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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 137 of 155)
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distinguished.

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

Munshi Gobind Prasad, for the appellant.

Mr. Fateh Chand and Munshi Ram Prasad, for the respondent.

JUDGMENT.

TYRRELL, J. The appellant is a judgment-debtor under a decree
held by the respondent which was made under s. 88 of the Transfer of
Property Act on the 14th of September 1887, which was subsequently
amended so as to become a decree against non-hypothecated property, also
personally against the appellant. So far, of course, it was not a good
decree under the section, but the appellant submitted to it and it became
final against him. On the 21st of [335] March 1888, and on the llth of
April 1888, steps were taken by the respondent to bring the hypothecated
property under attachment and sale. The sale took place in November
1889. On the 4th of December 1891 the respondent made an application
for the execution of his decree against the unhpothecated property of the
appellant and this application is the subject of the present appeal. The
Courts below have disallowed the judgment debtor's objection to execution.
That objection is based mainly upon the terms of a judgment of this
Court delivered in Musaheb Zaman Khan v. Inayet-ullah (1). It was
argued here to-day that, according to the law laid down in that judgment,
the decree held by the respondents could not have been made, in so far

Second Appeal, No. 639 of 1892, from a decree of C.L.M. Bales, Esq., District
Judge of Azimgarh, dated the 2nd May 1892, confirming a decree of Babu Jai Lai,
Munsif of Azamgarh, dated the llth March, 1892.

(1) 14 A. 513.

931



15 All. 336



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 as it relates to non-hypothecated property and personal liability, inas-

MAT 16. much as the respondent's cause of action for such relief could not accrue

to him until it was discovered that a decree under s. 88 of Act IV of 1882

APPEL- had not operated to extinguish the entire debt, and it was contended that

LATE the respondent's proper and only remedy was by way of a suit under s. 90

OlVIL ^ ' ne ^ c ^' These propositions of law are unquestionably correct , but

the case before me to-day is in one essential radically different from the

ISA. 334= case before the first Bench mentioned above. The point for determination
13 A.W.N. in that case was that the circumstance that the plaintiff's demand for
(1893) 121. relief against the non-hypothecated property was not decreed could nob
be treated as a decision refusing him that relief and as such barring hia
subsequent suit under s. 90 by virtue of the rule of s. 13 of the Coda
of Oivil Procedure. The decree under s. 88 in iihat case was properly
limited to the property hypothecated in the bond. In the present case
the respondent has obtained a decree which the appellant allowed to
become final against him, which is a decree not merely under s. 88 but
also a decree for relief outside the mortgaged property. There was only
one mode by which that decree could have been rectified. The Court
executing the decree cannot go behind its terms and declare that such and
such terms can be executed while puch and such other terms are based on
errors of law or of procedure and may not be executed. The Court below
[336] is right in holding that it is incumbent on the executing Court to
execute the decree as is stands, the execution not being barred by limi-
tation or otherwise. The appeal is dismissed with costs.

Appeals dismissed.



15 A. 836 = 13 A Y/.N. (1893) 111.

EEVISIONAL CRIMINAL.

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



QUEEN-EMPRESS v. EAGHU TIWARI.* [16th May, 1893.]

Act XLV of 1860, s. 182 False information to a public servant False complaint to the
police.

Where as the result of a police investigation it appears that a complaint made
to the police of the commission of an offence punishable under the Indian Ponal
Code is false, it is not necessary that the complainant should be given any further
opportunity of establishing be truth of his allegations before his prosecution
under s. 182 of the Indian Penal Code ia proceeded with.

[P., 29 A. 587 = 4 A.L.J, 471 (472) = A. WN. (1907) 195 ; R., 33 C. 1 = 2 C.L.J. 228 (230)
= 10 C.W.N. 158 ; 19 A.W.N. (1899) 90.]

THIS was a reference by the Sessions Judge of Ghazipur under e. 438
of the Code of Criminal Procedure, 1882. The facts of the case sufficiently
appear from the judgment of the Court.

The Public Prosecutor (Mr. A. Strachey), for the Crown.

JUDGMENT.

