Copyright
Chas. A. Stevens & Bros.

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 7) online

. (page 118 of 155)
Online LibraryChas. A. Stevens & BrosThe 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 7) → online text (page 118 of 155)
Font size
QR-code for this ebook


that the learned Judge took a proper view of them when he wrote that if
the case against the appellant was limited to the discovery of these two
axes he might safely have been acquitted. We have not seen the axes ;
they have not been produced before us ; but from their description we are
satisfied that they are not weapons within the meaning of the Arms Act
of 1878.

[130] Before we deal with the case regarding the possession of the
swords, we think it proper to place on record our disappointment at find-
ing that the District Magistrate appears to have issued the search-warrant
before be had complied with the provisions of the law which were intended
as a safeguard against the undue issue of search-warrants under Aot
No. XI of 1878. We cannot find, and the learned Public Prosecutor has
not been able to refer us to, any record by the District Magistrate setting
out the grounds of his belief that there were in the possession of
appellant weapons kept by him for an unlawful purpose.

* Criminal Appeal No. 723 of 1892.
800



YII] QUEEN-EMPRESS V. SANGAN LAL 15 All. 131

Even the warrant, which was issued apparently without any such 1893
record, is silent upon this important point, viz , the fact of any unlawful JAN. 21,
purpose. We trust that after this clear expression of our opinion we shall
always find placed on record by Magistrates, before they issue search- APPEL-
warrants under this Act, the grounds of their belief that there are in the LATE
house which it is proposed to search weapons kept for an unlawful CRIMINAL
purpose.

The facts that the weapons were found in the place described by the 15 A. 129
police and that Sargam Lai possesses no license for the possession of any 13 A.W.N.
arms are admitted. But the learned Counsel for the appellant presses (1893) 48.
upon our notice that there is no evidence of any value to show that the
weapons were in Sangam Lai's possession or control, properly so called.

There is no evidence to show that the place where the weapons were
found was a place in the separate and exclusive possession of the
appellant;. The presumption is, and it is a presumption which is not
rebutted by one jot or tittle- of evidence, that the house, the room, the
almirah were in the possession of a joint Hindu family living joint, and
that Earn Chand, the father, who was then alive, was the managing head
of that family. Ram Chand was, as a matter of fact, at the time the
police arrived, in the pursuit of his ordinary avocations in the room where
the almirah was in which the weapons were found. There were a
masnad and other pieces of furniture which showed that he as well as the
appellant was in the habit of using that room.

[l31] In coming to the conclusion that the weapons were in the
exclusive possession of the appellant, the learned Judge has relied upon a
statement made by Rim Chand in the absence of the appellant. That
statement was not; evidence against the appellant and should never have
found a place upon the record, and we dismiss it at once from all
consideration.

The other reasons for the belief that the almirah was in the exclusive
possession and control of the *ppellant t are that the weapons were encased
in scabbards of a kind only made in Gvvalior, and that it is in evfdence
that at one time the appellant was a captain in the service of the Maharaja
of Gwalior, and further that on previous occasions the Sub-Inspector of
Daraganj had ?een this same almirah opened by the appellant with a key
in his possession.

Tbere are strong indicia of a certain amount of possession and control,
but we are not disposed in the present case to depart from the well-known
rule of law that where articles are found iu a bouse in such place or places
as several persons living in the house may have access to, there is no pre-
sumption as to possession and conjrol that those articles are in the pos-
session and control of any other person than the house-master.

Tbere are not wanting signs that the police have been too ready to
mark the house as Sangam Lai's, when in reality it was and would ordi-
narily have been described as the house of Ra,m Cband. This raises an
unpleasant doubt and makes us look more critically than we might other-
wise have done upon other evidence adduced by them to the fact that the
almirah was in the exclusive possession and control of the appellant.

We do not lay it down as an invariable rule that where weapons are
found in a house occupied by a Hindu family living jointly, possession is
necessarily that of the managing member, and the managing member only ;
but we do lay down that in all such cases where it is sought to establish
that possession and control are with some member of the family other
than the managing member, there must be good and clear evidence of the

801
A VII-101



IS All. 132 INDIAN DECISIONS, NEW SERIES

1893 fact before we can in an Act [132] of this kind arrive at such a conclusion.
JAN. 21. The Act is one highly penal and one which must be strictly construed.

