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Alfred Macdonald Bulteel Irwin.

The Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 1) online

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Online LibraryAlfred Macdonald Bulteel IrwinThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 1) → online text (page 1 of 190)
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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY




THE INDIAN DECISIONS, NEW SERIES.
ALLAHABAD, VOL. I.



THE

INDIAN DECISIONS



Being a re-print of all the Decisions of the Privy Council on appeals from India
and of the various High Courts and other Superior Courts in India reported
both in the official and non-official reports from 1875.



EDITED BY

THE LAWYER'S COMPANION OFFICE

TRICHINOPOLY AND MADRAS



ALLAHABAD, VOL. I

(18751880)

I.L.R., 1 and 2 Allahabad



PUBLISHED BY

T. A. VENKASAWMY BOW

AND

T. S. KEISHNASAWMY KOW

Proprietors, The Law Printing House and The Lawyer'*
Companion Otlice, Trichinopol.y and Mad ran.

1915

[Copyright Registered,]



PRINTED AT

THE LAW PRINTING HOUSE,
MOUNT ROAD, MADRAS.



f\



INTRODUCTION.



THE learned public may remember that the first five
volumes of the Allahabad section of the INDIAN DECISIONS,
NEW SERIES, as originally published by us before the
Government of India granted us permission to use their
copyright in the INDIAN LAW REPORTS SERIES (18761900),
reproduced, in chronological order, all the cases reported in
the first nine volumes of the Allahabad Series of the
INDIAN LAW REPORTS and in the contemporary private law
journals of the province ; but that, after the grant to us, in
May 1913, of the said permission, we devoted ourselves to
the publication of the verbatim and seriatim reprints of
each series of the INDIAN LAW REPORTS only. We then
made an announcement to the effect that, after finishing
the work of reprinting the INDIAN LAW REPORTS, we
would, in substitution for the old first five volumes of the
Allahabad section of our INDIAN DECISIONS, NEW SERIES,
reprint an equal number of five new volumes, containing a
verbatim reproduction exclusively of the cases reported in
volumes 1 to 9 of the INDIAN LAW REPORTS, Allahabad
Series, and that we would supply the new five volumes
free of cost, though at a sacrifice of our legitimate profits,
only to those gentlemen who should by this time be in
possession of the old five volumes by right of purchase
from us.

In fulfilment of our promise, we now beg to place before
the learned public volume I of the Allahabad section of
our INDIAN DECISIONS, NEW SERIES, containing the verbatim
and seriatim reprints of the cases reported in volumes 1
and 2 of the INDIAN LAW REPORTS, Allahabad Series. We
need scarcely add that, in this volume as in the other
volumes of our INDIAN DECISIONS, NEW SERIES, generally,
we have taken care to prominently indicate the original



VI INTRODUCTION.

pagination of the INDIAN LAW KEPORTS, given correspond-
ing references to the other reports in which any INDIAN
LAW REPORTS case might also have been reported and have
also appended notes of subsequent cases under the head-
note of each main case. A copious subject-index and two
tables of cases are also added to the volume for facilitating
reference.

We would particularly urge those of our learned consti-
tuents that have been waiting to become subscribers to our
INDIAN DECISIONS, NEW SERIES, only after the publication
of these five volumes, to get their names registered at the
earliest practicable opportunity, as we are striking off only
a few copies more than we are bound to supply free of cost
and thus to save themselves from disappointment.

The delay in the publication of this volume, though we
much regret it, is due to the difficulty, caused by the present
war, of securing a free and adequate supply of paper. To
the same cause has also to be attributed the slight variety
that may be observed in the kind of paper used in the get-
up of this volume. We earnestly trust that better condi-
tions may soon prevail and enable us to uniformly maintain
the superior quality of our publications.

We beg leave to prefix to this volume our prefaces to
volumes 1 and 5 of the Allahabad section of the INDIAN
DECISIONS, NEW SERIES, which will give a connected view,
from the very commencement, of our attempts, now
successful through the kindness of the Government of
India, to serve the learned public by placing before them
cheap reprints of the INDIAN LAW REPORTS SERIES.

THE LAWYER'S COMPANION OFFICE, 'j ^ ^ VENKASAWMY ROW.

MADRAS, [

Dated 22nd December, 1915. J T. S. KEISHNASAWMY ROW.



PREFATORY NOTE TO

THE STH VOLUME OF INDIAN DECISIONS, NEW SERIES,
ALLAHABAD SECTION.



