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declarations of the defendants' father, from which he at once receded
before he had put it out of his power to do so by divesting himself
of the property. On behalf of the respondent we have beard the learned
Government pleader who failed to show us any authority, either of
Muhammadan law or of case-law, in support of his proposition, which is
practically the law as laid down by Abu Yusuf. He referred us to Baillie
on Muhammadan law, p. 552, from which he tried to show that all the
essential conditions of a waqf are fulfilled in this case, and he also pointed
to a judgment reported in 16 Weekly Reporter at p. 116 (Doyal Chund
Mullick v. Syud Keramut Ali). We do not find in the 1st Ohapter of the
9th book of Baillie on Muhammadan law any authority against the con-
tention which we have stated above on behalf of the appellant, and the
judgment in Doyal Chund Mullick v. Syud Keramut Aii was made with
reference to Shia and not to Sunni Muhammadans. The learned Judge
of Moradabad decreed the case against both the defendants. One con-
fessed judgment, and the other, Muhammad Aziz-ud-din Ahmad Khan,
alone appealed. We allow his appeal, and set aside the decree of the
Court below so far as he is concerned, and decree his appeal with costs of
both Courts.

Appeal decreed.

15 A. 324 = 13 A.W.N. (1893) 140.

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

BALWANT BAG (Plaintift} v. MUHAMMAD HUSAIN (Defendant).*

[9th May, 1893.]

Civil Procedure Code, s. 4.11 Sala of property for purpose of realizing Court fees
erroneously supposed to be due to Government Suck order ultra vires and no neces-
sity to bring a suit to set it aside Jurisdiction,

An order for sale and a sale under such order aro ulta vires and nullities when
JD fact there was no jurisdiction in the Court to make the order. Bam Loll
Moitra v. Bama Suniari Dabia il) referred to.

[P., 16 A. 5 (9) ; R., 19 A. 308 (309) ; 26 A. 346 = 1 A.LJ. 53 = A.W.N. (1904) 35 ;
163 P.L.R. 1901.]

[325] THE facts of this case are fully stated in the judgment of the

Pandit Sundar Lai, for the appellant.

Babu Joqindro Nath Chaudhri, for the respondent.

* Second Appeal No. 82 of 1891 from a decree of A. B. Patterson, Esq., Commis-
sioner of Jhansi, dated the llth October 1890, reversing a decree of Babu Baldeo Prasad
Deputy Commissioner of Jhansi, dated the 18th April 1890.

(1) 12 0. 307.