EDGE, C. J. and AIRMAN, J. Raghu on the llth of December gave
information, to the Pojice that one Budhan had committed theft. The
Police inquired into the matter, and came to the conclusion that the
information was false. On the 17th of December 1892, the matter came
before a Magistrate of the first class. On the Police report the Magistrate

* Criminal Revision, No. 161 of 1893,
932



YII] QUEEN- EMPRESS V. BAQHU TIWARI 15 All. 338

directed proceedings to be taken against Raghu under s. 182 of the Indian 1893
Penal Code. On the 19&h of December, a summons was issued against MAY 16,
Eaghu and on the 24fch, was served upon him. The summons called upon
him to appear on the 5th of January 1893, to answer the charge. On REVI-
the 3rd of January, 1893, Raghu presented to the Court of the Magistrate blONAL
a petition, dated the 2nd of January, in which he referred to the complaint CRIMINAL,
made by him and to the proceeding against him under s. 182 of the
Indian Penal Code, and asked that the latter proceeding should stand
over until his complaint had been decided. The Magistrate did not
.[337] comply with the prayer of that petition, but proceeded with the
charge against Rgahu, and having, on the 17th of January, convicted him on
a summary trial of the offence under s. 182, sentenced him to three months'
rigorous imprisonment. Raghu applied to the Sessions Judge of Ghazipur
to revise the order of (she Magistrate of the 17fch of January 1893. The
Sessions Judge requested an explanation on certain points. The Magistrate
sent his explanation. The Sessions Judge put forward his views in reply,
and sent the case to this Courb for us to exercise our powers of revision.
The view of the Sessions Judge is that it was illegal on the part of the
Magistrate to proceed and decide the charge under s. 182 of the Indian
Penal Coda bafore the complaint of Raghu had been adjudicated upon in
accordance with bis application of the 3rd of January 1893. The Sessions
Judge and the Magistrate in their correspondence, and apparently on tbe
invitation of the Sessions Judge, discussed many points which may have been
of interest to them. The cases in this Courb cannot be reconciled. Many of
those cases relate to proceedings under s. 211 of the Indian Penal Code.
Although it is difficult to see what case could arise under s. 211
to which s. 182 could not be applied, yet s. 182 would apply to
a case which might not fall under s. 211. Tbe offence under s. 182 is
complete when false information is given to a public servant by a person
who believes ib to be false, but who intends thereby to cause such public
servant to institute criminal proceedings against a third person. The
oifence is complete although the public servant takes no step towards
the institution of such criminal proceedings. In our opinion it is in such
a case not at ail necessary that the public servant should take any step
whatever on the false information before instituting and prosecuting to a
conclusion a. charge under s. 182 against bbe person who had given such
false information. Assume, as in this case, that inquiries were made on
the false information, and that not only was it shown that the informa-
tion was false, but the corrupt and wicked motive of the informant was
apparent ; in our opinion, it would be absurd that the informant should be
called upon to proceed with a false charge which inquiries had shown to
be false, and that the proceedings against him under s. 182 should be delayed
[338] until the informant, and such witnesses as he might be able to call
in supporb of his complaint, had had afforded to them by the Magistrate
an opportunity of committing the further offence of perjury. We are well
aware that it may be objected that in this view tbe Police are in the first
instance made the judges of whether bhe informant's complaint was true
of false. As the matter would not finally rest with them, and would have
to be determined by a competent Court, some discretion and reliance
may be placed in the Police, and in fact in some cases that discretion is
by law reposed in them. In cases to which s. 211 especially applies, and
in which a criminal proceeding has baen instituted, a Court should, in our
opinion, as a rule proceed to determine such criminal proceeding instituted
in it and should give the person instituting such proceeding, a reasonable

933



IS All. 339



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 opportunity of supporting his case before proceeding against him
MAY 16. for an offence under s. 211. We are unable to ascertain thafe there

is any restriction imposed by the Indian Penal Code or by the Criminal

BEVI- Procedure Code of 3882 upon the prosecution of an offence either under
SIGNAL, s. 182 or 211. It appears to us that it has been left to the discretion of
CRIMINAL. ^ ne Court to determine when and under what circumstances prosecutions
should be proceeded with under ss. 182 and 211. We think that discretion
151. 338= would, as a rule, be rightly exercised by the Court proceeding to dispose
13A.W.N. of the criminal proceeding then pending before it before taking action
(1893) 111. under s. 211 or 182 against the person who had instituted such
criminal proceeding, or on whose information such criminal proceeding had
been instituted. In this particular case the procedure of the Magistrate
was in our opinion entirely regular. We are of opinion that the applica-
tion which was made on the 3rd of January 1893, was filed either, as the
Magistrate thought, merely as a defence, or for the purpose of delay. We
see no reason for interfering wit-h the conviction and sentence. The record
will be returned and a copy of this judgment will be sent to the Magistrate
concerned.



15 A. 339"(P,C.)



20 I. A. 336 = 6 Sar. F.C.J. 313 = 17 Ind. Jur. 42?,

[339] PBIVY COUNCIL;

PRESENT :



Lord Watson, Lord Morris, Sir B. Couch and the Hon. George Denman.
[On appeal from the High Court at Allahabad.]