We owe an explanation to the learned subscribers to the INDIAN
DECISIONS, NEW SERIES, for the delay in issuing this fifth volume of
the Allahabad section thereof.

The copyright in the INDIAN LAW REPORTS belongs to the Crown,
and we realized that the publication of the INDIAN DECISIONS, NEW
SERIES, could not be proceeded with without obtaining from the
GOVERNMENT OF INDIA their license to reproduce and publish the copy-
right matter in those Reports.

The publication of the first four volumes of the INDIAN DECISIONS,
NEW SERIES, ALLAHABAD SECTION has, we freely admib, involved an
infringement by us of the copyright in the INDIAN LAW REPORTS, and
for this we express our sincere regret, and apologise to the GOVERNMENT
OF INDIA.

Negotiations have taken some time, and we are now glad to be able
to announce to the public that the GOVERNMENT OF INDIA have been
graciously pleased to accord to us their license to use their copyright in
the INDIAN LAW Ri PORTS up to the year 1900 on certain terms and
conditions which we gratefully recognize as eminently just and liberal and
for which we beg to tender them our respectful thanks.

We take it that this privilege has been granted to us more for the
sake of our learned constituents than for ourselves. Having the resources
and the facilities which our own fully equipped and up-to-date LAW
PRINTING HouSii places at our entire disposal and command, we now
have also the advantage of the grant of this privilege by the GOVERN-
MENT OF INDIA. This combination of facilities emboldens us to assure the
learned public that we can very soon place in their hands verbatim re-
prints of all the four series of the INDIAN LAW REPORTS in a very small
compass and for a very low price.

We have made the most satisfactory arrangements in our Press for
the rapid progress of this work ; and we have also commenced to make
the re-prints without any further loss of time.

In consequence of the permission granted to us by the Government
of India to make verbatim re-prints of all the four series of the INDIAN
LAW REPORTS and in deference to the wishes of the large body of our
subscribers, we propose to change the present plan of the INDIAN DECI-
SIONS, NEW SERIES, which till now consolidated and re-printed the
decisions reported in both the official and the non-official reports from
1875 in the chronological order of their dates. But, hereafter, we will



VIII PREFATORY NOTE.

divide the INDIAN DECISIONS, NEW SERIES, into two sections. The first
will be devoted to, and will proceed with, the verbatim re-prints of the
cases reported in the official reports, now to wit, the INDIAN LAW
REPORTS, in the order and manner in which they are printed there,
separating them from the cases reported in the private reports. And the
second will be devoted to the re-print of the cases reported in the private
reports, in respect of which further information and particulars will be
given to subscribers in due course.

The learned public are aware that the first four volumes of the
INDIAN DECISIONS, Ntw SERIES, re-print cases contained in the first
eight volumes of the Allahabad Series of the INDIAN LAW REPORTS along
with other cases relating to the same province reported in the non-official
reports.

This volume finishes the re-production of cases from such of the
official and non-official reports as have been begun in the fourth volume
and not completed therein. Thus, in the fourth volume, the subscribers
will observe that cases from the sixth volume of the Allahabad Weekly
Notes and from the eighth volume of the Allahabad Series of the INDIAN
LAW REPORTS have been left incomplete. In this volume, therefore, we
have finished the re-production of all the remaining cases from the sixth
volume of the Allahabad Weekly Notes and the eighth volume of the
Allahabad Series of the INDIAN LAW REPORTS and have also begun
and finished the verbatim re-print of cases from the ninth volume of the
Allahabad Series of the INDIAN LAW REPORTS. Tbe sixth volume of
the INDIAN DECISIONS, NEW SERIES (Allahabad section), will com-
mence to exclusively re-print the cases from the tenth volume of the said
Allahabad Series of the INDIAN LAW REPORTS.

For the sake of the learned public, who are already subscribers
to the INDIAN DECISIONS, NEW SERIES, as well for the sake of those
who will become subscribers hereafter, the cases reported in the first nine
volumes of the Allahabad Series of the INDIAN LAW REPORTS will be
separately printed in an equal number of five volumes and will be supplied
to them free at a later date. But this consideration can be availed of
only by gentlemen who immediately become subscribers to the INDIAN
DECISIONS, NEW SERIES, as a whole, and also purchase the first five
volumes thereof as published under the original plan. It cannot be
availed of by those who elect to wait and to take only the proposed
verbatim re-prints of the first nine volumes of the Allahabad Series of the
INDIAN LAW REPORTS. To such gentlemen, these five volumes will not
be given free but sold at Rs. 7 per volume (Postage, V.P. charges, etc.,
extra).