15 All. 326


EDGE, C.J. and AIKMAN, J. This appeal has arisen in a suit brought
by a usufructuary mortgagee for possession. The suit was brought against
Narain Sakha Bam the mortgagor and Muhammad Husain. Narain
Sakha Earn in 1883 presented an application to the Deputy Commissioner
of Jhansi for leave to sue as a pauper. He sought to get a decree for
possession of property which included that in the present suit. Narain
Sakha Eam's application to sue as a pauper was rejected. In 1884 Narain
Sakha Earn brought a regular suit on the full Court-fee to recover the
property which he had sought to sue for as a pauper. That suit was
brought in the Court of the Deputy Commissioner. The Deputy Commis-
sioner dismissed the suit. Narain Sakha Earn appealed to the Commis-
sioner of Jhansi in forma pauperis. The Commissioner set aside the
decree of the Deputy Commissioner, and remanded the suit under s. 562
of the Code of Civil Procedure. On the remand the Deputy Commissioner
decreed the claim. The defendant in that suit appealed and the Commis-
sioner of Jhansi modified the decree of the Deputy Commissioner by
decreeing Narain Sakha Eam's claim in respect of one hundred bighas
only. At the foot of the decree of the Deputy Commissioner on the
remand, there was an entry that Es. 404 were due to Government as Court-
fees, and still more curious was the fact that Narain Sakha Earn was
described in the decree as a pauper plaintiff. The decree of the Commis-
sioner made no reference to any Court-fees due to Government. In fact
none were due. The suit in which the decrees were made was a suit
instituted on a full Court-fee stamp. The order in the appeal of
Narain Sakha Earn having been made under s. 562 of the Code of Civil
Procedure no fees remained payable by Narain Sakha Earn to Govern-
ment. If he had appealed on a full Court-fee it would under s. 13 of
the Court Fees Act of 1870 have become repayable to Narain Sakha
Earn. The trial of the suit on remand had to take place on the [326]
original Court-fee, which had been paid. There was when the final
decree was made not one farthing due to Government by Narain Sakha
Ef\m. Some Government pleader, being of a different opinion apparently
applied to the Assistant Commissioner for an order to sell Narain Sakha
Eam's hundred bighas which he had obtained by his decree in satisfaction
of the Es. 404 (four hundred and four) alleged to be due as Court-fees.
The Assistant Commissioner made an order, the property was sold and
was purchased by Muhammad Husain, the second defendant here, a pleader,
who had been concerned for one of the parties in the litigation. The case
stands thus. There was no first charge in resoecb Of Court-fees under
s. 411 of the Code of Civil Procedure on the land. Narain Sakha Earn,
then plaintiff, had not sued as a pauper, there were no Court-fees due to
Government to be calculated and there were no Court-fees that the Govern-
ment could seek to recover by sale or otherwise. There was consequent-
ly no jurisdiction in any Court to make an order of sale. Further, and
in any event, the Assistant Commissioner had no jurisdiction to make any
order as to sale. His was not the Court which had jurisdictiou to try the
suit and the suit had not been brought in his Oourt. The order for sale
was from every point of view ultra vires. The mortgage to the present
plaintiff was made on the 25th of October, 1885. The first Court
decreerl the claim in this suit, the second Court dismissed the suit on
the ground that the plaintiff here had not asked for a decree setting aside
the sale, and also on the view that s. 411 of the Code of Civil Pro-
cedure applied. The plaintiff brought this appeal. The sale having



MAY 9.


IB A. 324-
13 A.WH.
(1893) 110.

15 All. 327


1893 been made under an order, which, having been made absolutely

MAY 9. without jurisdiction, was, as against Narain Sakha Bam and his mort-

gagee who had taken an interest prior to the sale, absolutely void,

APPEL- there was no necessity to ask as a relief in this suit that the sale should

LATE be set aside. We are confirmed in that view by the decision in Ram Lai

OlVIL Moitra v. Bama Sundari Dabia (l). Further if it was necessary as part

- of the decree in this suit to set aside the sale, the plaintiff here would

13 A. 324= have been entitled to that relief as subsidiary to the main relief he asked

IS A.W.N. for in the suit. [327] However, it was not necessary to ask for any such

(1893) 140, relief. We cannot understand the conduct of Muhammad Hussain, pleader.

We agree with the first Court that, being the pleader of Narain Sakha

Earn, he must have known at the time he purchased of the mortgage to

the present plaintiff. We are asked on behalf of the respondent to refer an

issue as to the title of Narain Sakha Ram, to grant the mortgage. Narain

Sakha Earn cannot dispute his own title to grant the mortgage, he is

estopped. Muhammad Husain took no interest under the sale which was

void. If he took any interest at all, he would have to stand in the shoes

of Narain Sakha Earn. It is unnecessary to make any reference. We

decree the appeal with costs in this Court and the lower appellate Court

and restore and confirm the decree of the first Court.

Appeal decreed.

ISA. 327 = 13 A.W.N. (1893) 110.


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

PHUNDO (Defendant] v. JANGI NATH AND OTHERS (Plaintiffs) .*
[10th May, 1893.]

Civil Procedure Code, s. 13 Res judicata Soundness in law of previous decision
immaterial Hindu law Adoption Baqqals.

