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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 141 of 155)
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decree the defendant, Jagan Nath, the decree-holder, appealed to the High (1893) 122.

Court.

[376] The Hon'ble Mr. Colvin and Mr J. N. Pogose, for the appellant.

Babu Rajendra. Nath Mukerji, for the respondents.

JUDGMENT.

EDGE, C. J., and AIKMAN, J. This suit was brought in the Court of
the Munsir of Mahaban by the zemindars against certain agricultural
tenants of theirs, and a person who had obtained a Civil Court decree
against those tenants, and the vendee at an auction-sale held under that
decree. The facts which show the relief that the plaintiffs wore entitled
to, are stated clearly enough in the plaint ; possibly with some exaggera-
tion, so far as the charge of collusion is concerned. The prayer of the
plaint as to arrears of rent is wrongly framed. A suit for arrears of rent
of agricultural land does not lie in the Civil Court. However, the suit as
against the tenants has been dismissed, and they are not parties to this
appeal. The suit as against the other two defendants, i.e., as against
the execution-creditor and the purchaser at auction sale, was decreed for
the amount of the rent due. The auction-purchaser does not appeal, so
we need not consider his position in the suit. In this appeal we have
only to consider what remedy the plaintiffs bad against the execution-
creditor under the decree in the civil suit. Tbat execution-creditor attached
and sold the produce of the land which was in the occupation of the
plaintiffs' tenants, At the time when the execution-creditor attached and
sold that produce, the rent in respect of the land was accruing due to the
plaintiffs, the landlords. Whether the execution-creditor could lawfully
bring to sale that produce, without first satisfying the lien of landlords,
depends on the construction of s. 56 of Act XII of 1881. That section is
as follows :

" The produce of all land in the occupation of a cultivator shall be
deemed to be hypothecated for the rent payable in respect of such land ;
and until such rent has been satisfied, no other claim on such produce
shall be enforced by sale in execution of decree or otherwise ; and when an
arrear of rent is due from any cultivator, the person entitled to receive
rent immediately from him may, instead of suing for the arrear as herein-
after provided, recover the [377] same by distress and sale of the produce
of the land in respect of which the arrear is due, under the rules contain-
ed in this chapter."

It has been contended on behalf of the execution-creditor, appellant,
the words " rent payable " in the first paragraph of that section
mean " rent due and payable," i.e., that they do not refer merely to rent
accruing due. In support of that contention Mr. Pogose has relied upon
the decision of this Court in Naikram Singh v. Murli Singh (1) we do not

(1) 5 A W.N. (1885) 262,

959



13 All. 378



INDIAN DECISIONS, NEW SERIES



[Yol.



1893

MAT 19.

APPEL-
LATE
CIVIL.

15 A. 375 =
13 A.W.N
(1893) 122.



think that it was decided in that suit that " rent payable " in s. 56 meant
"r ent due." The real point which was decided there was that a landlord
could execute his Civil Court decree by a sale of the produce of land held
by his tenant. That decision only means that the landlord for whose
benefit s. 56 of Act No. XII of 1881, was passed may abandon his lien
as landlord on the produce and sell that produce under a Civil Court
decree. It is to be noticed in'considering what is the construction of s. 56,
what was the object of the Legislature, and particularly what was the
language which they used. The second paragraph of s. 56 gave the land-
lord a power of distress when an arrear of rent was due to him from his
immediate cultivatory tenant, and in that second paragraph the words
used for this purpose are " when an arrear of rent is due." The words
" the rent payable," as used in the first paragraph, do not mean the same
thing as " arrear of rent due " in the second paragraph.

In our opinion the distinction was intended. It was intended by
the first paragraph bo prevent by a Civil Court or other sale made whilst
rent was accruing due, the right of distress for an arrear of rent due
given by the second paragraph being defeated. In our opinion where
any one except the landlord wishes to bring to sale the produce of a
cultivator, he must, in order to avoid the prohibition contained in s. 56
of Act No. XII of 1881, tender to the immediate landlord of the
cultivator, the amount, if any, for which the landlord mighfc on the
next ensuing sale day distrain the produce for arrears of rent. We think
that the first paragraph of s. 56 [378] applies not only where there is
rent in arrear due from the cultivator to his landlord, but also where rent
is accruing due in respect of the period during which the produce was
being grown. We dismiss the appeal with costs.

Appeal dismissed.



15 A. 378 = 13 A.W.N. (1893) 117,
APPELLATE CIVIL.

Before Mr, Justice Knox and Mr. Justice BurJcitt.



SHEO DENI KAM AND ANOTHER (Defendants) v. TULSHI BAM AND
OTHERS (Plaintiffs) .* [19th May, 1893. J

Act VII of 1670 (Court Fees Act), s. 7 Act VII of 1897 (Suit* Valuation Act), ss 4, 10
Adoption Suit to set aside an adoption Valuation of suit.

The value for the purposes of jurisdiction of a suit to set aside an adoption is not
the value of the property which may possibly change hands if the adoption be set aside,
but tho value put upon his plaint by the plaintiff. Kesliava Sanabhaga v. Lakshrni
Narayana (1), dissented from.