In the present case, and for the reasons given above, we hold there
APPEL- h aa no fj ^en g u fg c j en fc proof that exclusive possession and control were

LATE with the appellant.

CRIMINAL. We accordingly admit the aupeal, set aside the conviction and
sentence passed upon Sangam Lai, find him not guilty of the offence with
13 A. 129= w hi c h h e S t 00 d charged, and direct that the fine, if paid, be refunded.
13 A.W.N.

(1893) 48.

15 A. 132-13 A W N. ((893) 49.

APPELLATE CIVIL.
Before Mr. Justice Tyrrell, and Mr. Justice Blair.



ISHWAR NARAIN (Plaintiff] v. JANKI (Defendant)* [24th January, 1893.]

Hindu Law Hindu Widow Rfversioner Right 1 3 sue Next presumptive reversioner
Intervening woman's estate.

The plaintiff, grandson (daughter's son) of a deceased Hindu, sued during the
lifetime of his mother to set aside a will nude by his mother's father in favour
of an idol under the management of bis step-mother, the testator's second wife.

Held, that, there being no evidence of collusion or oonnivanoe, the plaintiff, not
being the next reversioner, was not competent to maintain the suit. The fact
that his mother's estate, should it ever come into her. possession, would be only
a limited estate, would not affot the plaintiff's subsisting position in respect of
his right to suei Madari v Malki (1) followed ; Balgobind v. Earn Kumar (2)
dissented from.

[N.F., 32 0. 62 (69) = 9 C.W.N. 25 ; A.W.N. (1908), 207 ; 5 0,0. 360 (363) ; 29 P.R,
1903 ; 149 P. R. 19CH F,, 5 lud. OB. 283 (484) ; R., 3i A. 207 (209) = 9 A.L.J.
158 = 13 Ind. Gas. 632.]

THE facts of this case sufficiently appear from the judgment of the
Court.

I'andit Moti Lai, for the apnellanfc.

Mr. 0. Dillon and Munshi Bam Prasad, for the respondent.

JUDGMENT.

TYRRELL and BLAIR.' JJ. One Mangli died on the 27th of July,
1885, leaving a widow Musammat Jacki, who obtained possession
of his estate. Mangli had a daughter, Musammat Sheodeli Kuar,
who is step-daughter of Musammat Jauki. The plaintiff, appellant,
[133] here, is son of Musammat Sheodeli Kuar. He sued Musammat
Janki for a declaration that he is the adopted son and heir of Mangli,
entitled to succeed him, and that a will relied on by the defendant, respon-
dent here, is not genuine and was not the will of Mangli. This will
purports to have been executed on the 25th of July, 1885, two days before
Mangli's death, and to give Mangli's estate to an idol under the manage-
ment of Musammat Janki. The Court below dismissed the suit in all
respects, finding (a) that the adoption was not proved, and (6) that the
plaintiff not being reversioner presumptive could not maintain the claim
in respect of the will. The question of adoption is not before us.

First Appeal, No. 114 of 1890, from a decree of Maulvi 8yed Akbar Husain,
Subordinate Judge of C.vwupore, dated the 31st March, 1890.

(1) 6 A. 428. (2) 6 A. 431.

802



YII] KARIM-UN-NISSA V. PHUL CHAND 13 All. 13i

learnad vakil for the appellant informs us that bis client submits to the 1893
decree below on this point. But he contends that the appellant is qualified JAN. 24.
to sue as reversioner, because his mother, though undoubtedly she stands
now between him and the reversion of Mangli's estate, would take a Hindu APPEL-
woman's interest only in the estate, and therefore the appellant is the LATE
presumptive reversioner qua, the title absolute to Mangli estate. In sup- CIVIL

port of this argument we were referred to a judgment of this Court in '

