prosecution for moling falte ihorgc'^Ciiminal Procedure
vffi INDEX OF (CRIMINAL CASES REPORTED IN THIS VOLUME.
The reftrenem are to thi No8» given to the casee in the ** Record^*
Ho.
"SAKOTION POE PROSECUTION- (concW.).
Code, 1898, SecHom 105, 202, 203.— Held that a Magistrate dismismng
a oomplaint under Seotion 203 of the Code of Criminal Procedare after
examining; the complainant and considering the result of the investiga*
tion made under Section 202 on the ground that tbe allegations con-
tained therein were false is competent to giant sanction for the
prosecotion of the complainant for making a false charge.
Burya Haria/ni and others v. King'Emperor (6 Cole* W. jV., 295)
followed.
Queen-Bvypreee ▼. Gkinga Bam (J. L. 22., VIIIAll.^ZS) dissented
*roni vvt ••• *••• ••# avt ••• •
w
WITNESS.
It is the daty of a Magistrate to recall prosecntion witnesses for cross-
examination if the accased so demands after the charge is framed and
has no anthority to refuse to do so on the ground that the accused has
not deposited the necessary expenses ... •.. ,.. U
REVENUE JUDGMENTS,
1907.
A TABLE
or THE
liMKS OP SEYKIDB CISES BBPORTBD II THIS YOLDME.
Name of Case.
No.
Page.
IT
Hirav. Budha
Mohar Singh t;. Jhanda 8in£^ ...
S
Sber Singh v. Saya Ram Das ...
1
8
2
1
5
3
TABLE OF*CASES ClTfiD-
.(RdTdnne).
Name of Case.
No.
Page.
B
Bakhsha v. Fateh Muhammad, 2 P. R., 1888, Kev.
Bhaga V. Karishan Deo, 8 P. R., I9U4, Rot...
3
0
0
J-
Jo\Yaa Singh v. Maharaja Jaggat Singh, 1 P. R., 1898, Rev.
3
6
P
Pimjab Singh v. Sant Ram, 22 P. R., 1896
2
4
TABLE OF.CASES CITED-
(Bdyenne).
Name of Case.
1
No.
Page.
B
Bhaga V. Karishan Deo, 8 p. R., I9U4, Rot...
••t
3
a
G
0
J-
JovTM Singh V. Maharaja Jaggat Bingb, 1 P. R.i 1898, Rev.
••t
3
6
P
Pimjab Singh v. Sant Ram, 22 P. R., 1896
2
4
Cbte! dnurt nf tlje ^itufab.
KEVENUK JUDGMENTS.
AiPiLunSiDi.
•
No. 1.
Before the Eon'hle Ur. T. Gordon Walker, C.8.I.,
Financial Commissioner,
HIRA,— (Plaintif f ),— APPBLL A NT, 1
Versus
BUDHA AND AN0rHER.-(DBrBNDANT8), -RESPONDENTS.
Appeal No. 15 of 1905-06.
Occupancy rights ^Acquisition of^ by the repressntatives of ons founds
against another — Punjab Tenancy Aety 1887, Sections 5 (1) (c), 10.
Held, that the representatiTes of a member of the original proprietarj
body who was one of the founders of the village, cannot aoqnire oooapanoj
rights under olanse (c) of Section 5 of the Fan jab Tenancy Act^ 1887«
afl^nst another foander.
Appeal from the order of B, El. TounghtMband^ B squire^ Oommissioner^
Lahore Division, dated 7th February 1906.
Nabi Bakhsh, for appellant.
Sbaliab-nd*dio, for respoDdents.
Tbe judgment of the Financial Oommissioner was 89
followB : —
Financial Commissionbb.— These are 16 appeals (15— ^) 3)«| ^^puif ig06w
from the decree of the GommisRioner, Lahore, dismissing
plaintilE's sait for enhancement of rent. The question at
issae is the same in all of them, and it is one of some
importance.
