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the strength of it the plaintiff as the assignee of the conditional vendees had
a good title, upon which she could prefer the claim put forward by her in
the present suit. The defendants appealed to the learned Judge [106] and his
judgment is entirely occupied with the discussion of the single question, as
to whether the plea of champerty put forward by the defendants was a
good plea and defeated the claim of the plaintiff-respondent before him.
He has come to the conclusion, for the reasons stated in his judgment, that
the transfer by the vendees of their right under the foreclosure order to the
plaintiff was a cbampertous transaction, that the consideration given was
wholly inadequate for the interest passed, and that the condition requir-
ing the vendor to make good to the vendees all the money expended by
her in the course of the litigation and otherwise, in the event of her failing
to succeed in the suit to be brought by her, was a most onerous condition,
which no Court ought to enforce.

It seems to me that the judgment of the learned Judge and his find-
ing of fact has proceeded upon a misapprehension of the ruling of the Privy
Council to which he refers. He has forgotten the circumstance that in
this case there is no conflict as between the vendors to the plaintiff
and the plaintiff in regard to the bona fides of the transaction or its
fairness. The vendors were defendants to the suit in the Court below,
but they made no defence. On the contrary ,'tbey admitted the justice of the
plaintiff's claim ; and, that being so, a decree was passed as against
them, as well as against the other defendants. It must be taken as
now finally determined that they have no right to assail their assignment
to the plaintiff upon the ground that it was an unconscionable bargain,
and so inequitable that the Court should not enforce it. That being so,
it appears to me that the answering defendants-respondents before
us and the appellants in the Court below cannot take advantage of the
terms of this arrangement between the plaintiff and her vendors for the

66



YII] HAKIM-UN-NISSA V. DEONABAIN 13 All. 108

purpose of defeating the plaintiff's claim. Because, if a person who has 1888
an actionable claim against another chooses to sell it cheap, that is no JULY 17.
reason that that other is to stand cleared and discharged altogether from
the liability that he is under to the assignor. In the present case, APPEL-
assuming it must be understood I am not deciding this question, because LATE
it was never entered into by the Court below that the foreclosure order CIVIL

was a good one, and that the defendants are themselves or represent the

original conditional vendor, [107] and that there are no legal obstacles 13 A. 102.
in the shape of limitation or otherwise standing in the way, there is no
reason that I can see why they shoud not be made to pay what, I will
presently point out, the law requires them to pay, or surrender the property.

Now the learned Judge in his judgment apparently was not aware of
the provisions which are contained in s. 135 of the Transfer of Property
Act. No doubt in the two rulings of their Lordships of the Privv Council,
one Chedambara Chatty v.. Renja Krishna Muthu Puchanja Naickar (1)
and the other Bam Coomar Coondoo v. Chunder Canto Hooker jee (2),
their Lordships have justly remarked that there is no law of champerty
or maintenance in force in India, at any rate, in the mufassil. I have had
myself occasion on more than one occasion to make the same observation.
But in the case of Jani Begam v. Jehangir Khan (3), I took occasion very
carefully to point out what appeared to me to be the departure, so far as
India is concerned, that has been taken in that respect by the Transfer of
Property Act. I regret that the view I expressed in that case was in
difference with one that had found expression from the learned Judges of
the Calcutta High Court in the case of Grish Chandra v. Kishisauri
Debi (4), and I cannot help further regretting that I still find myself in
conflict with another judgment of the same Court of the learned Chief
Justice and Tottenham, J., in Khoshdeb Biswas v. Satar Mandol (5).

But I see no reason to alter the opinion I expressed in the ruling to
which I have referred, and it seems to me that that ruling must be applied
and ought to be applied to the present case. I do not think that the
defendants are entitled to take advantage of the terms of the contract by
which the rights under the foreclosure order of the 16th June 1874: were
passed to the plaintiff. It is not found by the learned Judge nor is it
suggested that there was no contract and no real sale : what is suggested is
that there was a contract and a real sale, but for a most inadequate price.
As I have said, I do not think that the defendants are entitled to take
advantage of [108] that circumstance, but I do think they are entitled to
the benefit of the provision that is contained in the first paragraph of section
135 of the Transfer of Property Act. Hereafter when the appeal comes to be
tried upon the merits and in reference to the evidence upon the record, and
it has been found what was the true and real consideration for the assign-
ment to the plaintiff of the rights under the foreclosure of the conditional
sale-deed, the defendants will be entitled, subject to their not succeeding
upon other pleas, to take the bargain off the hands of the plaintiff by paying
to the plaintiff the price and incidental expenses of the sale with the
interest on that price from the day that the plaintiff paid it to the date
when it is repaid to her. That being the view I take of this case, it is
clear that the judgment of the learned Judge cannot stand, and that it
must be and it is set aside. This appeal being allowed, the case will be
remanded to the lower appellate Court under section 562 of the Civil

(1) 1 I. A. 241. (2) 4 I. A. 23. (3; 9 A. 476.