Balqobind v. Bam Kumar (l) which favours the appellant's csa. But we 15 A. 132=
prefer to adopt the view of the learned Judges in Madari v. Malki (2) who 13 A.W.N.
refused to hold that " in the absence of any proof of collusion or connivance (1893) 19.
between the defendant (the alienor), and her daughters, the plaintiffs in the
presence of the latter (the daughters) would be competent to maintain the
suit. "

We fail to discern any sound reason for holding that the accident
that the interest in the property left by Mangli would in his daughters'
hands, if it ever reaches them, be of a less absolute character than it
would be in the hands of the appellant, should it ever come to him, can
affect the unquestionable fact that at present Macgli's daughter is his
next reversioner and that her SOD, the appellant, is not. We dismiss
the appeal with costs.

Appeal dismissed.

ISA. 134 =13 A.W.N. (1893) 51.
[134] APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, and Mr. Justice
Aikman.



KARIM-UN-NISSA AND OTHERS (Defendants) v. PHUL CHAND (Plaintiff) .*

[27th January, 1893.]
Civil Procedure Code, ss. 263, 274 Mortgage-bond Attachment.

Where the rights and interests under his mortgage of a mortgagee out of posses-
sion are attached in execution of a decree, tha procedure by whinb such attach-
ment must be effected is that prescribed by s. 268 of the Code of Civil Procedure,
Section 274 of the Code cannot be applied in such a case, Bhawani Kuar v,
Gulab Rai (3) distinguished.

[R., 18 A. 469 = 16 A.W.N. 154 ; 26 B. 305 (310. =4 Bom. L.B. 18; 14 C.P.L.R 5 (8) ;
13 Ind. Gas. 91 = 22 M.L.J. 105 (106) = 10 M.L.T. 503 = (1911) 2M.W.N. 590; 18,
Ind. Cas. 492 (493),]

IN this case the plaintiff, Phul Chand, held a simple money-decree
against one Ismail Khan. In execution of that decree he attached a
mortgage-bond held by Ismail Khan upon certain property belonging to
one Faiz Muhammad Khan. Under that attachment the mortgage-bond
was brought to sale and purchased by the decree-holder. The decree-
holder then proceeded to bring a suit upon the mortgage-bond against the
mortgagor and other persons who were said to have been interested in
various ways in the mortgaged property. The suit was defended on
several grounds, but mainly on the ground that, as the attachment of the

First Appeal, No. 85 of 1892, frorr. an order of A.M. Markham, Eeq., District Judge
Of Meetut, dated the I6ih April, 1892.

(1) 6 A. 431. (2) 6 A. 428. (3) 1 A. 348.

803



15 All. 135



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 mortgage-bond had been effected under s. 268 and not under s. 274 of the

JAN. 27. Coda of Civil Procedure, such attachment was illegal, and consequently no

rights under the mortgage had passed to the decree-holder, purchaser, by

APPEL- the subsequent sale. The Court of first instance (the Subordinate Judge

LATE of Meerut) held that the plea above mentioned was fatal to the plaintiff's

CIVIL ca8e aD ^ dismissed his suit accordingly. On appeal the District Judge

' agreed in holding that the attachment should have been made under

15 A. 134= s. 274 of the Code of Civil Procedure ; but, considering that this defect in

13 A.W.N. the mode of attachment was cured by the .subsequent grant of the sale-

(189S) 51. certificate, decreed the plaintiff's appeal and remanded the case under

8. 562 of the Code to the first Court. From this order of remand the

defendants appealed to the High Court.

Mr. Amir-ud-din and Mr. Abdul Majid. for the appellants.
Mr. D. Banerji, for the respondent.

JUDGMENT.

[135] EDGE, C.J., and AIRMAN, J. This is an appeal from an
order of remat.J made under s. 562 of the Code of Civil Procedure. The
plaintiff brought his suit upon an hypoihecation-bond. He was not the
original mortgagee ; he became the purchaser of the bond at an auction-
sale under a decree against the mortgagee.