The defendants are shown in the Settlement papers as
having oocnpancj rights ; and the first Court (Assistant
Collector), finding on the question of status that they were
tenants under Section 6, decreed enhancement accordingly.
On appeal the Commissioner has found that defendants have a
higher status, ». e., under Section 5 (1) (c), and that they are
not, therefore, liable to enhancement of the reat which tbe^
pow pay.
KBVKNUB JDDGilBNTS— Ko. 1. [ i«coat)
The defendaBts are proprietors in. the village, and are
descended from one of tlie iovx df if. They own lands in PaHi
Shamir. They are also shown as occupancy tenaote of the
knd in respect of which the soils are hrooght. This land
is in another Patti (Kaim). In 1855 it was shown as shamilat
jmAi. In 1865 it had heen partitioned and has since then been
the separate property of plaintiff.
The oircnmstances then are that the defendants are members
of the ori|final propHetary body bf the village, being deecei^dants
of one of the founders.
Section 10 of the I^nnjab Tenancy Act is n6 absolute bar to
the acqniBition of occupancy lights bj the defendants, because
in 1855, which is as far back as ll.e lecoids go, thej were not
joint owners of the land in suit. But it appears to me clear
(1) that it was not the intention of the Legislature that Section
5 (1) (c) should cover such a case as that of defendant^,' and
(2) that the wording of the clause could nOt be interpteted so
as to cover the case.
Defendants are the descendants and respresentatives of one
of the foundeis of the village ; and I do cot see how a person v?I)b
was himself a founder could be held to have '* settled along with
the founder ", while the word " as a cultivator " would seem to
entirely preclude such an inteipreiation, the " settliig " being
in the capacity of proprietor.
There can be no doubt, I think, that the intention of the
tamers of the clause was to protect persons who, not being
proprietors, settled with the founders in a subordinate c^apacitj
aa tenants ; and although Section 10 does not cover a caa^ such as
the present, it seems to me to show that it was the general
intention that one member of a proprietary body should not be
allowed to acquire occupancy rights against the others.
Defendants are, no doubt, entitled to occupancy rigfata under
Section 6, because Section 10 is in the circomstances inapplicable,
there beiDg no joint cwnc rsKip. I find then that defendaDls
cannot be held to have acquired the higher status under SectioD
6(l)(c).
The present rate of rent is 6 annas per rupee. I agr^e
with Commissioner that an all*round enhancement to 8 anuas is
sufficient. The lower Courts have agreed as to compensAtioD ;
and I see no reason to differ, especially as the enhandefmentlfs
inconsiderable.
BivitioN Bam.
Afeil I»07. ] EEVBNUE JUDGMENTS— No. 2.
I aecept the appeal, aod, finding that defendants are
ocoapanoj tenants under Section 6, decree enhancement up to 8
annns a rupee of the land revenue subject to the payment of the
compensation assessed bj the first Court.
This judgment and order will applj to all 16 appeals.
I make no order as to costs.
Appeal aUowed.
No. 2.
i<efore the Eon^bU T, Oordon Walker, C. S. L, Financial
Commissioner,
SHBR SINGB AND OTHERS,— (Plaintiffs), -
PETITIONERS,
Versus
SAYA RAM DAS,— (Defendant),— RKSPON I) KNT.
Revifliou No. l39 of 1905-06.
Occupanct/ Rights -Succession to — Right of a head of a tehgious instHu*
tion to succeed in his representotiv*^ caf,actty- -Punjab T»'nancy Act^ 1887,
Section 69.
Heldy that whero occupancy rights belong to a religious ia^iitution,
the chela of the last incumbent who has become inahant of the institution
is entitled to socoeed to them in his ruprtseutative capacity as head of saob
iastitutioD.
Petition for revisvn of the onUr of R. Sykes, Esquire, Coilecttr^
>ialkot, dated Ith Nuv€mh<iT 1905.
Qopal Chand, for petitioner.
Sham Lai, for respondent.
