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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 119 of 155)
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Civil Procedure would bo allowed, and in my opinion an application under
fl. 622 founded only on a question of limitation could not be entertained.
In the case of Amir Hassan Khan v. Sheo Bakhsh Singh (2) their Lord-
ships of the Privy Council held that a question of res judicata was a
question which the Court hearing the suit in which it arose had perfect
jurisdiction to decide, and even if that Court decided that question
wrongly it did not thereby exercise its jurisdiction illegally or with
material irregularity. I confess I can see no difference between a ques-
tion of res judicata and a question of limitation. It was contended that
because s. 4 of the Limitation Act directs that a suit barred by limitation
shall be dismissed, therefore in this case the Court below, if it were wrong
in its decision on the limitation question, disobeyed a positive prohibition of
the law and therefore acted wuh material irregularity, But surely the
prohibition contained in s. 13 [Hi] of the Code of Civil Procedure direct-
ing a Court not to try any suit or is-<U9 which is barred by res judicata is
couched in just as strong and emphatic language as the direction in s. 4
of tha Limitation Act. I am unable to understand then why in the one
case a wrong decision of a question of " res judicata " should not be
considered good ground for an application under s. 622, while in the other
ease a wrong decision of a limitation question should be held to be
sufficient for such an application. Tne prohibition against the hearing
of a sait in each case rests on the same foundation, namely, on the
Statute law, and is equally emphatic in each ca^e. As therefore it has
been clearly laid down by their Lordships of the Privy Council that a
qustion of res judicata is not one on which an application under s. 622
can be made, I hold that the same rule applies to a question of limita-
tion. Such a qustjon cannot in my ooinioo ba raised under s. 622 of
the Code of Civil Procedure, and therefore a fortiori I decline to take
it up under s. 25 of the Small Cause Courts Act.
I dismiss this application with costs.

Application rejected.

(1) 13 A. 377.

(2) 11 G. 6.



13 A. 141 = 13 A.W.N. (1893) S9. 4593


Before Mr. Justice Knox. RE VI-


Act III of 1877, s. 73 Criminal Pro'eiure Code, s. 195 Registrar "Court." C~T,*

15 A i 141 =ai

A Registrar acting under s. 73 of the Indian Registration Aot. 1377, is not a ._ _
Court within the meaning of s. 195 of the Code of Criminal Procedure. Atchayya ' ' '

v. Gangakya (1) dissented form. 893 ^ ^ 9i

[R,, 10 Cr.L.J, 395 (405) = 3 lad. Cia. 886 = 3 8 L.R. 66; 13 Cr. L J. 508 (509) = 15
Ind.Cas. 652 = U912) M.W N. 473 = 23 M.L J. 50.]

THE facts of this case sufficiently appear from the judgment; of Knox, J.
The Public Prosecutor (Mr. A. Strachey), for the Crown.
Mr. A, H. S. Reid, for the opposite parties.


KNOX, J. Ram Lai and three other persons stand committed to the
Sessions Court of Meerut to take their trial upon a charge framed under
s. 167 of the Indian Penal Code. Tbe learned Judge [142] of Meerut has
through the Public Prosecutor presented a petition to this Court asking
that; the case may be transferred for trial to some other Sessions Court.
The ground given for the transfer is that he in his capacity as District
Registrar has already had before him the bond which forms the subject-
matter of this trial. On that occasion he came to the conclusion that the
bond was a forged one and that the four persons now on trial were parsons
concerned with its preparation.

Notice was accordingly issued to the four accused to show cause
why the trial should not be transferred for hearing to another District
Court. In answer to this notice tbey set up a plea that the order of
commitment is illegal, on the ground that no sanction has been given
and that under s. 195 of the Code of Criminal Procedure sanction is
necessary before any proceedings can be taken against them under
s. 467 of the Indian Penal Code.

Mr. Reid, who appeared on their bahalf, based this plea upon a
Full Bench ruling of the Madras High Court. (Atchayya v. Gangayya) (1).

In that case the question now raised before me was before the
Madras Oourt and a Full Bench of that Court did undoubtedly decide
that a Registrar acting under ss. 72 to 75 of the Indian Registration Act
was a Court for the purposes of s. 195 of the Code of Criminal Procedure.
The language used in the judgments of the several Judges sbows that they
came to this conclusion with some hesitation.