The defendants in this suit brought this appeal. On their behalf
it has been contended by Mr. Amir-ud-din that the plaintiff derived no
title to the bond under the auction-sale at which he purchased the debt
secured by it. The ground of that contention is based on the attachment
which preceded the sale having been made under s. 268 and not under
B. 274 of the Code of Civil Procedure, it being contended that s. 268
is inapplicable to the case.

Mi'. Amir-ud-din contends that as the bond charged immoveble pro-
perby ib created a benefib in that immoveable property, and that the atbach-
ment to have been good should have been made under s. 274. He refers
to a decision of this Court in Bhaivani Kuar v. Gulab Rai (1). That was
a case of a sale of a decree under Act "VIII of 1859. Act; VIII of 1859
did not contain a section similar to s. 273 of the present Code which pro-
vides the mode in which decrees are to be attached. Ib appears to us that
it would have been impossible to have proceeded under s. 274 of the Code
of Civil Procedure in this case, The thing which was sold was the debt
due to the mortgagee who was not in possession of, and apparently at the
date of the sale had no right to the possession of, the mortgaged immove-
able property. We fail to see bow s. 274 could have been applied. Where
was the order to be proclaimed and where was the order to be fixed up?
There would have been no right to go upon the property to fix up the
order. Section 274 hardly means that a copy of the order under that
section was to be fixed up on a conspicuous parb of the bond or that the
order was to be proclaimed on some parb of the bond or adjacent thereto,
and yeb something of-the kind would be necessary if s. 274 applied.

It appears to us that s. 268 does apply. What was attached
was a debt not secured by a negotiable instrument. The security
[136] passed on the sale of the debt. We are consequently of opinion
that the right and interest of the mortgagee under that bond vested in the
plaintiff on the sale at auction under the decree.
We dismiss the appeal with costs.

Appeal dismissed.

(1) 1 A. 348,
804



YII] QUEEN-EMPRESS V. RAM LAL IS All, 137

15 A 136 = 13 A W.N. (1893) 50. 1893

APPELLATE CRIMINAL. EBJJ.

Before Mr. Justice Tyrrell and, Mr Justice Aikman. APPEL-

LATE
QUEEN-EMPRESS u. RAM LAL.* [3rd February, 1893]. CRIMINAL.

Criminal Procedure Cole, ss. 263. 428, 537 Material irregularity Assessors, statement ^5 135^
of decease ipsrson not proved in their presence. 13 A W N

Where in a trial for murder held with assessors the Court relied on a statement (1593) 59,
made by the deceased, and the evidence necesrary to prove suoh statement was
not recorded until after the close of the trial and the discharge of the assessors-
Held that this amounted to a material irregularity which was not covered by
s. 537 of the Code of Criminal Procedure,

[R,, 24 M, 523 (535) = 2 Weir 346.]

THE facts of this case sufficiently appear from the judgment of the
Court.

The Public Prosecutor (Mr. A. Strachey) for the Crown.
The appellant was not represented.

JUDGMENT.

TYRRELL and AlKMAN, JJ. In this case one Ram Lai was con-
victed by the Additional Sessions Judge of Farakhabad of murdering
a man named Baldeo by shooting him in the back, and was sentenced
to transportation for life.

Against this conviction and sentence he appeals.

For the prosecution five witnesses were called who are alleged to have
been present when Baldeo was shot. These witnesses were discredited
by the Additional Sassions Judge for reasons the validity of which, in
view of the order we think it necessary to pass, we will not now discuss.
The Additional Sessions Judge based his judgment mainly on a statement
made by the deceased. Evidence to prove that statement was not recorded
by the Additional Sessions Judge until after the assessors had been dis-
charged. We consider this an error which vitiates the trial. Section 268
of the Code of [137] Criminal Procedure provides that all trials before a
Court of Sessions shall be either by jury or with the aid of assessors. In
only one instance is a Court of Sessions authorized to record evidence in the
absence of jury or assessors and that is when additional evidence is called for
by the Appellate Court (Vide s. 428, Code of Criminal Procedure). But in
the present case the evidence to prove the statement made by the deceased
was recorded before a tribunal which had no authority to record it. It
was in fact evidence recorded coram non judice. We consider this a
material irregularity which is not covered by the provisions of s. 537 of
the Code of Criminal Procedure. We are therefore obliged to set aside the
conviction and sentence, and to direct that the accused, Ram Lai, be tried
de now, and we direct that the new trial be had before the Sessions Judge
of Farakhabad.