The following judgment was delivered by
The Financial Commissioner. — There is an important qnes- g^/^ Oct, 1906.
tion of law orcn«tom involved it tliis ease and I have admitted
the application and treat it rb an appeal.
The facts of the case are that Mad ho Dan, Sadha-Bairagi,
was shown as occupancy tenant of the land in snit nnder
Section 6 of the Act. Ho died, and it may be taken (though
the matter has been questioned) that the defendant 8aya
Bam Das, his chela, succeeded him as mahant. The lower
Coartfl have agreed on this point. The plaintiffs land lor'ds now
REVENUE JUDGMENTS— Na 3. [ aEOORD
sue to eject defendant on the ground that the occapancy
rights have ceased. Defendant pleaded that the oooapancy
rights belonged, not to the deceased, bi>t to the temple of which
deceased was the mahant or guardian.
In Punjab Singh v. Sant Ram {^), it was rnled that a
chela could not succeed under Section 59 to the occupancy
rights of his mahant, and in that decision I agree. In the
judgment in that ose however, it was observed that " we have
no question before us in the present case of the descent «f
an occupancy holding granted to or atta^ihed to a religious in^
stitution, as such, the incumbent ^f which for the time h^ng is
merely manager and occupant of the land on behalf of the intti*
tutznn.** That is the case which the defendant here sets up
thatthe tonnncy is attached to the institution, and that the
deeeased was merely manager! The first Court decided in favour
of defendant on the point, holding that the occupancy rights
belong to the institution, and passed on to the present mahant,
defendant, who enjoys them in his representative and not in
his personal capacity. The Collector dismissed the appeal
on the ground that, as the settlement of the land had been
made with the proprietors under Revenue Rule 216, this could
only have been done on the condition that defendant shoold
succeed to the occupancy rigrhts, I scarcely follow Collector'!
argument, and he has left the main question untouched. In
the order of reference to the Full Bench in the Chief Court
decision quoted above it is observed that " it sometimes happens
that a faqir, as head of a religious institution is occupancy
tenant of land attached to t\ie institution in virtue of his
position as mahant or gaddi-nashin, and a ruling that his chek
and successor in the headship could not succeed to the occupancy
rights recorded in his name, but virtually belonging to the
institution of which he was head, might occasion hardship
and inconvenience." The decision went no further than this
that when a chfla claims to succeed to a mahani merely S8
the spiritual descendant of the latter, that is in a personal
and not in a representative capacity, the claim was not
maintainable with reference to Section 59 of the Punjab Tenancy
Act.
The first question that arises in the present case is whether
an institution snch as we are here concerned with (a Thakard wara)
(») 22P. R^1R96.
il^M^mu , 1907. ] BBVBNUB JUDaMBNTfl-^o. 8.
in eharge of a' ooUege oooBiBtiiig of mah£mt and ehelaa, o^n be
an oooapanoy tenant. The question is of some importonoe
because there are many ^ institutions throughout the Province
which hold occupancy rights.
A tenarU is defined in the Act as a person who " holds land
under anottier person." In Section 2 (40) of the Punjab General
Clauses Act I of 1896 a *person ' is defined to iiwlude " any body
of individuals whether incorporated or notJ* In accordance with
this definition I think that the ynahant for the time being
with his chelae must be held to be a " person" and,Uherefore
to be capable of being a ** tenant" within the meaning giren
to the latter t»rm in the Punjab Tenancy Aat The occupancy
rights are under Section 6 of the Aofc. The deoeaped mAofU
was eiiiored in the Settlement record as an occupancy tenant;
but the First Court has held, after framing an issue on;the
point, that the name of Madho Das was entered merely in his
representative capacity, the occupancy righto really beloiiftipg
to the institution. That decision seems to me to be dearly
correct.
I hold therefore, with the First Court that the ocoupanoy
rifchts belong to the institution (Thakardwara), and that m,
the death of Madho Das they passed on to his successor ip
the representation of the institution, by whom they aw
enioyed in his representative capacity of fnahant. I have
notMng to do with the question of the sacoessioa to
the mahantrfiip, that question cannot anse m the prve^t
u
The petition is dismissed with costs.