Where a judicial decision pleaded as constituting res judicata, in all other
respects fulfils the requirements of s. 13 of the Code of Civil Procedure, and no
appeal has been preferred against it within limitation, it is immaterial whether
such decision is or is not sound law. Parthataradi Ayyangar v. Chinnakrishna
Ayyangar (2) dissented from.

Semble that Baqqals do not belong to the regenerate classes, and therefore the
rule of law which forbids a Hindu to adopt a boy whose mother he could not
have married, does not apply to them.

[P., 19 Ind. Gas. 244 (245) ; R., 28 C. 318 (323) ; 11 O.L J. 461 (471) = 6 Ind. Gas.
554 (559) ; 14 C P.L.R. 109 (110) ; 1 C.W.N. 637 (690) ; 5 O.C. 181 (182) ; 8 0.0.
37 (43) ; 9 O.C. 243 (245) , 57 P.R. 1907 lF B.) = 66 P.W.R. 1907 ; 44 P.R. 1908 ;
D., 32 C. 849 = 1 O.L.J. 476 = 9 C W.N. 466.]

THE facts of this case are as follows :

On the 13th of February, 1876, one Bhika Mai, who was the step-
brother of the defendant-appellant's, Musammat Phundo's, deceased
husband, Dwarka Das, mortgaged certain houses to one Baij Nath, the
father of the plaintiffs-respondents, alleging that he was the adopted son

First Appeal, No. 83 of 1891, from a decree of Babu Abinaah Chandra Binerji,
Judge of the Court of Small Causes (exercising the powers of a Subordinate Judge) of
Agra, dated the 26th March, 1891.

(1) 12 0. 307. (2) 5 M. 304.




15 All. 329

of the said step-brother. On the 18th of July 1882, Baij Nath brought a
suifc upon that mortgage against Bhika [328] Mai and Musammat Phundo,
to recover the sum of Bs. 18,019 from Bhika Mai personally and from
the mortgaged property. In that suit Musammat Phundo pleaded that
" Bhika Mai was neither the adopted son of Dwarka Das nor did he live
jointly with him." An issue was framed on this plea and the Court
recorded a finding to the following effect : " The evidence of Mutto Misr
and Kanhia Lai, witnesses Nos. 9 and 10 for the plaintiff, tends to show
that Bhika Mai, step-brother of Dwarka Das, was adopted by the latter
as his son according to the rites prescribed by Hindu law. The pleader
for Musammat Phundo could not cite any texts of Hindu Law or authority
to'show that the adoption by a Hindu of his step-brother by a different
mother is illegal. The adoption of Bhika Mai by Dwarka Das was,
therefore, valid according to the Sbastars," the Subordinate Judge then
went on to say-: " The evidence aforesaid shows that the relatives near
and distant of Dwarka Das and Bhika Mai, all took the latter to be the
legally-adopted son of the former," and again : " The weight of reliable
evidence, then, establishes to moral certainty that Bhika Mai has for
more than 20 years past been in possession of the estate of his step-
brother, Dwarka Das, as his adopted son, without any protest or demur
on the part of his wfdow or their relatives ; that such possession of his
was adverse against her, and that she has lost all right to the estate of
her late 'husband by reason of the operation of s. 28 of the Limita-
tion Act."

From the decree in that suit Musammat Phundo did not appeal,
and it became final as against her. Baij Nath executed the decree which
he obtained against the hypothecated property, and, the sale proceeds of
that property proving insufficient to satisfy the decree, proceeded to attach
other property of Bhika Mai's which was not hypothecated. Musammat
Phundo filed an objection to this attachment, that the property was her's,
inherited from her husband, and that objection was allowed and the
property released.

