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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 138 of 155)
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151. 339 one hand, and the decisions in Bengal and the North- Western Provinces,

(P.O. = on fch e other, and that part of the judgment in Suraj Bunsi Koer v. Sheo

20 I. A, 116= Proshad Singh (1), which related to this subject.

6 Sar. P.O. J. M r> /_ j) t Mayne, for the respondent, Naunidh Lai, argued that accord-
818 = 17 Ind. log to the law administered in the North- Western Provinces, the mort-
Jur. 423. gage was ineffectual to charge any parb of the share of Narain Li I on the
joint estate. In a long course of [345] decisions in the S.D.A., and in the
High Court, it had been held that a co-parcener could not alone alienate
his share. Such a share only became alienable when a specific part of the
property to which it related had been defined as belonging to it. Its ascer-
tainment resulted in the case of execution of a decree against a co-parcener,
by his right to a partition being worked out. It had been part of the law
of procedure atone time that the right, title and interest; of a judgment-
debtor could bo attached, though later legislation had not been in the same
terms as to this. [SlR E.COUCH inquired if this expression had been broaght
into the Code (VIII of 1859), from any of the earlier Acts or Regulations.]
This might have been introduced from the earlier practice, before 1859,
but it was not known if it appeared in any of tbre Regulations. Since
1882 what was sold under the Procedure Code was the estate of the
judgment-debtor, and it was for the appellant to establish that, by some
means or other, the share, which was the subject of this mortgage, in
joint ancestral property, have been withdrawn from the general rule govern-
ing co-parcenary estates. The proposition stated in Sadabart Prasad
Sahu v. Foolbash Koer (2) rested on earlier authority. It had been
followed by a series of decisions, of which Ghunder Coomar v. Hurbuns
Sahai (3) was a late one. In Allahabad there had been Chamoili Kuar
v. Bam Prasad (4), and Bamanund Singh v. Gobind Singh (5). Also were
referred to, Vasudev Bhat v. Venkatesh Sanbhav (6), Bhugivandee.n Doobey
v. Myna Baee (7), Madho Parshad v. Mehrban Singh (8), Mussumat
Phoolbas Koonwar v. Lalla Jogeshur Sahoy (9).

In Madho Parshad v. M ehrhan Siugh (8), it was decided that where
a co-parcener had sold his undivided share to a purchaser, the rights of a
surviving co-parcener prevailed by survivorship over thoseof the purchaser.
Reference was made to the judgment in Lakshman Dada Naik v. Bamchan-
dra Dada Naik (10), in which the [346] committee declined to extend the
power of a co-parcener to alienate. A mortgage by a co-pareener did not
create any immediate interest in the joint property, and resulted in being
merely a personal contract between the mortgagor and the individual
coparcener, though a lien might attach when the co-parcenary interest
of the shares came, afterwards, to be ascertained by partition of the
joint estate. But there could be no charge on the estate till partition,
the co- parcenary state of things lasting, and the right of survivorship

(1) 6 LA. 89 at p. 103 = 5 C. 148 at pp. 166, 167.

(2) 3 B.L.R. (F.B.) 31. (3)160.137. (4) 2 A. '267.

(5) 5 A. 384. (6) 10 B. H, C. B. 139. (7) 11 M.I. A. 487 at p. 516,

(8) 17 I. A. 194 = 18 0. 157. (9) 3 I. A. 7 = 1 G. 226.
(10) 7I.A. 181 = 5 B. 48.



The mortgagee's remedy should have been to obtain a decree upon 1893
the mortgage debt, and to have attached the land in execution of his decree. APRIL 28.
But the right to enforce the mortgage was inconsistent with the require-
ment that partition should precede any transfer. The share might vary, PRIVY
and it was uncertain whether the mortgagor's share was to be taken as it COUNCIL.
existed at one period, or another. In Rangasami v. Kisknayyan (1) it was
held that; the purchaser's right to partition of a share applied to the share 13 * 3 ^ 9
as computed with reference to the state of the family at the date of suit. (P.C.) =
The charge could only take effect when there should be either a voluntary 20 '* 116 =
partition, or one upon the compulsion of a judicial sale. He referred to 6 Sai> - PiCilI<
Sfcrange's Hindu law, Vol. I, p. 202. [SIR R. COUCH referred to Udaram Zi =17 In(L
Sitaram v. Eanu Panduji (2), and the statement of the question in that Jur> i23 '
case by SIR M.B. WESTROPP, G.J.]

Mr. T.H. Cowie, Q.C., replied.

Their Lordships judgment was afterwards, on the 28bh of April,
delivered by SIR R. COUCH.