The main ground upon which they were led to this conclusion
appears to have been the consideration that in acting under ss. 72 to 75
of the Indian Registration Act a Registrar exercises more than mere
administrative functions ; that he has to consider the weight and
credibility of evidence adduced before him and to forna his own con-
clusions. They in fact imported the definition of " Court " given in s. <
of the Indian Evidence Act into, and by it interpreted the word " Court "
as it exists in, s. 195 of the Code of Criminal Procedure.

* Miscellaneous No. 193 of 1892.
(1) 15 M. 138.


A vii ioa


1893 [1^3] With every respect to the conclusion arrived at by the learned

FEB. 7, Judges, I find myself unable to adopt the view they took of the law. I do

not find myself at liberty to import into the Code definitions which are

EEVI- provided for the purposes of some other Act of tbe Legislature. The Code

SIGNAL contains a section wbicb is devoted to the defining of words which might

CRIMINAL, have an ambiguous meaning, and in that section there is a particular clause

which empowers me to adopt and to import into the Code the definition

15 A. 141= O f W ords which have been expressly defined in the Indian Penal Code, but

13 A.W.N. cj oea no fc empower me to import definitions from any other Act, such, for

(1893) 59. instance, as the Indian Evidence Act, which was in existence at the time

when tho Code of Criminal Procedure found its place in its present form

on the Statute Book. The word " Court " must be taken in its ordinary

sense, and tbe word would not in ordinary language be one used of the

office of a Eegistrar. Throughout the Indian Eegistration Act the Eegis-

trar is described as an officer and his place of business as an office. When

it is necessary to invest him with the powers and privileges of a Court the

language used is language which clearly implies that he is not a Court.

Section 75 of Act III of 1877 makes use of tbe expression "as if he were

a Civil Court." In s. 483 of the Code of Criminal Procedure he is to be

deemed to be a Civil Court "for special purposes." I accordingly, as on

a previous occasion in this Court, hold that he is nob a Court within the

meaning of "the word as used in s. 195 of the Code.

I accordingly direct that the trial in this case be transferred to the
Court of Sessions at Sabaranpur, this being a Court which I am informed
will be more convenient for the parties and the witnesses than the Court
at Aligarh.

ISA. 143=13 A.W N. (1893) 63.


Before Mr. Justice Knox.

MAHBUBAN (Applicant] v. FAKIR BAKHSH (Opposite Party).*
[17th February, 1893.]

Criminal Proctdure Coie, ss. 488, 490 Order fcr maintenance of wife Application ly
iv 'ft to enfciice order Plea that flppiicant had been divorced Duty of Court to
which api libation for inf^rcene^t is madi.

Where a person in whose favour an order under s. 488 of the Code of Criminal
Procedure has been made tnkaa that order before a Magistrate, and the Magistrate
[144] finds that he has jurisdiotion owing to the residence of the person affected
by tbe order, and is satii-fied as to the identity of the parties and the non-pay-
ment of the allowance due, it is his duty to enforce the order for maintenance.
It is no part of the duty of a Magistrate on such an application as above men-
tioned, viz , an application under s. 490 of the Code of Criminal Procedure, to en-
tertain a plea by the party against whom the order is sought to be enforced to the
effect that he bin divorced the applicant, and is therefore no longer liable to pay
maintenance. Ztb un n ssa v. Mendu Ehan (1) dissented from.

[P., U.B.B. (1897-1001), Vol. I, 112 (113) ; D., 19 A. 50 = 16 A.W.N. 173.

THIS was a reference made by tbe District Judge of Cawnpore under
s. 438 of the Code of Criminal Procedure. Tbe facts of the case suffi-
ciently appear from the judgment of Knox, J.

Maulvi Ghulam Mujtaba, for tbe opposite party.