* Criminal Appeal, No, 731 of 1892.
805



1893

FEB. 3,

REVI-

SIONAL

CIVIL.

ISA. 137 =
13A.W.N.

(1893) 63,



15 All. 138 INDIAN DECISIONS, NEW SERIES [Yol.

18 A. 137 = 13 A.W.N. (1893) 63.

BEVISIONAL CIVIL.
Before Sir John Edge, Kt , Chief Justice, and Mr. Justice Aikman.



LACHMAN SINGH (Plaintiff) v. GHASI AND OTHERS (Defendants)*
[3rd February, 1893 ]

Act XII rflfi8P, ss. 93 <g) W5Act XIX of 1873, s. 146 " Proprietor" "Co-sharer"
Civil and Revenue Courts, jurndict.cn of.

Where a lambardar brought a, suit for arrears of land revenue payable by the
proprietors against several defendeants of whcru some vibre co-sharers and others
mortgagees in possession. Held that such suit was one of the nature contem-
plated by s. 93 (g) of the North- Western Provinces Bent Act, 1881, and was
cognizable by a Court of Revenue as against all the defendants,

[P., 2 O.C. 64 ; 2 0.0. 299 (301) ! R., 20 A. 19 (22).]

IN this case the plaintiff, a lambardar, sued the defendants (some
thirteen in number) in the Court of the Assistant Collector of Bulandshahr
for recovery of arrears of revenue. In the plaint the defendants were
described collectively as "co-sharers," but it appeared that of the thirteen
only three were co-sharers and the remainder were mortgagees in posses-
sion. The Assistant Collector, holding that the term "co-sharer" could
not include a mortgagee, [138] dismissed the suit on the ground that it
was not cognizable by a Court of Revenue.

The plaintiff appealed to the Collector, who referred the question to
the High Court under s. 205 of Act No. XII of 1881, by his order of the
25th of January 1892, which is given below

" In this case the lambardar has sued the shareholders of a joint
khata for arrears of Government revenue. In the khata there are some of
the shares mortgaged to mortgagees and some of them still held by the
co-sharers of the mahal. The lower Court has dismissed the lambardar's
claim relying on the decision of the Full Bench ruling of the High Court
in Bhawani Gir v. Dalmardan Gir (1). That decision was based on the
law as it stood before the passing of Act VIII of 1879, by which Act XIX
of 1873 was amended. Now by that Amending Act "proprietor" includes
mortgagee in s. 147, Act XIX of 1873, and therefore, a mortgagee is
thereby rendered specially liable for the revenue of the mahal. The
lambardar accordingly sues for it only ; he sues the co-sharers under the
Rent Act instead of the " proprietors," as the latter word does not occur
in Act XII of 1881. The question therefore arises as to whether under
the amended law of Revenue (Act XIX of 1873), and s. 93 (g), Act XII
of 1881, a lambirdar can sue the martgagee of a co-aharer for arrears of
revenue in a Revenue Court or no : in other words, since the word
11 proprietor " covers a mortgagee in liability for the Government revenue
does the substitution for the word " proprietor " of the word " co-sharer "
in s. 93 (g), Act XII of 1881, preclude the lambardar from suing for
arrears of revenue in the Revenue Courts.

The record in the case will therefore be forwarded to the District
Judge of Meerut under s. 205 of the Rent Act for the decision of the
Hon'ble the High Court on the above point."

* Miscellaneous No. 27 of 1892. A reference under s. 205 of Act XII of 1881
(N.W.P. Rent Aot) by H.P. Punnett, Esq , Collector of Bulandshahr, dated the 29th.
July, 1892.

0) 3 A. 144.



806



YII]



B. N. SAHAI V. OFFL. LIQUDE. OF H. BANK 15 All. 140



On this reference the following opinion was pronounced :

OPINION.