On the 19th of May 1885, the decree-holder, Baij Nath. brought
the present suit for a declaration that the property released from
attachment as above-mentioned was the property of Bhika Mai, as
[329] adopted son and heir of Dwarka Das, and that it did not belong
to Musammat Phundo. To this suit both Bhika Mai and Musammat
Phundo were made defendants. The Subordinate Judge, holding that
the suit was barred by reason of s. 244 of the Code of Civil Procedure,
dismissed it in limine, but that decision was reversed by the High Court,
and the case remanded for trial on the merits.

The Subordinate Judge before whom the case came on remand re-
framed the issue and on the finding that the main issue in the suit on
which all the other depended, namely, that of the adoption of Bhika Mai,
was res judicata, decreed the plaintiff's claim with costs.

The defendant, Musammat Phundo, appealed to the High Court.

Mr. D. Banerji, for the appellant.

Pandit Sundar Lai, for the respondents.


TYRRELL and BLAIR, JJ. This was a suit brought by the respond-
ents under s. 283 of the Code of Civil Procedure, in respect of an order
made by a Court in execution-proceedings raising an attachment in favour
of Musammat Phundo. The Court below decreed the plaintiff's claim,



MAY 10.


13 A. a27 =
13 A.W.N.
(1893) 110.

15 All. 330



1893 and Musammat Phundo appeals. The suit of the plaintiff's succeeded upon

MAY 10. & finding that Musammat Phundo's only plea had been concluded by the

^ decree in a former suit between the parties, and that the question she now

APPEL- seeks to raise against the legal possibility of one Bhika Mai having been

LATE adopted by bis half-brother Dwarka Das, falls under the disability of

OlVIL 8> -^ * * ne Code of Civil Procedure. It cannot be denied that this very

question was tried and decided against Musammat Phundo in the previous

15 A. 327= suit. It was then found that, inasmuch as Dwarka Das could have
13 A.W.N. married the mother of Bhika Mai before she made the marriage of which
(1893) 110. Bhika Mai was the issue, there was no legal bar to the adoption. It
was further found that the adoption was operative, and had been
recognised with the result of the exclusion of Mussamat Phundo
from all title in and possession of her father Dwarka Das estate, for
much more than 12 years. The Subordinate [330] Judge therefore
held that Musammat Phundo's mouth was closed in -the present suit
on the question of Bhika Mai's adoption, and overruled' her claim to
be the heiress of her father, Dwarka Das, in lieu of Bhika Mai, who,
if her case could be proved, would be a stranger to the inheritance.
Musammat Phundo has brought this appeal, and her learned counsel
contends, on the strength of the ruling of the Madras High Court inParthasa-
radi Ayyangar v. Chinnakrishna Ayyangar, (1) that the decree in the
former suit is no bar to the trial in this suit of the issue of the legality of
Bhika Mai's adoption. We are satisfied that the rule of s. 13 of Act
No. XIV of 1882, forbids the re- opening of this question, which was a
matter in issue decided directly in the former suit between the parties.
We have no doubt, that the former decretal finding on the legal point,
though ever so erroneous, would be binding on parties who did not get rid
of it by appeal. But, assuming for argument's sake that the legal issue
on the alleged invalidity absolute of the adoption is open to determination
in this suit, we should still see no reason for coming to a different conclu-
sion upon this point from that which was reached in the former trial.
The rule relied on in favour cf the appellant which is to be found in
paragraph 118 of Mayne's Hindu Law, edition 1883, does not apply in
our opinion to the unregenerate classes, amongst whom, according to the
authorities cited in that paragraph, the adoption of Bhika Mai by Dwarka
Das would not have been forbidden, Dwarka Das and Bhika Mai belong-
ing to a family of " Baqqals." The appeal fails and is dismissed with

Appeal dismissed.

15 A. 331 = 13 A.W.N. (1893) 120.


Before Mr. Justice Burkitt.


(Judgment-debtor)* [10th May, 1893.]
Act IV cf 1882, s. 90 Meaning of the term ''legally reccverable."