The respondent, Narain Lai, is the son of the respondent Naunidh
Lai, and they are governed by the law of the Mitakshara, as administered
in the North- Western Provinces. Oa the 27fih of November 1879, Narain
Lai executed what is known in India as a simple mortgage, whereby, in con-
sideration of a debt of Rs. 86, 834-12-3, then due to Balgobind Das, the appel-
lant, and a further advance of Rs. 6, 165-3-9, making together Rs. 93,000,
[347] Narain Lai pledged a 4-anna share owned by him under the Hindu
law out of the 8-anna share of his father, Naunidh Lai, in the ancestral
property situate in the districts of Benares, &c., of which a detail was
given at the end of the deed. And he bound himself to pay the principal
sum and interest at Re. 1-8 per cent, per mensem within two years from
the date of the bond. Neither the principal sum nor any part of the
interest was paid within tha two years nor subsequently, but the appel-
lant did not take any steps to enforce the bond until the 12th of February
1886, when he brought a suit in the Court of the Subordinate Judge of
Benares to recover the principal money and interest by enforcement of
the hypothecation lien and sale of the mortgaged property. The defen-
dants in the suit were Narian Lai and two others, Balkishen Lai and Gopal
Das, who were joined as being in possession of portions of the mortgaged
property. By an order, dated the 22nd of June 1886 Bhola Singh was made
a defendant instead of Gopal Das and by another order dated the 22nd of
Septemoer 1886 Naunidh Lai was made a defendant. The real contest in
the suit was between him and the appellant. The defence set up in his-
written statement is that he and his son were under the law of the
Mitakshara, and that the mortgage deed was invalid ; that out of the pro-
perties mentioned in the plaint the properties in the first schedule to the
written statement were sold to the extent of the rights and interests of
Narain Lai in execution of decrees held by third parties before the date
of the plaintiff's mortgage-bond sued on, and were purchased ^by him
with his own money in the name of his wife, that the rights of Narain
Lai in the properties mentioned in the second schedule were purchased
in good faith by him with his own money, some in his own name, some in
the name of his wife, and some through his mukhtar. The whole of the
purchases where made at sales by auction in execution of decrees, and it

(1) 14 M. 408. (2) 11 B.H.C.R, 76.



1893 was found by the first Court that the defendants were bona fide pur-

APBIL 28, chasers who had no notice or knowledge of the mortgage to the plaintiff.

It was admitted by the learned Counsel for the appellant that there was

PRIVY no fact in dispute in this appeal. There is no question as to the

COUNCIL, properties in the first schedule. They are clearly not affected by

[348] the mortgage-deed. As to the properties in the second schedule,

i A. 339 the purchasers, according to the judgment of this Board in De&n Dyal

Lai v. Jugdeep Narain Singh (l), acquired the right of compelling the

20 LA. 118= p ar fcifci n which the debtor might have compelled had he been so minded

i Sar. P.C.J. De f ore the alienation by the sale of his share took plaoe. The main question

313 = 17 ind. j n the case is whether the mortgaee is valid, and creates" a charge which

Jur. 423. j s j; O nave priority over purchases at execution sales made bona fide, and

without notice of it.

The Subordinate Judge held that Narain Lai was not competent to
mortgage his undivided share in the joint estate without the consent of
his father for a debt incurred for his own individual benefit, and made a
decree that the plaintiff should recover Es. 1,26,480 out of the amount
claimed from Narain Lai presonally, dismissing the rest of the suit. The
High Court, on appeal, affirmed this decree with a variation of the interest.
As to the defence that the mortgage-deed is invalid, the leading case
upon the Mitakshara law as administered, in Bengal and the North-
Western Provinces is Sadabart Prasad Sahu v. Fooibash Koer (2). In
that case two questions, had been referrred to a Full Bench, the second
being : "Bhagwan Lai (a member of a Hindu family governed by the
Mitakshara law) in his lifetime, executed an ordinary zur-peshgi mortgage
in respect of his undivided share in a portion of the joint family property,
in order to raise money on his own account, and not for the benefit of the
family. Can the nephew of Bhagwan Lai (who had died) recover from
the mortgagee, without redeeming the same, possession of the mortgaged
share, or any portion of it?" Sir Barnes Peacock in delivering the judg-
ment of the Full Bench (the other Judges concurring) upon this question
observed that there were conflicting decisions on the subject, cases in the
reports of the High Courts of Bombay and Madras being in the affirmative,
and a case in the High Court at Calcutta in the negative, and said that the
decision of theCalcutta HighCourt was founded upon a current of authorities
pupnorted by the Vyavasthas of Pandits which it was too late for the Court
[349] to overrule even if they were disinclined to agree in the principle
established by them. Then, after referring to reported decisions of the
Sudder Courts, the earliest of which in Bengal was in 1822, and in the
North- Western Provinces (formerly part of Bengal) was in 1860, and to the
parts of the Mitakshara bearing upon the question, he concluded by say-
ing : " Whatever our opinions might be, in the absence of the decided
cases to which I have referred, I am of opinion that we should not ba
justified in unsettling the law by overruling that current of authorities by
which for nearly half a century, the law appears to have been settled,
and in accordance with the principles of which it appears to have been
generally understood and acted upon, lam of opinion that upon the simple
fact stated in the saoond question, Bhagwan Lai had no authority, with-
out the consent of his co-sharers, to mortgage his undivided share in a
portion of the joint family property, in order to raise money on his own
account, and not for the benefit of the family,"