AppUcaHon diemiueJL
No. 8.
Before the Bon^ble Mr. T. Gordon Walker, C.BJ., Fin(M%cial
' - ' Commiseioner. ;
MOHAE SINGH; AND OTaBES.-CPLAiwrifFS),-.
PETITIONEES, i
Versus . f EmsioK Siw.
JHANDA AND OTHBES,— (DEFBKi)Airrs),-EBePONDBNTS.
Eevision No. 197 of 1906-07,
Ocevfancy righU-^Bale of, without conunt of ZowdJord— -icgitiwcfaci—
Fwijah Tinantv Act, 1887, 8*ct%on8 68, 60.
HsU that acqniescenoe on the part of a landlord in an ali«natioli of
ecoDfanoy rights made in contraTeitiion of the pxoTiBioni of the Tenancy
£ BEVBNUE*JUDGMlCNtS— Ko. 3. I EMNtD
Act oaanot be inferred from the mere faot that the landlord omitted to no
for the oa^oeltn^at of eash transfer f.jc flrbaai mi^ha \fvier th) mit^tion
was effected.
Bhaga r. Kariahan Dso (^), Jitoin Stngh y, Maharaja Jaggat Singh (*),
and Bdksha ▼. Fateh Muhammad (*) referred to.
Petition for revision of the order of 0. /. Hallifax, Bsquire, Comwus-
sionerf JuUundur Division, dated 24ith September 1906.
Gbaldflborj and Kharak Siogh, for petitioners.
Maodonaldy for respondents.
The following judgment was delivered by
\9Mk AvrH 1907 ^™ FiHANOUL Commissionbb.— I have admitted this as a
farther appeal on the question of aoqaiescence.
I think that Oommissiooer has omitted one important
point. In Bhaga v. Karishan Deo (}), the case was of a sale by
registered deed and a sait brought four years after mutation
was efEected. There were other oiroumstances which also
distinguish that ruling from the present case. Tue ruling quoted
was founded on Jewan Singh v. Maharaja Jaggat Singh (*) and
Bakhsha v. Fateh Muhammad (^).
In the present case I thiok that the Lower Courts have
rather confused two entirely dilf ereat things, (I) immediate oon«
sent and (2) subsequent acquiescence. I observe that the
first Court framed its first issue *' was the alienation made with
the previous consent of the landlords ; and, if so, was a notice
under Section 63 unnecessary ? " Tae first Court found that
there had been cousont aud ta^t tuis took the place of the
notice required by law. The Collector, on the other hand, found
on the facts that there had beeo no consent. The Commissioner's
conclusion is that the co-proprietors generally knew of the
transfer and acquiesced in it "•
As regards the question of actual consent it would be im-
possible to accept the finding of the first Court, and 1 think
Collector was right in not doing so. It could not be infened
from a mere note of the lahsUdar (to which of coarse no pre.
sumption under Section U of the Land Bevenue Act attaohes)
to the effect that " the co-proprietors do not object", that
aU the co-proprietors were present and consented. If that were
BO, why should the plaintiffs have brought a suit to have the
alienation set aside mo soon after ? It seems clear that the co-
proprietors were and are in two parties of which one sided with
the vendee and consented. These latter are now defendants.
(*) 8 P. B^ 1904. Bev. (•) 1 P. B., 1888^ B^
<•) 2 P. B^ 1898, Bev.
Sipn. 1907.^i RSyENtB JUDGM£NTS-Ko. 8.
The note made by the patwari in his report on the matation
" alabad Mohar Singh lambardar '' woald, if Higned or sealed,
h«ye been ^anclasive on the point. Bat there is not even a
m%rk below it ; and it is therefore if anything against the
defendants, as evidenoe that it was intended to get the consent
of Mohar Singh, lambardar, bat that this was not foand
possible.