A decree-holder having obtained separate decrees against his judgment-debtor
on two unregistered bonds each for a sum of less than Rs. 100, hypothecating

* Second Appeal, No. 380 of 1892, from a decree of P.O. Wheeler, Esq., District
Judpe of Jaurpur, datpd the 18th December 1891, confirming a decree of Maulvi
Annad-nl-lab. Murtit of Mariahu, datrd tbp 21p(. March 1891.

(1) f) M. 304.




15 All. 332

one and the game property, took out execution on one bond and brought to sale
tbe hypothecated property, which was purchased by a third party. The sum for
v-hich that property was sold was only sufficient to satisfy one decree ; and the
decree-holder accordingly, within three years from the date when the latter of
the two bonds fell due, applied for a decree under s. 90 of the Transfer of Property

Held that under the above circumstances there was a balance legally recover-
able otherwipe tban out of the property sold and that the decree-holder was
therefore entitled to a decree under s. 90. Musaheb Zaman Khan \ . Inayatullah(l)
referred to.

[Appr., 6 O.C. 30 (32) ; R., 20 A. 386 (388) ; 19 A.W.N. 72 ; 1 Ind. Gas. 799 (800);
D., 31 A, 373 (377) = 6 A.L.J. 451'; 19 A.W.N. 208 (209).]

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

Munsbi Jwala Prasad, for the appellant.
Maulvi Ghulam Mujtaba, for the respondent.


BUKKITT, J. In this case it appears that tbe decree-holder, appel-
lant, Bageshri Dial had obtained from the judgment-debtor, respondent,
Syed Muhammad Naqi, two unregistered bonds each for a sum of money
under Ra. 100, hypothecating one and the same property as security for
the loans. The mortgagee instituted suits on both the bonds and on
each obtained a decree directing tbe sale of the hypothecated property in
default of payment of the sum due. Execution was taken out on one
decree and the property was sold and purchased by a party other than
the decree-holder. The purchase money was found sufficient to satisfy
one only of the decrees.' The decree-holder now comes to Court and,
alleging that there is no mortgaged property left from which he can
recover the debt due on the decree now under execution, asks for a
decree under s. 90 of the Transfer of Property Act. For certain reasons
which it is unnecessary here to discuss further, the District Judge has
[332] refused the application. As to the decision of the District Judge,
I may britfly say the great distinction between the case he cites and the
present case is, that in the former the decree-holder was the purchaser.
Such is not the case here. In s. 90 of the transfer of Property Act the
conditions on which a decree under that section can be passed is that the
balance sought to be recovered by that decree is one legally recoverable
from tbe judgment-debter otherwise than out of the property sold. Those
words "legally recoverable," have been considered by this Court in the
case of Musaheb Zaman Khan v. Inayat-ullah (1), and are interpreted to
mean "that tbe balance must be a balance which tbe mortgagee is not pre-
cluded by the terms of the mortgage from realizing otherwise than out of
the property sold, or a balance the recovery of which is not barred by limi-
tation, e.g., the suit might have been brought at a period of time when,
if the plaintiff was relying on his personal remedy against the defendant
his suit for the personal remedy would be barred by time, although within
time as a suit for sale on the mortgage."

Now, applying the above ruling to the present case, I have got to
see whether the appellant's personal remedy against the judgment-debtor
was baried at the time the suit was instituted. The facts are these: the
bond sued on was dated the 25th of September 1885, and being payable
after four months it became due on the 24th of January 1886. The suit




15 A. 381 =
13 A.W.N.
(893) 120,

A VII 117

(1 HA. 513.

15 All. 333




MAY 10.