(1) 4. LA. 247. (2) 3 B.L.R, (P.B.) 31.


In the judgment in Dsen Dijal's case the distinction between the 1893
voluntary alienation and a sale in execution is referred to thus :- " Their APRIL 28
Lordships' finding that the question of the rights of an execution creditor,
and of a purchaser at an execution sale, was expressly left open by the PPJVY
decision in Sadabart's case, and has not since been concluded by any COUNCIL,
subsequent decision which is satisfactory to their minds, have come to the
conclusion that the law, in respect at least of those rights, should be 13 * 339 =
declared to be the same in Bengal as that which exists in Madras. They do (P.C.)=
not think it necessary or right in this case to express any dissent from the 20 *' 11 ^ !a
ruling of the High Court in Sadabart's case as to voluntary alienation. Bub, 6 Sat- P-G-J.
however, nice the distinction between the rights of a purchaser under 313 = 17 Ind,
a voluntary conveyance and those of a purchaser under an execution ^ UPt * 2 ^*
sale may be, it is clear that a distinction may, and in some cases
does, exist between them." It appears to have been sometimes sug-
gested that the law in Madras and Bombay is a logical consequence of
the decision in Deen Dyal's case, and some argument of this kind
seems to have been urged in the present case before the Subordinate
Judge. Upon this there is an important passage in [350] the judgment
of this committee in Lakshman Dadu Naik v. Ramachandra Dada
Naik (1) where the question related to an alienation by will uoon
which the authorities in Bombay and Madras were then in cot flict.
At page 193 their Lordships say. " The argument (that the will should
be treated as a disposition by the co-sharer in his lifetime of the
undivided share) is founded upon the comparatively modern decisions of
the Courts of Madras and Bombay which have been recognized by this
committee as establishing that one of several co-parceners has, to some
extent, a power of disposing of his undivided share without the consent of
his co-shares," and at p. 195. " Their Lordships are not disposed to extend
the doctrine of the alienability by co-parcener of his undivided share
without the consent of his co-sharers beyond the decided cases. In the
case of Suraj Bunsi Koer above referred to they observed : " There can be
little doubt that all such alienations, whether voluntary or compulsory,
are inconsistent with the strict theory of a joint and undivided family
(governed by the Mitakshara law): and the law as established in Madras
and Bombay has been one of gradual growbh founded upon the equity
which a purchaser for value has to be allowed to stand in his vendor's
shoes, and to work out his rights by means of a partition. The question
therefore is not so much whether an admitted principle of Hindu law shall
be carried out to its apparently logical consequences, as what are limits
of an exceptional doctrine established by modern jurisprudence."

The reported decisions as tor.he law in the North- Western Provinces
do not go so far back as those in Bengal, but in Chamaili Kuar v. Ram
Frasad (2) Mr. Justice Oldfield says " The question cannot be said to
be at this time an open one on this side of India. There is no doubt a
current of decisions by this Court, invalidating sales by one co-parcener
without the consent, express or implied, of his co-parcener, and I have not
been able to find any case where a voluntary sale was held valid to the

extent of the seller's own interest The law may be

said to have bean settled by a course of decisions and it would be undesir-
able to disturb it."

[351] The reason which has led to the recognition by this committee
of the law in Madras and Bombay applies as strongly to the recognition of

(1) 7 1. A, 181, (2) 1 A. 267.