Criminal Revision, No. 670 of 1892.
(1) 5 A.W.H. (1885) 29,




KNOX, J. In this case a sum of Rs. 3 was awarded as maintenance FEB> 17t
to one Musammab Mabbuban, wife of Fakir Bakhsb, on the 17th of June, ~
1886. Musammat Mahbuban, on the 20bh of July, 1892, took the order OR1
under s. 490 of the Code of Criminal Procedure before the Joint Magis- REVISION,
trate of Gawnpore and prayed that the order might be enforced against 13 ^ 143 =
Fakir Bakhsh, who was a resident of Cawnpore. When the case came ^3 AWN
before the Joint Magistrate, Fakir Bakbsh objected and stated that as be M898) 63.
had divorced Musammat Mahbuban and she was no longer his wife, the
order of maintenance could no longer run against him. The Joint
Magistrate went into the question whether Fakir Bakhsh had or had not
divorced Musammat Mabbuban, came to the conclusion that he had, and
that Musammat Mahbuban was DO longer, his wife and therefore bad no
power to apply any more for enforcement of the order granted in her
favour on the 17th of June 1886. The District Judge of Cawnpore has
sent up the case to this Court in accordance with the provisions of s. 438
of the Code, beicg of opinion that the Joint Magistrate was wrong in
assuming that the maintenance order became invalid as a necessary con-
sequence of the divorce. Musammat Mahbuban was not represented in this
Court, but Mr. Gulam Mujtaba, who appeared for Fakir Bakhsh, contended
that the order of tbe Joint Magistrate was a good and proper order, and in
support of the contention referred me to Kasam Pirbhai and his wife Ilirabai
[145] (1). This was a case in which an order was made by a Magistrate
under Act XLVIII of I860, s. 10. The Act contains no provision corres-
ponding to s. 490 of the Cede of Criminal Procedure. This case was
followed by tbe Bombay High Court in In re Abdul Ali Ishmailji and bis
wife Husenbi ( 2). The application before the Bombay Court was one made
under s. 147 of the High Courts' Criminal Procedure Act of 1875. Tbe
husband was the petitioner and prayed that the order for maintenance
which bad been passed by tbe Chief Presidency Magistrate of Bombay,
might be set aside on the ground that he, having divorced his wife, was no-
longer liable to provide for her. Tbe Court, without giving any reasons
for his judgment and following the precedent laid down in In re Kasam
Pirbhai and his wife Hirabai, the case above alluded to, held that the
Magistrate should no longer enforce bis order for payment of maintenance-
Mr. Ghulam Mujtaba next referred me to the precedent of this Court in
In re Din Muhammad '3). In that case tbe application immediately before
the Court, and therefore the application with which the Court dealt,
was an application made by the husband that an order for maintenance
might be set aside on tbe ground that he had divorced his wife accordicg to
the Mubammadan law. The judgment shows that the application was put
forward under the section of Act X of 1872, which corresponds tos. 489 of
the present Code. Tbe application was held to have been rightly rejected.
Tbe Court refused to interfere, not on tbe grounds given by the Assistant
Magistrate, but upon a point which incidentally arose, namely, that in any
case a wife wbo had been divorced is entitled to maintenance till the expira-
tion of the term known in the Muhammadan law as iddut. In tbe course-
of the judgment the learned Judge who delivered judgment cited with
approval a judgment of the Calcutta High Court in which it was
held that a Magistrate ought not to issue attachment upon or other-
wise to execute an order for maintenance when the application was
made by a wife who had been divorced on the ground that tbe order

(1) 8 B.H.C.R. 95. (2) 7 B. ISO. (3) 5 A. 226.



1893 [145] was functus offioio, and the view approved of wag that when a
FEB. 17. Magistrate found that there had been a valid dissolution of the marriage

- tie he should refrain from taking any steps to enforce the order for
CRIMINAL maintenance from the date of such dissolution. In all the casea