BALGOBIND DAS (Plaintiff) v. NARAIN LAL AND OTHERS (Defendants').
[10th and 14th March and 28bh April, 1893.]

Hindu LnwMitalcshara Joint Hindu 'family Mortgage Attempt by ons co-f.Jn.re to
mortgage his undivided shT,eon his own account Effective sale of part of such a
share in execution of a d<cree against tlis co-sliarer Intertst allowed on tht mort-
gage debt according to the contract.

Under the Mitakshara, as administered by the High Courts of the North-West
Provinces and Bengal, an undivided share in ancestral estate, held by a member
of a joint family in co-parcenary, cannot be mortgaged by him on his own private
account, without the consent of those who share the j lint estate. An attempted
mortgage by one of them does not create a charge which can have priority over
purchases at execution sales made bona fide, and without notice of it; such
purchasers having acquired the right of compelling the partition which the
debtor might have compelled, bad he been so minded, before the alienation by
the sale of his share.

As to the invalidity of the attempted mortgage, Sadabart Prasad Saliu v. Fool-
bash Koer (1), referred to, and approved. As to the right of the purchaser of the
share at a judicial sale, Deen Dyal v. Jugdeep Narain Singh (2), followed, arid
reference made to the distinction, mentioned in the latter case, between a
voluntary alienation without such consent, and an involuntary one aa the result
of the execution of a decree against the co-paroener, and a judicial sale there-
under.

A father and son composed a joint fami'y, holding a share of ancestral lands.
The son mortgaged to a banker, to secure a loan, his interest in the undivided
share. His father, without having notice of the mortgage, purchased in good
faith, portions of the estata forming part of the son's joint share, at sales in
execution of decrees against the latter, obtained by his creditors.

Held, that the son's interest in the portions so sold, passed to the father, whose
rights therein as purchaser at the judicial sales were not affected by the mortgage,



(1) 3 B.L.R.P.B. 31,



(2) 4 LA. 247 = 30, 198,



934



YII] BALGOBIND DAS V. NABAIN LAL 13 All. 341



The mortgqgfX' could, in execution of a money decree, which he might obtain 1895

against the mortgagor, personally attach and bring to a judicial sale such parts

of the mortgaged property aa had not already been sold, but not iu virtue of the APSI '

mortgage.

Inteiest on the money lent was contracted to be payable, '' even if a suit
should b" instituted " at the rate fixed for the period for which the money was COUNCIL.
lent. II, hi. that interest must be decreed at this rate, according to tbe contract,
down to the institution of the suit. 15 A 329

[P., 31 A. 507 '510 =6 A L J. 762;ppr,, 20 A. 325 ; R., 31 A. 176 = 6 A.L.J- < P -C.) =

(F B > ; 263 0^9 =1 Ind. Cap. 479 (491) J 33 A. 783 (788) ; 8 A.L.J. 901 = 11 20 I. A. 116=i
Ind. CV. 2v!0 ; 35 M. 47 (6'2)=9 Ind. Caa. 596 = 21 ML J. 246 = 9 M.L.T. 369 6Sar=P.C J.
= -i M W.N, (1911), '288; 6. A.L J, 11 = A.W.N. (1908), 163; 12C.P.L.R.63 (65) ; 313 = 17 i n( i
1 In Stl ; 11 Ind. C*s. 291 (294) ; II Ind. D^. 654 6'.8) : 11 Ind. T '

Ga?. S9J 89^) ; 13 Ind. GAS. 466 (467) = 14 0.0. 295 ; 10 00. 289 (-291).] Jur< * 9t

[340] APPK \L from a judgment and decree (13bh February, 1889) of
the High Court, affirming, with a variation as to the amount of interest
allowed, a decree (4ob February, 1887) of the Subordinate Judge of Benares.

No fact; was \n dispute on this appeal, which related to an attempted
mortgage of the ri^ht and interest in joint ancestral estate by a co-sharer,
and the distinction between voluntary and compulsory alienations by him,
the latter being sales in execution of decrees against him.

The suit was brought, by the appellant Balgobind Das, a banker in
Benares, who, between 1873 and 1879, had lent money, from time to time,
to the first defendant, now the resoondent, Narain Lil, who was joint in
estate with his father, Naunidh Lai, the third defendant, now respondent.
The question raised was whether a simple mortgage by a member of a
joint Hindu family, for his own private debt, of his share in the ancestral
estates, created a valid charge agaiosb purchasers of parts of the same share
sold in execution of decrees against him. Some of the ancestral estate,
forming portions mentioned in the first schedule of the plaint, had been
sold before tha date when the mortgage was made, so that there was no
doubt that they were nob affected by the mortgage The question was as
to other parts sold in execution of decrees against Narain Lai, to bona fide
purchasers, after the date of the mortgage, but without notice or their
knowledge of it. As to this property, mentioned in a second schedule,
the question was whether the mortgage was effective against the claim
under the judicial sales, or whether the purchasers under the latter, tha
principal of whom was Naunidh Lai, father of Narain Lai, had acquired
such a right that their title was valid, notwithstanding the prior mortgage.