(4) 13 C. 145. (5) 15 C. 436.

67



13 All. 109 INDIAN DECISIONS, NEW SERIES [Vol.

1888 Procedure Code for restoration to the file of pending appeals and for
JULY 17. disposal upon the merits. Costs will be costs in the cause.

BRODHURST, J. I concur in allowing the appeal and remanding the
APPEL- case under section 562 of the Civil Procedure Code.

LATE Cause remanded.

CIVIL.

A. 108.
13 A. 102.

APPELLATE CIVIL.

Before Mr. Justice Straight and Mr. Justice Brodhurst.



KAMPHUL TIWARI AND ANOTHER (Defendants') v. BADRI NATH

(Plaintiff).* []3ih August, 3888.]
Act IX of 1859, s. 2QForje ture (f reteVs property Limitation.

A Hindu widow in possession of a six-annas zemindUn share of her husband's
sold ibe share in 1855 to persons who, in 1858, were convicted of rebellion, and
their estates, including the share, were cocfiaoated by Government. The share
was granted to other persons as a reward for loyally, and remained in their
possession until 1886, when a suit for possession and mesne profits was brought,,
just before the expiry of twelve years from the widows' death, by a revereioner to
her husband's estate, on the ground that the sale of 1855 could not affect more
than the widow's life-interest, and that nothing more had been confiscated by
the Government in 1858 [1C9] and granted to the defendants. The plaintiff
had taken no steps in 1655 to question the sale, or in 1858 to assert his claims
as reversioner.

Ufld that the suit was barred by s. 20 of Act IX of 1859. Ram Dhun v.
Bajah Bhtwanee Singh (1), Bhugwan Dass v. Banee Dalai (2), and Mahomed
Bahadur Khan v. The Collector of Bareilly (3;, referred to.

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

Pandit Ajudhia Nath and Munsbi Eashi Prasad for the appellants.
Munshi Juala Prasad for the respondent.

JUDGMENT.

BRODHURST, J. Lala Badri Nath, the plaintiff-respondent, sued th&
Secretary of State for India in Council and Eamphal and Kashi Praaad,
Brahmins, to obtain proprietary possession of a six-annas share in mauza
Sukurdeha, pargana Dhuriapara, zilla Gorakhpur, by avoidance of a sale-
deed, dated the 25th October 1855, by cancellation of mutation proceedings
and of the grant made to the defendants and by dispossession of the
defendants, and for the award of Es. 277-8 as mesne profits, with interest.

The plaintiff in his plaint alleged that bis brother, Munshi Ganesb
Prasad, purchased the share above referred to at auction sale ; that be died
without issue ; that after his death his widow, Musammat Gangan Kuari's
name was entered in the Government records by right of inheritance, in
that she remained in possession by right of life-interest ; that she sold the
share in dispute to Sheogobind Chand and Lalbebari Chand, co-sharers in
the village, on the 25th October 1855 without legal necessity, and that
false allegations were inserted in the deed of sale ; that in 1858 the
purchasers of the share were convicted of rebellion ; that all their estates,
including six-annas share in the suit, were consequently confiscated by the

* Second Appeal No. 338 of 1887, from a decree of R. J. Leeds K - q , District
Judge of Gorakhpur, dated the 6th December 1886, confirming a decree of MaulviShah
Abmad-ullab, Subordinate Judge of Gorakhpur, dated the 31st July 1886.

(1) N. W. P. H. C. R. 1868, p. 139. (3) 8.D.A. N.W.P. 1864. vol. ii. p. 220.

(3) 1 1.A, 167.

68



YII]



RAMPHUL TIWABI V. BADRI NATH



13 All. Ill



1888
AUG. 13.

APPEL-
LATE
CIVIL.