EDGE, C.J., and AIRMAN, J. This is a reference under s. 205
of Act No. Xll of 1831. The suit was brought in the Revenue Court
[139] by a lambardar against certain persons who undoubtedly were co-
sharers and also against certain mortgagees in possession for arrears of
revenue payable by the proprietors, as the word " proprietor " is defined
in s. 146 of Act No. XIX of 1873, through the lambardar. It is a suit
contemplated by s. 93, cl. (g) and the jurisdiction of the Revenue Court
is not in our opinion limited by the word "co-sharer" in that clause. This
suit was one cognizable by the Court of Revenue against all the defend-
ants.

This is our answer to the reference. The Appellate Court will pro-
ceed to decide the appeal according to law.



15 A 139 = 13 A.W.N. (1893) 59.

REVISIONAL CIVIL.
Before Mr. Justice Burkitt.



1893
FEB. 3,

REVI-
SIONAL
CIVIL.

15 A. 137^

13 A.W.N.

(1893) 63.



RAGHU NATH SAHAI (Defendant) v. THE OFFICIAL LIQUIDATOR
OF THE HIMALAYA BANK, LD. (Plaintiff-).*
(3rd February, 1893.]

Act IX of 1887, s. 25 Civil Pro:edure Co-'e s. 622 Revision Limitation Wrong
decision of a point of limitation no ground for revision

An application under s. 25 of Act IX of 1887 to set aside a decree ought not to be
entertained excapt in o^aes in which a similar application under s. 62-2 of the
Code of Civil Procedure would be allowed.

Such an application will not lie where the sole ground is whether the first
Court wa=? or wa? not right in its decision on a question of limitation.

Amir Hassan Khan v, Sheo Bak&h Singh (1) referred to.

[Appl., 16 A. 39 (40.; R , 16 A. 476 1477,; 21 A. 89 (90i; 21 B. 250 (255'; 6 A.L.J. 944
= 3 Ind. C-8. 817 ; 11 C P L R. 91 ; 17 lad, Gas. 470 (471) = 15 0,G. 319 ; 2 L.B.
R. 333; 4 N.L.R, 184 (185). j

THE facts of this case sufficiently appear from the judgment of
Burkitt, J.

Pandit Moti Lai, for applicant.

Mr. J. E, Howard, for the opposite party.

JUDGMENT.

BORKITT, J. This is an application under s. 25 of the Provincial
Small Cause Courts Act asking this Court to set aside a decree
passed by the Subordinate Judge of Dehra in the exercise of his
powers as Small Cause Court Judge. The allegation made by appellant
is that the suit was for certain' reasons time-barred at the [140]
date of its institution. That question was fully considered by the
Court below and decided against the applicant-defendant. The present



* Application No 44 of 1892 for revision of an order uuder 8. 622, Civil Pro-
cedure Code, passed by R- Graeven, E-q., Subordinate Judge of Dehra Dun, dated
the 14th June, 1892.

(1) 11 C. 6.

807



15 All. 141



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 application is practically an appeal against that decision. It was decided

FEB. 3. by a Pull Bench of this Court in the -case of Muhammad Bakar v. Bahal

Singh (1) that s. 25 of the Provincial Small Cause Courts Act does not

EEVI- give a right of appeal in all Small Cause Court cases either on law or on

SIGNAL fact, and that the powers conferred on this Court by that sestion are

ClVIL. purely discretionary and not to be asTeise^ unlrsa it appeared that some

substantial injustice had resulted from the decree of the Court of Small

13 A, 139= Causes. In the present case I am not inclined on a consideration of the

13 A.W.N. facts to use that discretion in favour of the applicant. Whether the Small

(1893) 59. Cause Court Judge was right or wrong in the view he took of the question

of limitation (as to which I say nothing) there can be no doubt that

applicant did owe the mouey to recover which the suit was brought.

In my opinion an application under s. 25 of the Small Cause Courts
Act to set aside a decree (which by law is final) ought not to be entertained
except in cases where a similar application under s. 622 of the Code of



Online LibraryChas. A. Stevens & BrosThe 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 7) → online text (page 118 of 155)