Tha family property consisted of an eight-anna share of land and
houses situa r e in the districts of Benares, Patna, Tirhut, Sarun, Motihari,
Hajipur, ChHmparan, Gaya, Monghyr and Muzctffarpur, and the father and
son, who wm-e under the Mitakshara, had each a four-anna share in the
undivided estate. On the 27th November, 1879, Narain Lai executed
a bond, wi f h a mortgage of his four [351] anna share to the plaintiff,
Balgobind Das, to secure a debt of Bs. 93,000 which with interest at
Re. 1-8 a mouth, or eighteen per cent., he bound himself to pay within
two years. The monev not having been paid, this suit was brought on
the 12th of February, 1886, for a decree " enforcing the hypothecation, "
and ordering a sale, and also payment of the debt by Narain Lai personally.
The total amount claimed was Bs. 2,01,484, consisting of Bs. 93,000 princi-
pal, and BH. 1,08,484, interest. With Narain Lai were joined two other
defendants, who Iwl purchased at execution sales held after the date of
the morgage, the right, title and interest of Narain Lai in parts of tha
property. They alleged for their defence, amongst other things, that

935



13 All. 342 INDIAN DECISIONS, NEW SERIES

1893 Narain Lai, as one member of the joint Hindu family, was not entitled'to

APBIL 28, mortgage his undivided share in the joint family property. In consequence

of this, the plaintiff applied to have Naunidh Lai, the father, till then not

PRIVY a party, added as a defendant. This was ordered by the Subordinate Judge

COUNCIL, on the 24th of September. 1886. Naunidh's defence was that, he and his

son being each entitled to a one-half share, and no partition, separation or

13 A. 339 specification of their shares having taken place, the son had uot been
(P.C.)= competent to mortgage his share without his, Naunidh's, consent.
6 S P^cfr ^k Subordinate Judge found that the mortgage had been executed
313 = 17 an( ^ ^ a fc ^ ne mon0v was due. O Q ^ ne question as to the right; of Narain
, ~ . ' Lai to mortgage, he applied the rule, citing Sadabart Praahad Sahu v.
Foolbash Koer (l),.and Rama Nand Singh v. Gobind Singh (2), that one
member of a joint undivided family could not mortgage or sell his share
without the consent, express or implied, of bis co-parceners. In this case,
he saw no reason why the obtaining a share of one of the members by
another, as the result of causes beyond the control of the former (for inst-
ance, as the result of a judicial sale), should change the character of the
remainder of the estate, rendering the co-proprietors separate as to their
respective shares. He decreed the claim personally against Narain Lai for
the money, with interest at the rate agreed upon only down to the day
fixed for the repayment of the principal.

[3$2]The two questions before the High Court (SlR JOHN EDGK, C.J.,
and TYRRELL, J.) were, according to the judgment given on the plaintiff's
appeal, first, whether the mortgage- deed of the 27th of November, 1879
effected what it professed, namely, to mortgage the property : secondly,
whether the Subordinate Judge was right in disallowing the interest after
the date fixed for repayment of the principal. The High Court, on the
first point, held, with the Court below, that the deed did not operate so as
to effect the property as a mortgage of it. They added that it bad been
argued before them that defendants, the auction-purchasers took under
Narain Lai, and therefore could not be heard to say that he, as a member
of a joint Hindu family, with only aright unexercised by him to demand
a partition, was without the power, consequently, to mortgage. In one
sense, no doubt, auction-purchasers did take under the judgment-debtor,
but, in another sense, they took adversely to him. In an auction sale in
execution of decree the purchaser did not take by a voluntary conveyance ;
on the contrary, he took by operation of the decree obtained against the
judgment-debtor. The Judges therefore held, in concurrence with the
Subordinate Judge, that it was open to the auction-purchaser in this case
to rely on the invalidity of the mortgage attempted by Narain Lai. and
that the decree must be in favour of bin father Naunidh Lai as such pur-
chaser, in good faith, and without notice.

On the second point, they were of opinion that it was not the intention
of the parties that interest should be payable on the debt beyond the date
fixed for repayment, at the same rate as that charged down to that date.
They fixed five per cent, from that date down to the institution of the
suit.