Government ; that the six-annas share was granted by the Government to
the defendants as a jagir, and that they are now in possession of it : that
Musamcnat Gangin Kuan had only a life-interest in the six-annas share;
that she died on the 9oh March [110] 1874 ; that since her death the
defendants have had no right to the share, and that their possession against
the plaintiff is illegal.

The Secretary of State in Council pleaded limitation and prayed
exemption. The other defendants, in their written statements, averred 13 A. 108
that the share in suit was confiscated by the Government in 1858, as
admitted by the plaintiff, because its then proprietor had been convicted
of rebellion ; that it was granted to the defendants, who have ever since
been in proprietary and adverse possession ; that Musammat Gangan
Kuari did not transfer merely her life-interest in the share to Sheogobind
Chand and Lalbehari Ghand, but for legal necessity made an absolute sale
to those persons of the share, with all its rights and interest ; and that
as the plaintiff did not sue to establish his claim within the period of
one year from the date of attachment or seizure of the property in suit,
his claim is barred by s. 20 of Act IX of 1859. The Subordinate Judge
who tried the suit framed five issues and held that the plaintiff's right
and interests were not confiscated ; that the plaintiff had no right to
get possession of the share during the lifetime of Musammat Gangan
Kuari ; that s. 20 of Act IX of 1859 did not apply, and that the suit was
not barred by special or general limitation ; that Gangan Kuari died on
the 9th March 1874, and that the suit which was instituted on the 6th
March 1886, was within time from that date ; that as the widow of
Ganesh Prasad had only a life-interest in the six-annas share, it must ba
considered that her life- tenure only was transferred under the deed of sale ;
that no cause of action had accrued to the plaintiff as against the Secre-
tary of State in Council, and that the sum of Rs. 243 was due by the
other defendants to the plaintiff as mesne profits.

The Subordinate Judge decreed the plaintiff's claim for possession of
the share in suit and for Bs. 243 as mesne profits against the defendants
Ramphul and Kashi Prasad, and, exempting the Secretary of State for
India in Council, dismissed the rest of the claim. The defendants preferred
an appeal against this decree, and the District Judge in his decision by
which he disposed of the appeal observed : " Two questions are raised by
this appeal; first [111] that of limitation under s. 20, Act IX of 1859;
second, that of mesne profits. On the first point the appellant's contention
appears to me obviously wrong. The order of confiscation is not on the
record, but ic cannot be assumed that Government intended to confiscate
other than the absolute existing rights of the rebel, and the claim of rever-
sioners or mortgagors, being in no wise affected by such confiscation, they
are not required to come in within the period prescribed in the Act referred
to. S. 20, in my opinion, applies only to persons who claimed present rights
in the confiscated property. There are two rulings which, in my opinion,
support this view : the one Ram Dhun v. Rajah Bhowanee Singh (l) and
the other Bhugwan Doss v. Banee Dalai (2). On the second point very
little has been said and there is in truth nothing to say. The plaintiff,
having established his title, is clearly entitled to mesne profits, and no
reason has been shown for refusing to accept the amount as determined
by the lower Court. I dismiss the appeal with costs and the usual
interest thereon."



(1) N.W.P.H.C.B. 1868, p. 139.



(2) 8.D.A. N.W.P. 1864, vol. ii. p. 220.
69



13 All. 112



INDIAN DECISIONS, NEW SERIES



[YoL



1888 Mr. Kashi Prasad for the defendants-appellants takes before us. in

AUG. 18. second appeal, the plea that the suit is barred by s. 20 of Act IX of 1859,

and, in support of this plea, be cited the ruling of their. Lordships of the

APPEL- Privy Council in Mahomed Bahadur Khan v. The Collector of Bareilly (1).

LATE On the other band, Mr. Ram Prasad, in supporting, on behalf of the

CIVIL, plaintiffs-respondents, the judgments of the lower Courts, refers not only to

the two rulings noticed by the lower appellate Courts but also to a ruling

13 A. 108. of the Privy Council in Gouri Shunker v. The Maharaja of Bulrampore (2).

Taking these three rulings in the order given above, I observe that
the judgment reported in N. W. P. H. C. Kep. 1868, p. 139, is by Morgan,
C. J., and Spankie, J. and is as follows :

" The Principal Sadr Amin's decision cannot be supported. There is
nothing in the records to show that the estate in suit was absolutely
forfeited ; on the contrary, it would appear that only[112] the mortgagee's
rights and interests were confiscated, and that only these rights were
granted to the defendants ; s. 20 of Act IX of 1859 does not apply to fix
the plaintiffs' rights as mortgagors. These rights were not affected by the
confiscation or the grant, which related only to the mortgagee's right.
We decide this upon the present record. But the record itself is in a
very defective condition. Neither the confiscation proceedings nor the
grant is among the papers. The case is remanded for trial. We inform
the Principal Sadr Amin (if he finds that the confiscation and the grant
was confined to the mortgagee's interest) that the limitation of one year
is nob applicable, and that the suib should be heard on the merits.