1893 *he settled law of Bangal and the North- Western Provinces, and the judg-
APBIL 28. naent in the 7th Indian Appeals appears to their Lordships to be a recogni-
tion of that law. This is confirmed by the judgment of this committee in
PRIVY Madho Parshad v. Mehrban Singh (1). There a Hindu, without the
COUNCIL, consent of his co-parcener, had sold his undivided share in the family
estate for his own benefit, and received the purchase-money to his own use;
15 A. 339 on hj s death the surviving co-parcener sued to recover the share. In the
(P.C.)= judgment delivered by Lord Watson it is said that the Counsel for the
20 I. A. 116= appellant conceded in argument that the rules of the Mitaksbara law,
6 Sar. P.C.J. wn j c n prevail in the Courts of Bengal are applicable in Oudh to the
313 = 17 Ind. alienation of interests in a joint family estate; and that he likewise
Jur. 423. conceded that the sales being without the consent of the co-parcener, and
not justified by legal necessity, were, according to that law, invalid ; but
he maintained that the transactions being real, and the prices actually
paid, the respondent could only recover the shares sold subject to an
equitable charge in the appellant's favour for the purchase monies. It
was held that it might have been quite consistent with equitable principles
to refuse to the seller restitution of the interest which he sold, except on
condition of its being made at once available for the repayment of the
price which he received, but that the respondent who took by survivorship
was not affected by any equity of that kind, and that an equity which
might have been enforced against the seller's interest whilst it existed
could not be made to affect that interest when it has 'passed to a
surviving co-parcener except by repealing the rule of the Mitakshara
law. In the present case the interest has passed to Naunidh, not by
survivorship but by purchases at sales in execution of decrees. Although
it is not the same interest as he would acquire by survivorship, it is
sufficient to entitle him to set up the invalidity of the mortgage deed. If
any portion of Narain Lai's share is still unsold, the appellant may attach
and sell it in execution of the decree against Narain Lai personally, but
[352] not by virtue of the mortgage. The decision in this suit is not
intended to prejudice that right. But for the above reasons their Lord-
ships hold that the suit against the other defendants was rightly dismissed.
The High Court altered the decree of the Subordinate Judge by giving
to the appellant interest on the Ks. 93,000 at 5 per cent, per annum,
from the 27th of November 1881 to the 13th of February, 1889, the date
of its decree. In the mortgage deed it is covenanted that even if a suit is
instituted, interest shall be paid on the whole or part of the principal
amount at the rate of Ee. 1-8 per cent, per mensem (18 per cent, per
annum), and the decree should be varied by giving interest at that rate
instead of 5 per cont. to the 12th of February 1886 the date of theinstitu-
tion of the suit.

Their Lordships will humbly advice Her Majesty accordingly. The
appellant having substantially failed will pay to the respondent, Naunidh
Lai, his costs of this appeal.

Solicitor for the appellant : Mr. J. F. Watkins.
Solicitors for the respondent : Messrs. Pyke and Parrott.

(I) 171. A. 194.



15 A, 352 (P.C,) = 20 I. A. 127 = 6 Bar. P.C J. 327 = 17 Ind. Jur. 876. 1893



Lord Watson, Lord Morris, Sir E. Couch and the Honourable COUNCIL.

George Denman. 15^~852

[On appeal from the High Court at Allahabad]. (P.C.) =

20 1.1. 127 =

[352] RAJA MOHKAM SINGH AND OTHERS (Appellants) v. RAJA RUP l^^'vi'i V

SINGH AND OTHERS (Respondents). [17bh March and 28th April, 1893]. 8Z J n '

Jur. Ala,

Agreement to supply momy (or another persm's suit Excess o/ the reward rendering
such aa eement inequitable Chimperty.

A fair agreement to supply money to a suitor to carry on a suit, in considera-
tion of '.be lender's having a share of the property sued for, if recovered, is not to
be regarded as necessarily opposed to public polioy, or merely, on this ground,
void. Bu5 in agreements of this kind the questions are : (a) whether the agree-
ment is extortionate and unconscionable, so as to be inequitable against the
borrower ; or (6) whether the agreement has been made, not with the bona fide
object of assisting a claim, believed to be just, and of obtaining reasonable
compensation thereof, but for improper objects, as for the purpose of gambling
in litigation, or of injuring others, so as to be, for these reasons, contrary to
public polioy. In either of these cases, effect is not to be given to thf> agreement.
Here, upon the facts the above case (6) did not arise, and this agreement was not
contrary to public policy. But this agreement fell [353] within case (a), and
the judgment of the High Court was affirmed, that the agreement was so
extortionate and unconscionable, in regard to the excess of the reward, that it
was inequitable and, therefore, not enforceable against the defendant.

Ram Coomar Coondoo v. Chunder Santo McoJterjee (I) referred to and followed.