We further beg to announce that we have also begun to re-print the
cases reported in the Calcutta Series of the INDIAN LAW REPORTS and
that we will publish the first volume of the Calcutta section of the INDIAN
DECISIONS, NEW SERIES, by the end of this month,



PREFATORY NOTE. IX

We will do our best to take on hand the other series of the INDIAN
LAW REPORTS, Madras and Bombay, as early as possible.

The plan of these verbatim re-prints will be as follows. The cases
from the INDIAN LAW REPORTS will be re-printed in the order in which
they appear there and will be literally verbatim ra-prints, giving the autho-
ritative head-notes, the statements of facts, the arguments of counsel and
the judgments as fully and completely as reported in the ^DIAN LAW
REPORTS without the omission of even a single syllable.

In order to facilitate the citations of pages of the INDIAN LAW
REPORTS, such pages are and will be indicated by means of thick types
enclosed in thick rectangular brackets in the body of the book, Further,
where a case found in the INDIAN LAW REPORTS is also reported in a
private report or reports, it will be pointed out by the familiar equal to
( = ) symbol. Reference showing at a glance how each case has dealt
with the previous cases and has been affected by subsequent cases will be
noted. A copious subject-index will also be given at the end of each
volume. Also, two tables of cases, one by the volume and page of each
report from which the cases have been re-produced in this volume, and
the other in the alphabetical order of the names of the parties, will be
furnished to facilitate reference. Thus, no pains will be spared to make
these re-prints of the INDIAN LAW REPORTS as complete and as useful
as possible. We believe wo need no further dilate on this point, as the
learned subscribers all over the country are not unfamiliar with our
publications.

We thank the learned profession for the very great patience and
consideration they have shown towards us in respect of the long delay in
the publication of this volume and also for their uniform esteem and
patronage.



THE , BB M^r"l T. A. VENKASAWMY ROW.

10th May, 1913. T. S. KRISHNASAWMY ROW.



A. i-n



PEEFACE TO

THE IST VOLUME OF THE INDIAN DECISIONS, NEW SERIES,
ALLAHABAD SECTION, AS ORIGINALLY PUBLISHED.



I BEG hereby to offer the legal profession in India the first volume of
the INDIAN DECISIONS, NEW SERIES. As announced by me else-
where, the INDIAN DECISIONS, NEW SERIES, is devoted to the verbatim
re-print of all the judgments of the several High Courts in India and
of the Judicial Committee of the Privy Council, since the year 1875,
reported both in the official and in the non-official reports of the country.
The volume now placed before the learned public is the first volume
of the ALLAHABAD SECTION of the INDIAN DECISIONS, NEW SERIES, and
comprises the judgments of all the cases decided by the Allahabad High
Court from January, 1875 up to May, 1880 and by the Judicial Committee
of the Privy Council on appeal from the Allahabad High Court and from
the Judicial Commissioner of Oudh and reported in the official, as well as
in the private, reports relating to that period. All the cases reported in
volumes I and II, and a few cases not more than 8 reported in volumes
III and IV, of the I.L.R., Allahabad Series, will be found among the
cases re- printed in this volume, which contains, also, such of the Allaha-
bad cases as are not reported in the I.L.E., Allahabad Series, but are to
be found in the Allahabad Weekly Notes, the I.L.R., Calcutta Series, the
Bengal Law Raports, the Calcutta Law Reports, Sutherland's Weekly
Reporter, the Law Reports Indian Appeals, Baldev Ram Dave's P.C,
Judgments, Sutherland's P.C. Judgments, Saraswati's P.C. Judgments,
and the Indian Jurist pertaining to the period specified above.

The imperfections of our legal Codes have justly enhanced the
value of judge-made law, which is every day developing, and, side by
side with its growth, a knowledge of the law is also rapidly spreading
among the people. Judges and practitioners alike keenly feel the neces-
sity of keeping themselves abreast of the current of modern case-law.
But, the cost of acquiring a complete collection of all the decisions
of the highest judicial tribunals of the land, even commencing from
the date of the establishment of our present High Courts up-to-date,
is becoming very prohibitive, at least to the majority of the learned
profession. Many of the back numbers of the I.L.R. Series and of
the private reports, relating to so recent a period as that covered by
the years 1875 to date, are difficult to obtain and the chances of their
being re-printed have become problematic. There is abundant evidence
of the fact that the majority of the learned public are anxious to possess
themselves of a comprehensive and cheap publication, which will bring
together all our modern case-law, now scattered in the bewildering multi-
tude of official and non-official reports, if any publisher should resolutely



XII PREFACE.

and earnestly come forward to supply this long-felt need. This want of a
consolidated and comprehensive edition of the decisions of the several
High Courts is all the more intensely felt from the circumstance, that the
I. L. E. Series do not report all the important cases decided by our High
Courts, the total number of cases decided by our High Courts being
greater than that which any particular report, official or private, publishes,
and, also, from 'the circumstance already referred to that such cases are
scattered over a large number of different reports.