The judgment reported on page 220 of S. D. A. N. W. P. Eep. for
1864 is by Boberts and Spankie, JJ. The headnote at the foot of the case
referred to is as follows :

" To constitute a bar under s. 20 of Act IX of 1859 there must be on
the part of Government dispossession of the incumbent, or some open act
inconsistent with the pretensions of the holder to put him upon taking
measures to assert his claim."

The ruling of the Privy Council reported in Gouri Shunker v. The
Maharaja of Bulrampore (2) is under a law specially enacted for the
province of Oudh, and therefore, as admitted by Mr. Ram Parsad, it is
not directly applicable to this case. It is, I think, obvious that none of
these three rulings is in point.

Next, as to the ruling relied upon by Mr. Kashi Prasad, and which
is reported in L. B.. 1 I. A., 167, the appeal in this case was from a
judgment of a Bench of this Court, Morgan, C.J., and Boberts, J. That
judgment and the judgment reported in N. W. P. H. C. Bep., 1868,
p. 139, and which is relied upon by the plaintiff-respondent, were both
written by Sir Walter Morgan,. and they are not in conflict.

The headnote of the Privy Council ruling which I have now to
consider is as follows :

[113] "A died, the ostensible owner of certain lands, leaving two
sons under age. Upon A's death B, alleging that he was himself the real
owner of the lands, caused himself to be recorded as owner in the Collector's
books, and took possession. Some years later B was convicted and
executed as a rebel, and all the property in his possession confiscated,
including the land so taken by him.

" The sons of A sued for the recovery of the lands of which they had
been dispossessed by B.



(I) 1 1. A. 167.



(2) 4 C. 839.



70



YII]



RAMPHDL TIWARI V. BADRI NATH



13 All.



" The suit was brought more than a year after the younger plaintiff
came of age and more than a year after the passing of Act IX of 1859,
which allows (s. 20) only one year to sue and does not save the rights of
persons under disability.

" Held, that the enactment applied to all Courts, and that the claim
was barred by limitation "

From what is stated on page 171 it appears that the District Judge
who tried the suit held that " both the plaintiffs had a right in equity ; that
the elder plaintiff was barred by law ; that the younger plaintiff was not
barred ; and the Court decreed the claim of the younger plaintiff less the
share of Bustee Begum, the mother, with costs in proportion."

On appeal to this Court, Morgan, C.J., and Eoberts, .!., in disposing
of the appeal, observed " In the view which we take of the case it is not
necessary that we should consider whether or not the property claimed
really belonged to the plaintiff's father and on his death descended to the
plaintiff. It appears certain that at and previous to the time of the
conviction of Khan Bahadur Khan it was in his possession and under his
control, and that it was seized and confiscated as a portion of his possessions.
If so, the plaintiff's right of suit to recover it is now barred by the operation
of s. 20 of Act IX of 1859. By that section the rights of persons not
charged with the offences therein referred to in respect of any property
seized or forfeited are saved. But such saving is subject to the stringent
proviso in the latter part of the section, whereby all rights of suit in respect
of such property are taken away, unless the suit [114] is instituted within
one year from the seizure. The law being conceived in general terms, the
Courts are not at liberty to introduce into it any exceptions, however just
and reasonable they may appear and however consistent with the principles
on which laws of limitation are ordinarily based. The law in question is
a special law, and this provision was probably designed to promote the
speedy ascertion and adjudication of all rights put forward to forfeited
property. The exceptions in favour of minority and other legal disability
which the general law of limitation of suits (Act XIV of 1859) contains,
have no place in this Act and cannot be introduced by the tribunals, which
are hound to give full effect to the law. Upon this principle the plaintiffs,
notwithstanding that they were minors at the time of the seizure, can
claim no exemption from the operation of s. 20, and assuming the property
sued for to have really belonged to them, yet as it was seized as a part of
the confiscated property of Khan Bahadur Khan, they can now maintain
no suit for its recovery, more than one year having elapsed from the time
of seizure. The appeals Nos. 16, 21 and 25 are decreed and No. 9 is
dismissed, but without costs.