Mr. T. H. Cowie, Q. 0., and Mr. J H.A. Branson, for tha appellant,
argued that Narain Lai's mortgage, of the year 1879, effected a valid
charge upon the share which he held comprising the property in the deed
mentioned. The question was, as had been stated by fcbe first Court,
whether the mortgagor was competent to mortgage his share without his

(1) 3 B.L.R. (P.B.) 31. (2) 5 A. 384.

936



YII] BALGQBIND DAS V. NARAIN LAL 15 All. 344

father's consent, and whether purchasers, in good faith, at judicial sales of 1893
part of the property [343] subject to the son's undivided interest, had APRIL 28.
obtained a title superior to the charge which the son had attempted to
make before the sale to them. No doubt a course of decisions, in the PRIVY
North-Western Provinces and Bengal, bad established the principle that COUNCIL,
o long as family estate was undivided, the one co-parcener had no power
o transfer his share without the consent of the other. They referred to 1S 8J
Appovierv. Rama Subba Aiyan (l), Sadabart Parshad Sahu v. Foolbash P -C.) =
Koer (2), Snraj Bunsi Eoerv. Sheo Proshad Singh (3), Chunderkanth Roy
v. Bam Ruttun Ghosal (4), [Sis E. COUCH referred to Madho Parshad v. 6 Sar PlC J
Mehrban Singh (5).] 813 ~ 17 Indl

The inability of a co-parcener to mortgage was the result of his not or
being entitled to any specific, or defined, part of the joint property, he
being, till partition, entitled only to an interest in the whole joint estate,
and not to an ascertained part of it. His interest also was subject to the right
of survivorship in others. But on the other hand, each co-parcener could
claim to have a partition ; the right of partition which the purchaser at
an execution sale under a decree against the co-parcener could claim to
workout; and the son, in his father's lifetime, could insist upon having
his share. Here, inasmuch as the son, Narain Lai, had an interest
ascertainable by his own act, there was a right in him on which the
mortgage could operate. The right to insist on a partition had been
applied to the purpose of obtaining satisfaction of decrees, and should be
held available to the mortgagee, who was prior in time. What should be
the operation of the mortgage was expressed in Act IV of 1882, section
58, sub-section 6, showing the nature of the simple mortgage, (as it was
formerly as well as now), viz. : the mortgagor, without delivering posses-
sion of the mortgaged property, bound himself personally to pay the
mortgage money and agreed, expressly or impliedly, that in the event of his
failing to pay according to his contract, the mortgagee should have the
right to cause tha property to be sold, and that the proceeds should be
applied, so far as might be necessary, in payment of the mortgage money.
[344] They referred to :

Ganraj Dubey v.Sheozore Singh (6), ChamailiEuarv.Ram Prasad (7),
Rama Nand Singh v. Gobind Singh (8), Madho Parshad v. Mehrban
Singh (5), and argued that the right to call for a partition was capable of
being transferred. They referred to Suraj Bunsi Koer v. Sheo Prashad
Singh (3) Mussumat Phoolbas Koonwar v. Lala Jogeshur Sahoy (9),
Deendyal Lai v. Jugdeep Narain Singh (10). Part of the judgment in
Mahabeer Persad v. Ramyad Singh (11), showed that, as between alienor
and alienee of an interest in joint property, there were equities which
might be dealt with so as to become equivalent to an alienation. There
bad been no dissent expressed by this committee from the decision in
Sadabart's case, but there had hardly been any such complete affirmation
of it as to cover the present one. Their contention now was that there
was no veal and practical distinction between the rights of a purchaser
at an execution sale to insist on a partition of che share of the judgment-



al 11 M.A. 75. (2) 3 B.L.R (F.B.) 31.

(3) 6 I. A. 88 = 5 C. 348. (4) 2 S.D.A. 1660 (Bengal) 265.

(5) 17 I. A. 194=18. C. 157. (6) 2 A. 898.

(7) 2 A. 267. (8) 5 A. 384.

(9) 3 I.A. 7 = 1 0.226. (10) 4 LA. 247

(11) 12 B.L.R. 90.

937
A VII 118



15 All. 345 INDIAN DECISIONS, NEW SERIES [Yol.

1893 debtor, on the one hand, and on the other, the rights of a purchaser under

APRIL i28. a voluntary alienation, such as this mortgage ; where the share alienated

was capable of being, as was the case here, sufficiently defined. A charge

PRIVY had here been created in the undivided fourth share which gave themorfc-

COUNCIL. gagee a prior right. They referred to the difference between the law laid

down in the decisions of the High Courts of Madras and Bombav, on the



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 137 of 155)