BEVISION. that have been cited so far it is noteworthy that the application

- _ with which the Courts bad to deal were applications made by hus-

kaods fco sefc a9 ide orders for maintenance. In not one case so far

A w

' ' as the reports show were the Courts deaUug within an application on

the part "of the wife to have an order for maintenance enforced.
There is, however, a case of this Court in Zeb-un-nissa v. MenduKhan (1)
in which the point raised before the Court was exactly the same as
that with which I have to deal. Musammat Zeb-un-mssa sought to
enforce the maintenance order in her favour. She was met by her husband
with a plea that he had divorced her. The Magistrate declined to enforce
the maintenance order, and the Judge reported the case, as in the present
instance, and this Court was of opinion that before the Magistrate could
pass the order he had done, he should have ascertained and determined tha
date when Musammat Zeb-un-nissa was legally divorced from her husband
and to what arrears of maintenance she was entitled up to that date. The
view taken by the Sessions Judge was the view taken by this Court, and
Mr. Justice Oldfield added that the lady would not be entitled to mainte-
nance after the date of divorce, but was so up to that date. I find myself
unable to follow that precedent. The terms of s. 490 of the Code of
Criminal Procedure are very clear and precise. They lay down that
persons to whom an order for maintenance has been given are entitled to
take that order before the Magistrate of the place in which the persons
upon whom the order is made reside. The section goes on to provide
that such order shall be enfroceable by any Magistrate in the place on
suoh Magistrate being satisfied as to the identity of the parties and
the non-payment of the allowance due. No power, it appears to me,
is given to such Magistrate to make any further inquiry. It must
be clearly understood that I am dealing with the case falling under [l$7]
s. 490 and am not now considering how or in what way a person against
whom an order for maintenance has been given should move or act if he
wishes to have the order set aside. What I now decide is that when a person
in whose favour such an order has been given takes it before a Magistrate,
and the Magistrate finds that he has jurisdiction owing to the residence
of the person affected by the order, and is satisfied as to the identity
of the parties and the non-payment of the allowance due, it is his duty to
enforce the order for maintenance. For these reasons I direct that the
order of the Joint Magistrate by which he rejected the application for
enforcement be set aside and that he be directed to confine himself to the
question of the identity of parties and the non-payment of maintenance,
and if he is satisfied on these points to enforce the application of Musam-
mat Mahbuban as it stands.

(1) 5 A.W.N. (1885), 29.


ISA. 147 = 13 A.W.N. (1893) 85.


Before Mr. Justice Tyrrell and Mr. Justice Blair. APPEL-


(Defendant).* [7th February, 1893.]

Wajib ul~ ar z Improver use of ivijib-ul aiz fa record wishes o/ sole proprietor of village _ ~
Succession Hinau law Primogeniture. " A.W.N.

The objeot of tbe wajib ul aiz is to supply a reliable record of existing local
custom. It was never intended that the icajib-ul-arz should be used as an in-
direct means of giving effect to the wishes of a sole proprietor with regard to tbe
nature of his tenure or the mode of devolution of the property which should
obtain after his death.

tR., 5 A.L.J. 79.]

THE facts of this case are fully stated in the judgment of Blair, J.

Mr. A. Struchey, Mr. D. Banerji and Munshi Earn Prasad, for the

Mr. T. Gonlan, Babu Jogindro Nath Chaudri and Munshi Gobind
Prasad, for the respondent.


BLAIR, J. In this case Kuar Superunddhwaja Prasad Singh was
the appellant and Thakur Garuraddhwaja Prasad Singh was [148] the
respondent. The appellant was the plaintiff in the original suit, the
respondent, the defendant. The parties are brothers. Tbe plaintiff-
appellant, who has been defeated in the Court below, claims that under
the ordinary customary law of the Hindus he is entitled equally with his
brother to the moveable and immoveable property inherited from thsir
father. The matter has been tried at great length and with much elabo-
ration, and upon first appeal to this Court it occupied, not improperly,
something like a week in argument. The plaintiff in this case sets up a
customary law. The defendant sets up a privilegium in his family of
inheritance by primogeniture. This plea throws upon the defendant the
whole onus of proof. Now as to what the character and extent of such
proof must be I would quote the expressions used by the Subordinate
Judge who tried the case and who referred to authority upon the question.
He said : "It must be proved by satisfactory and conclusive evidence and
it must be proved to be ancient or long established, invariable and certain."
Again in quoting another case he uses the expressions of the Court which
are : "Their Lordships are fully sensible of the importance and justice
of giving effect to long-established usages existing in particular districts
and families in India ; but it is of the essence of special usages modifying
the ordinary law of succession that they should be established to be so by
clear and unambiguous evidence. It is only by means of such evidence
that the courts can be assured of their existence, and that they possess the
conditions of antiquity and certainty on which alone their legal title to
recognition depends." I would add that the series of acts by which a cus-
tom is to be established must be plural, uniform and constant. Now in this
case the defendant in satisfaction of the demand made upon him by law
has laid before the court evidence of various degrees of solidity and

* First Appeal. No. 124 of 1889, from a decree of Babu Abinash Chandra Banerji,
Subordinate Judge of Aligarb, dated the llth January, 1889,