The decision of their Lordships of the Privy Council was pronounced
by Sir Montague Smith, and it contains the following passages:

" The only question in this appeal, which comes before their Lordships
in the shape of a special case, is whether the suit, brought by thb appellants
against the Collector of Bareilly and the purchasers from the Government,
to recover certain landed property in Bareilly, is barred by limitation.

" The Act of Limitation which is relied on by the Government is Act
IX of 1859. That Act was passed for the special purpose of providing a
Court for the adjudication of claims by innocent persons upon the property
of rebels which had been forfeited to the Government. It established a
special Court, consisting of three Commissioners, and suspended the action
of all other Courts in respect of such claims. Special modes of proceeding
are established and various clauses in the Act relate to that special course

71



1888

AUG. 13.

APPEL-
LATE
CIVIL.

13 A. 108.



13 All. 115



INDIAN DECISIONS, NEW SERIES



[Vol.



1888

AUG. 13.

APPEL-
LATE
CIVIL.

13 A. 108.



of procedure. [115] But these are provisions in the Act which relate not
merely to the Court so established and the procedure under it, but are of a
general character and apply to the property forfeited in whatever Court
the claims may be made regarding it. Ss. 17 and 18 are also clauses of a
general nature, and so it appears to their Lordships is s. 20 which contains
the limitation on which the Government rely. The clause is this, ' nothing
in this Act shall be held to affect the rights of parties not charged with
any offence for which, upon conviction, the property of the offender is for-
feited in respecb to any property attached or seized as forfeited or liable
to be forfeited to the Government ; provided that no suit brought by any
party in respect to such property shall be entertained unless it be instituted
within the period of one year from the date of the attachment or seizure of
the property to which the suit relates.'

" It was suggested that this limitation was meant to apply only to
claims prosecuted before the Court of Commissioners established by the
Act, and it was contended that the Act was of a temporary nature, and
that its provisions fell with the purpose for which it was passed. Bub
the Act is not made temporary by any enactment. It was in part repealed
by the general repealing statute of 1868, chat is, Act VIII of 1868, and
the mode of repeal is significant. It is not altogether repealed, for the
general clauses to which I have referred, including s. 20, are saved from
the operation of the repealing Act. The repeal and saving are both found
in the schedule to Act VIII. It is clear from their being thus saved that
these clauses were at that time considered by the Legislature to be of a
general nature affecting claims to property which had been forfeited
before whatever Court those claims might be prosecuted. The words are
perfectly plain. No suit brought by any party in respect of forfeited
property shall be entertained unless it be instituted within the period of a
year from the date of seizure. It is true that this limitation is introduced
by way of proviso. But their Lordships think that, looking at the various
parts of the Act, and gathering the purpose and intention of the Legis-
lature from the whole, this was a substantive enactment, and [H6] that
although it appears under the form of a proviso, it was a limitation intend-
ed by the Legislature to apply to all suits brought by any person in
respect of forfeited property.

"Assuming then that the case is within the Act, their Lordships will
consider the other objections which have been raised. The answer first
put forward was that this limitation could be held only to apply to some
right, title and interest, using the words of the ordinary execution acts of
the rebel himself. Now it is obvious that this cannot be the right con-
struction of the Act. It would be a wholly insensible enactment if it
were, because the Act assumes that the interest of the rebel is forfeited
and it is only in respect of claims other than his that this limitation could
operate. The Act is declared not to affect the rights of the parties in re-
spect of the property seized. The property is the thing seized as forfeited,
whether it be land or a jewel, and the right referred to is the right of sn
innocent party, other than the right of a rebel in that property.

Another contention, which seems to have been the only one urged
in the High Court so far as it appears from the judgment, is that a saving
with respect to parties under disabilities must be taken to be by equitable
construction implied in this clause. Their Lordships, however, think it is
impossible that any Court can add to the statute that which the Legisla-
ture has not done. The limitation is enacted in plain and absolute terms.
The Legislature has not thought fit to extend the period which it has



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 12 of 155)