I have no donbt, then, that there was no consent^ and it
remains to consider the qnestion of acquiescence on which Oom-
missioner appears to have decided the ease. A pemsal of
thajadgmjQts of 18^8 and 190^ will show that the principal
point on which the decisi3as tamed in all throe was that the
objectors Had allowed andae delay to occar in asserting their
claim. There were, of coarse, other circumstances which went
towards the constitation of acquiescence^ bat this was the main
element. In the ralings of 1898 Mr. Thorbarn observed that
•• when a landlord is folly aware that a tenant (with occupancy
rights) has transferred his right of occapancy without
having previously obtained the consent of that landlord in
writing, unless that landlord sues within a reasonable time
to cancel the voidable transfer, his aoqaiesoenoe may ba in-
ferred as to what oonstitates a reasonable time mast depend on
the oircaaistanoes of eaoU case ; in some it might be two years,
in some three or more ". Applying this principle to the present
case I find-
Deed of sale, dated 9th February 1904,
Mutation, dated i6th November 1904,
Suit instituted, dated 28th February 1906.
The suit was instituted 15 months after mutation was
effected : that must be taken as the starting point ; and it can-
not be said that there was undue delay in bringing the
suit. £ven if plaintiff had knowledge of the mutation, apart
from the question of their consenting to the transf er, it could
not well be held that they had slept on their rights or had
not asserted them without undue delay. These questions of
subsequent acquiescence must always be questions of degree^
and here I think that aoquiesoence cannot be inferred from
the conduct of the plaintiff in regard to the litigation.
I accept the appeal and restore the order of the Oollector.
Plaintiff will get a decree cancelling the sale with costa
throughout.
Jfptal aJhwed.
INDEX
OF
REVENUE CASES REPORTED
IN THIS VOLUME. 1907.
The references are to the Nos, given to the cas€$ in the " Record"
* No.
AOrS :—
XVr OF 1887— Seft Punjab Tenancy Act, 1887.
0
OCCUPANCY RIGHTS.
1. Occupancy rights -Acquisition of, by the representatives of one
founder against another — Punjab Tenancy Act, 1887, Sections 5(1) (c),
10.— HaW that the lepresentatives of a member of the onginal proprie-
tary body who was one of the founders of the vilUge, cannot acquire
occupancy lights under clause (c) of Section 5 of the Punjab Tenancy
Act, 1887, against another founder ... <... ... 1
2. Occupancy rights--' Succession to-^Bight of a head of a religious
institution to succeed in his representative capacity --Punjab Tenancy Act,
1887, Section bd.—Held that where occupancy righte belong to a
religions institution the chela of the last incumbent who has become
mahant of the institution is entitled to succeed to them in his represen-
tative capacity as head of such institution ... .. ... 2
3. Occupancy rights^ Sale of, without consent of landlord^
Acquiescence—Punjab Tenancy Act, 1887, Sections 53, 60.— fleW that
aoqaiescenoe on the part of a landlord in an alienation of occupancy
rights made in contravention of the provisions of the Tenancy Act can-
not be inferred from the mere fact that the landlord omitted to sue for
the canoelment of such transfer for fifteen months after ^e mutation
wai effected ... ••• ••• ••• •*• ^
PUNJAB TENANCY ACT, 1887,
SicrroK 5 (1) (c).
And Section \0— Acquisition of occupancy rights by the representative of
one founder against another.
See Occupancy Bights ••• ••• ... ♦•• A
11 INDEX OP REVENUE 0A8BS REPORTED IN THIS VOLUME.
The re/eren^e$ are to the No8, given to the easee in the " Record**
Na
PUNJAB TENANCY ACT, 1887— (oondd.).
Sktion 63.
And Section 00^ Sale of occupancy rights without consent of landlord —
Acquiescence.
See Occftpaney Bights ... ... ... ... 3
SBonoH 59.
See Occupancy Bights ... ... ... ... 2
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