[R., 29 A. 303 = 4 A.L.J. 222 = A.W.N. (1907), 55 ; 24 C. 183 (189) ; 34 M. 7 (11) = 6

Ind, C is. 439 = 20 M.L.J. 785 = 8 M.L.T. 108 J 14 C.W.N. 191 (201); 2 Ind.

Cae. 385 (389) ; 10 O.C. 173 (176) ; 79 P.B. 1894 ; 26 P R. 1906 = 20 P.L.R.
1906; 1 S.L.R. 21 (26).]

[N.B. Read in this connection 11 A. 118, whereon this appeal hai arisen. See also
11 A. 57.1

APPEAL from a decree (2) (12bh July 1888) varyingr a decree (24th
April 1886) of the Subordinate Judge of Mainpuri.

The question raised by this appeal related to an agreement by a
suitor, in consideration of an advance of money being made to him for
carrying on his suit, to give the lender a share of the property in litigation
in the event of success.

In this suit, commenced on the 31st of July 1885, Raja Loke Indar
Singh, since deceased, and now represented by bis son, Raja Mohkam
Singh, the present appellant, was plaintiff. The object of the suit was to
enforce against the defendant, Raja Rup Singh, an agreement, admitted to
have been executed on the 13th of March 1882. By this, which was in
the form of a deed of sale, in consideration of the plaintiffs' paying the
costs of an appeal to Her Majesty in Council from a decree, preferred by
Raja Rup Singh, and in the event of success, they were to have a one-
eighth share of the property, involved. This estate was the Bhara Zamin-
dari claimed by Raja Rup Singh ; and the plaintiffs were also, under the
agreement, to have the like share in an outstanding debt of Rs. 64, 155,
due to that estate, with interest. The material part of this instrument is
set forth in their Lordships' judgment, where the facts appear. They are

U) 4 I. A. 23 = 2 C. 233.

(2) Reported, sub nomine Loke Indar Singh and others v. Rup Singh, in 11 A. 118.



1893 a ' so stated m the report (where the agreement is set forth at length) of
APRIL 28. Loke Indar Singh v. Rup Singh (1).

The circumstances which preceded the execution by the defendant of

PRIVY the sale-deed of the 13th of march 1882, as well as the result of the

COUNCIL, litigation in a prior suit, in which Eup Singh obtained 'possession of the

Bhara estate, and its accumulated income, appear in the judgment of the

15 A. 352 High Court, as well as observations upon the law of champerty, in Chunni

Kuar v. Eup Singh (2).

6 Sar/P.C J [354] The defendants had disbursed, in pursuance of the arrangement,

327 = 17 inti. about Es. 8,000, having also stood security for Es. 4,000, which would
Jur. 376. have been payable, had the appeal failed. It did not fail, but succeeded
see Rup Singh v. Rani Baisni (3).

The plaintiffs claimed the one-eighth share, but the defendant, after
some negotiations, refused to make any payment.

The first Court dismissed the claim upon the ground that the plain-
tiffs had obtained the execution of the document of the 13th of March
1882, in an inequitable way. That decision was reversed by the High
Court on an appeal by the plaintiffs. A Division Bench (EDGE, C.J., and
TYRRELL, J.) gave judgment in favour of the plaintiffs, but not to the full
extent claimed, holding them entitled to recover the amount of their
' advances with interest, and also compensation for their having become
security for the costs of the defendant ; but the Court held them not
entitled to any share in the Bhara estate. The judgment is reported in
I.L E. 11 All., at p. 122.

On this appeal.

Mr. R. V, Doyne and Mr. G.E.A. Ross, for the appellants, contended
that they were entitled to a decree for the full amount of their claim,
either in land of the Bhara estate, or its value there being nothing inequit-
able in the agreement. It was not unconscionable either in regard to the
amount of the reward, or on account of its having baen obtained by extor-
tionate acts. It had been freely entered into by the respondent, who had
benefited by it. At first, on the arrival in India of the order in Council,
in favour of Eup Singh, he had expressed his willingness to carry out the
agreement. But afterwards, when a question had arisen as to whether
the plaintiffs should receive their share in land, or in cash, he had offered
Ea. 50,000 ; and then, finally, refused to give anything. The appellants to
obviate any difficulty arising from the impartible character of the estate,
offered in the Court below to take their one-eighth in money ; and a
reference was made to the Collector of [355] the district, to inquire as to
the value of the Bhara estate. This was found by him to be worth
Es. 4,00,000. It was submitted that the appellants were entitled in the
proportions specified in the agreement.

Upon the question whether the zamindar of an impartible zamindari

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 138 of 155)