The publication, therefore, of a consolidated and moderately priced
edition of all the decisions of our High Courts, reported in the various
official and private journals, was the magnum opus which, with the sole
object of obviating the difficulty abovementioned of a considerable
portion of the members of the legal profession, personally witnessed by
him during his long practice at the Bar, my revered uncle, the late
Mr. T. V. SANJIVA EOW, had set to himself to accomplish, and which he,
in the midst of his manifold duties, had been slowly conserving all big
resources to realise. My uncle's aim in this respect was threefold : to
publish a verbatim re-print of all the Privy Council decisions published in
the Moore's Indian Appeals and in the several reports of Acton, Knapp, etc.,
decided up to the year 1873 ; to publish, also, a verbatim re- print of tha
rare decisions of the old Supreme Courts and Sudder Dawanny Adawlats
in India ; and, further, to bring out a consolidated and comprehensive, but
yet a cheap, edition of all the modern reported case-law. The first of
these objects he endeavoured to realise in the publication hitherto known
as the INDIAN EEPORTS, but which has now ceased to exist, owing to the
dissolution, in consequence of his death, of the partnership under which
the publication was begun. The second object, my late uncle had in
view, I have diffidently attempted to carry out in my recently started
publication, the INDIAN DECISIONS, OLD SERIES, the first volume of
which has already been placed before the profession. But, the third
and last object aimed at by him was the one he most dearly cherished,
and most ardently worked for, and, with the view of eventually taking
up this work it was that he started the LAW PRINTING HOUSE, two
years ago. And, though his untimely death has prevented him from
carrying out his most important object, I have, as previously announced
by me, resolved for the sake of the learned constituents to accomplish
that object also.

The chief object of inaugurating the present publication, and, at the
same time, the justification for issuing it, are in the words of my late
lamented uncle, " to place within the easy reach of all practitioners, high
or low, opulent or otherwise, a publication containing in extenso all the
decisions of the highest judicial tribunals of the land in such a manner as
would meet " all their requirements and for a fair and moderate price.

The present volume, it will be observed, collects together all the
Allahabad cases scattered in 35 volumes of private and official reports



PREFACE. XIII

relating to the period between 1875 and 1880. The advantages of such a
consolidation cannot ba too highly valued. Tnis feature, taken into con-
sideration along with the chronological order in which these cases are
arranged, i.e., according to the dates of the judgments, and irrespective of
the order in which they are found in the original reports, will, it is hoped,
greatly conduce to a historical study of our case-law, a study, which,
under a legislature which periodically amends, repeals and re-enacts almost
all the enactments in force in the country, must be very essential and
important for a clear and useful knowledge of the law.

The facilities which this series will afford the practitioner will be
that the original paginations of the various cases, as they are to be found
in the respective reports, have been, to render citation easy, indicated in
the body of the judgments by means of thick black 6gures enclosed in
rectangular brackets ; whore the decisions are reported in the I.L.R. as well
as in the private reports, the original pages of the I.L.R. only are
indicated, and, where more than one private journal reports a case or
cases, the original pages of the report more frequently cited in the Courts,
are indicated ; and the reports thus preferred are underlined by thick lines.
Again, where the same case is reported in more than oue report, the re-
petition is pointed out at the top of each case and in the margin by the
familiar ( = ) equal to symbol.