15 All. 149



1893 cogency. He deduces the early history of the family which for con-
FEB. 7. venience's sake I shall call the Beswan family from a work published in
1875, called the Statistical Description and Historical Account of the
APPEL- North-Western Provinces of India, prepared under the orders of the
LATE Government of India by E. T. Atkinson, B.A., of the Bengal Civil
CIVIL. Service. Now I do nob care to raise any question as to the admis-
[14<9]gibility of this book in evidence, as it appears that it has been used
15 A. 117= throughout the case with the entire acquiescence of both sides. But I do
13 A.W.N. not mean in dealing with it to treat it as a work of authority and unfail-
(1893) 85. ing accuracy, because I find myself, as the learned Subordinate Judge haa
found, " that as regards the Beswan family, many particulars given in it
are quite wrong and are disproved by the evidence adduced in this case."
Now I have myself examined the book with much care and I find grave
inaccuracies in it not altogether unitnoortanb in dealing with the suit. I
shall therefore take the evidence of Mr. Atkinson, and coupled with it the
oral evidence of repute in relation to the family pedigree and, to some
slight extent, the family history. The pedigrees which have been drawn
by the Subordinate Judge from these two sources will be copied and
a copy of each will be attached to and will form part of this judg-
ment. Up to the commencement of the British rule in or about the
year 1803, we have to rely almost entirely upon the information gathered
by the earlier Collectors who were entrusted by the Bast India
Company with the administration and collection of Government
revenues. But there is a very large mass of oral evidence put in by
the defendant, apparently without exception by the plaintiff, of traditions
connected nob only with the family pedigree, but extending further to the
custom of inheritance in the family and to matters put forward in support
of the views entertained by the several witnesses. I think that this evi-
dence may with advantage' be summed up briefly. A large number of
persons connected with the family upon one side or the other, and likely
thereby to be specially well informed as to matters of pedigree, also give
expression to a belief based upon much more doubtful foundation as to the
devolution of property in the family. The evidence in this respect, if ad-
missible at all, which is doubtful, has still been admitted by the consent
of both parties, and forms a substantial part of the basis of the decision in
the Court below. While not taking it upon myself to reject in toto this
most dubious evidence, I think when it comes to be properly discounbed its
value will ba minimised to the vanishing point. Thab thera was, so to speak,
floating in the air an impression current among many members of iheBeswan
family that[l50] inheritance in the family proceeded by the rule of primoge-
niture, I feel no reason to doubt. I think thab bhe impression made upon the
minds of parsons who were cognizant of successive devolutions, in which in
every case the possession and control of the property fell to the eldest son,
is very easily accounted for, but would probably never have existed had
they possessed the information and accurate knowledge which in respect
to some of these devolutions is now before us. It seems to have been a
part of the family consensus of tradition that from Bhuri Singh, who
appears to have been hrotherless, the property descended to his oldest sou,
Nawal Singh ; that on the death of Nawal Singh his eldest son, Harkishan,
became the apparent proprietor of the property ; that at his decease
the eldest son, Jai Kishore, would appear to all the world as the
person in possession and control of the family property and that
upon his decease, after the brief remnant of a life which remained
to Girdhar Singh had expired, Gir Prasad Singh became, as sola




surviving brother, the apparent owner of the Beswan inheritance.
It was not an unnatural inference to draw from these successive
inheritances that the system of primogeniture prevaileJ, and that the
loose, perhaps unjustified, impression which prevailed at the time when
Gir Prasad Singh came to the property received from the period of his life
a force and solidity probably unknown before. There can be little doubt
that a man of Gir Prasad's culture and wealth would not be uuattracted
by the idea of founding a family and placing its fortunes above the reach
of accident. He found among the collateral branches of the family to
which he belonged that the custom of primogeniture with all that apper-
tained to it was in force in the family of the Rija of Mursan. The same,
though in origin more dubious, may be said of the other great collateral
branch of the family, that of the Raja of Hathras ; and I cannot think with
the Subordinate Judge that an able and ambitious man anxious to render
permanent the fortunes of his family was guilty of a departure from the
moral law so grave as to be incredible to the learned Subordinate Judge.
We know that Gir Prasad Singh came to the property when he was very
young. I think at the death of his father, or, if not then, at the death of his
elder [151] brother, he was only a child of five or six years of age ; so that for
years the property had been accumulating and wealth increasing, to what
extent we know not accurately, but we remember that one of the witnesses

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 119 of 155)