IS A 331 =
13 A.W N.
(1893) 120.

was instituted on the 19fch of January 1889, and as that date is less than
three years after the due data of the bond, it follows that on that date the
plaintiff's, now decree-holder's, personal remedy, as explainel in the case
cited above, was nob barred as against the defendant, now judgment-debtor.
That being so, I hold that the amount, a decree for which is now sought,
is legally recoverable from the respondent otherwise than out of the pro-
perty sold. It follows therefore, that the appellant is entitled to the
decree for which he ask?. I accordingly allow the anp^al I set aside the
order of the lower Courts, and I give the aonellant, d^orne- holder, a decree
as provided by s. 90 of the Transfer of Property [333] Act against the
person and property of the judgment-debtor, other tban that sold. Tue
appellant is entitled to the costs of all three Courts.

Appeal decreed.

15 A. 333 = 13 A.W.N. (1893) 110.

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

(Plaintiffs)* [13th May, 1893.]

Costs Second appeal Exercise, tf discretion o/ Ccurt as to rp'0rtiwme-?t o! costs,

An appeal as to cists will lie from an appellate decree when the Chnrt hag exer-
cised itsdis'-retion an to coqta arbitrarily, and not aocnrlinR tn ppnoral principles.
Kho-ida Buksh v. Elahee Buksh (1) and Assa Ram v. Ka&hnieereeDiss i2< followed.

IF., A.W.N. (1905) 75 ; 4 C.W.N. 90 (91) ; 7 G.W.N. 647 (619) ; R., 6 0.0. 52 (57).]

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

Pandit Moti Lal t for the appellants.
Munsi Gobind Prasad, for the respondent.


EDGE, C.J. and ATKMAN, J. This appeal which is from an appellate
decree, relates to costs. It is urged on behalf of the respondent that no
such appeal lies under s. 584 of the Code of Civil Procedure. That pro-
position is too broad. No doubt Civil Courts have full discretion as to
costs, but that discretion must be exercised according to general principles
and not arbitrarily. That is the effect of what was decMei by the Fall
Bench of the Sadr Diwani Adalat of these provinces, 1861, in the case
of Khooda Buksh v. Elahee Buksh (l) and by the Full of this Court
in 1867 in the case of Assa Bam v. Kashmeeree Dass (2). The Munsif in
the present case had decreed the plaintiffs' claim but having rightly found
that the plaintiffs were responsible for the litigation by reason of their
refusal to produce certificates to collect deb^s, or other documents showing
that they alone of the representatives of [334] the original mortgagees
were entitled to give a discharge for the debts, madw highly equitable

* Second Appeal, No. 89 of 1891, from a decree of Maulvi Akbar Husain Khan,
Subordinate Judge of Cawnpore, dated the 30th September 1890, modifying a decree of
Babu Banke Behari Lai, Munsif of Haveli, dated the 28lh June JH: 0,

(1) 8.D.A.N W.P. 1869, Vol. I, p. 235.

(2) Agra (F.B.J 90.



15 All. 335

order as to costs. The lower appellate Court interfered with that order
on what we consider untenable grounds. We allow this appeal, with
costs in this Court and in the lower appellate Court as far as Daulat Ram
is concerned, and vary the decree of the lower appellate Court as to
costs by reinstating that portion of the decree of the first Court which
relates to costs.

Appeal decreed.

15 A. 334 = 13 A.V/.N. (1898) 121,

Before Mr. Justice Tyrrell..


MAY 13.


13 A. 333 =
13 A W N.
(1893) 110.

LALJI LAL (Judgment- debtor) v. C. J. BARBER (Decree-holder).*
[16th May, 1893.]

Execution of decree Court executing decree not competent to go behind its terms Act IV
of 188-2, ss. 88, 90.

Where a decree cm a hypothecation bond besides decreeing sale of the hypothe-
cated property purported also to grant relief over against the person and non-
hypothecated property of the judgment-debtor and such decree remaining
unchallenged became final in its entirety.

Held that it was competent to the decree-holder by application for execution of
the decree to proceed against the ncn-hypotheoated property of his judgment-
debtor and it was not necessary for him to apply to the Court for a decree undec
8. 90 of the Transfer of Property Act. llusalieb Zaman Khan v. Inayat ullah (1)

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 136 of 155)