The novel feature about this publication is that each case is
provided with an analytical, exhaustive and original head-note, the various
points dealt with in the decision being split up into separate paragraphs,
wherever possible, and printed with appropriate catch-words. The
head-notes specially prepared for the LAWYER'S REFERENCE series,
which have long ago earned the approval of the learned public, have
been adopted for this publication, as far as possible. The late Mr.
Sanjiva Row prayed the Government of India to grant him permission
to make a verbatim re-print of the back numbers of the I. L. R. Series
up to a certain period, and, after bis death, a similar memorial was
submitted to them by me also. But. they have not as yet designed to
make any reply ; and, from the pressure of the heavy work always
before them, and from the important issues involved in the prayer, it would
seem to be unreasonable to trouble them for a speedy answer. This
circumstance, together with the fact that a very large section of the
learned public are earnestly pressing me to bring out a publication of this
kind, has compelled me to depart from the time-honoured practice of re-
producing the head-notes of the official reporter, a departure, which, I
trust, the profession will have no reason to complain of, and which, if
reasonably considered, may not be without its own advantages, but
which, however, will not preclude me from availing myself of the official
head-notes, etc., should the Government of India graciously deem it fit to
grant me, in future, the permission I have prayed for. The same consi-
deration has induced me to omit the official statement of facts and the
arguments of counsel, a further reason therefor being that the facts of the



XIV PREFACE.

case and the arguments of counsel are generally discussed in the judgments
of the learned Judges themselves ; though, wherever quite necessary, a
brief statement of the facts of the case is also given.

At the end of the head-note of each case, the previous cases that
have been considered in, and the subsequent cases that may have
considered, the particular case have been noted. A copious and exhaust-
ive general index has be^n appended to the volume which is calculated
to serve as a complete digest of the case-law in the volume.

Two tables of cases, one by the volume and page of each report from
which the cases have been re-produced in this volume, and the other in
the alphabetical order of the names of the parties, have beeo furnished
to facilitate reference. These tables will be consolidated at the end of
the series relating to each province, when such consolidated table will
serve as a key to the volumes of each province.

Particular attention is invited to the price of the volume, Es. 7,
which, considering the labour and research it has cost, its size, which
covers more than a thousand pages, its printing and binding and general
get-up, specially designed to make the work a permanent and enduring
book of reference, I hope, the learned public will recognise to be only too
moderate.

It is proposed to issue the volumes of this series at the rate of one
volume every month and effective arrangements have been made for it.
I wish, also, to say that, if a large number of subscribers earnestly require
it, the publication of the judgments relating to the other provinces will
also be simultaneously taken up.

In conclusion, I beg to state that the legal profession will only re-
cognise in this publication 'an earnest desire on my part to serve them
more than anything else and, if it should, even in the smallest measure,
facilitate the work of the judge and the lawyer in the administration of
justice, I shall feel amply rewarded.

I wish to avail myself of this opportunity to express my sense of
indebtedness to Mr. M. M. MURZBAN, Bar-at-Law, Bombay, who has
been so kind as to transfer to me the rights he acquired from Mr. W. K.
PORTER of the ALLAHABAD WEEKLY NOTES, to re-produce verbatim the
head-notes, statements of facts, etc., etc., of all such cases reported in the
Allahabad Weekly Notes, as have not been reported in the Indian Law
Eeports Series, for the purposes of this series, which goes a great way to
facilitate my work in this great undertaking, and to other professional
gentlemen who have been rendering me unfailing assistance in the publi-
cation of this work.

THE LA WYEB'S COMPANION OFFICE,]

MADRAS. T. A. VENKASVWMY BOW.

Dated, 25th October, 1911. J



JUDGES OF THE HIGH COURT OF ALLAHABAD
DURING 18751880.



Chief Justice :
HON'BLE SIR EOBEET STUART, KT., Q.C.

Puisne Judges :
HON'BLE F. B. PEARSON.

C. A. TURNER, c.l.E.
R. SPANK1E.

R. C. OLDFIELD.

D. STRAIGHT.



REFERENCE TABLE FOR FINDING THE PAGES OF THIS
VOLUME WHERE THE CASES FROM THE ORIGINAL
VOLUMES MAY BE FOUND.



Indian


Law Reports, Allahabad Series,


Vol. I.


Pages of


Pages of


Page? of


Pages of


1 All.


this volume.


1 All.


this volume.


1 (F.B.)


1


194 (F.B.)


... 131


17 (F B.)


... 11


207 ...


... 140


26 (F.B.)


... 17


212 (F.B.)


... 143


31 (F.B.)


... 21


217 (F.B.)


... 146


34 (F.B.)


... 23


230 ...


... 154


43 (F.B.)


... 29


231 ...


... 156


46 (F.B.)


... 31


235 ...


... 158


51 ...


... 34


236 (F.B.)


... 159


53 (F.B.)


... 36


240 (F.B.)


... 162


57 (F.B.)


... 38


249 ...


... 168



Online LibraryAlfred Macdonald Bulteel IrwinThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 1) → online text (page 1 of 190)