[Appr., 32 0. 731 (739)
99 ; 60.L.J. 427 =



9 G W.N. 690 ; R., 29 A. 545
1 O.W.N. 705 ; 42 P.R. 1901.]



3 A.L.J. 266 = A.W.N. (1906)



THE plaintiffs in the suit out of which this appeal arose, being res-
pectively the father, the two minor brothers, and the paternal uncle of the
principal defendant, sued one Sheo Dani Bam and hia adoptive mother, the
widow of one Kali Charan, a paternal uncle of Sheo Dani Bim, to set aside

* Second Appaal No. 207 of 1891, from a deoree of Pandit Bansidar, Subordinate
Judge of Ghazipur, dated the 13;h Djoember 1890, confirming a deoree of Babu Gird-
hari Lai, Munaif of Ballia, dated the 6t>h September 1890.

. (1) 6 M. 192,



960



YII] SHEO DENI RAM V. TULSHI RAM 15 All. 380

1893

a deed, which purported to effect the adoption of Sheo Dani Earn by Kali

Charan. In the plaint the relief for the purposes of jurisdiction was valued ___
at Kg. 600. The defendants inter alia pleaded that, inasmuch as the APPEL-
property to which, if the adoption was held to be valid, Sheo Deni Earn
would be entitled to succeed upon the death of Kali Gharan, was of consi-
derably greater value than Eg. 1,000, the Court, that of a Munsif, had no CIVIL.
jurisdiction to try the suit. The Court, however, overruled this objection . ^"070-.
and gave the plaintiffs a decree on the merits. The plaintiffs appealed . , ^
to the Subordinate Judge, taking in that Court the same objection as to ,,090, <x>*
jurisdiction which they had raised in the Court of first instance, but the
Subordinate Judge, agreeing with the findings of the Munsif, dismissed the
appeal. The plaintiffs then appealed to the High Court.

[379] THE facts of this case sufficiently appear from the judgment
of the Court.

Munshi Govind Prasad and Munshi Jwala Prasad, for the appellants.

Mr. Abdul Maj id and Pandit Sundar Lai, for the respondents.

JUDGMENT.

KNOX and BURKITT, JJ. The main question for decision in this
second appeal is whether the Court of first instance had or had not juris-
diction to try the suit out of which this appeal arose. The suit was one
in which the respondents, who were plaintiffs, prayed that a certain deed
of adoption might be invalidated, and in their plainb they expressly stated
that the value of the relief for the purpose of jurisdiction was Es. 600.
It is contended by the appellants that the property at stake, if this deed
of adoption be declared invalid, amounts in value to more than Es. 5,000,
and, relying upon the precedent in Keshava Sa?mbhacja v. Lakshmi
Narayana (1), tney urge 1 that the Court of first instance had no jurisdic-
tion to entertain this suit. Up to the present time no rules have in these
Provinces been framed for the determination of the value of land or
interest in land, suits relating to which would fall under the Court Fees
Act, 1870, s. 7, paragraphs 5 and 6 and paragraph 10, clause (d).

This being the case, according to s. 4. of Act No. VII of 1887, the
only restriction placed upon valuation by that Act; is not in force and
does not apply, and we are left without any guide. We are not prepared
to follow the precedent just quoted in suits of this kind. We are dis-
posed to hold that it is for a plaintiff to put his own valuation on the
relief which he claims. We do not see why we should import into a
suit, which only asks for a declaration, that a certain deed is invalid,
the consideration that, ab some future time, the plaintiff or the defen-
dant may or may not enter into or be entitled to claim some property
by virtue of the decree which may be passed in that suit. Independently
of this view, we are of opinion that this is a case, which is fully covered by
the provisions contained in s. 11 of the Suits Valuation Act of 1887,
[380] and if there has been an undervaluation, which we think there has
not been, that undervaluation has not prejudicially affected the disposal
of the suit of appeal on its merits. The first plea taken in appeal fails.
The findings of fact by the lower appellate Court are fatal to the fourth
plea, and these were the only two pleas argued before us. The appeal
therefore fails and is dismissed with costs.

Appeal dismissed.



A VII 121



(1) 6 M. 192.
961



15 All. 38 1



INDIAN DECISIONS, NEW SERIES



[Yol.



1893

MAY 23.

APPEL-
LATE
CIVIL.

16 A. 380 =
43 A.W.N.
(1893 150.



i5 A. 380 = 13 A.W.N. (18931 ISO.
APPELLATE CIVIL.

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



BEHARI LAL AND ANOTHER (Plaintiffs) v. KODU RAM (Defendant).*

[23rd May, 1893 ]

Executions? decree Attachment at jrini family r>o er'jf ol p^perfy in tact ptrtitioved
J-rint sii'l bit holders of two sfo >res to have their shares dp Inrtd rot liable to attach-
ment Misjoinder cf cau'es of action Civil Procedure Code, ss. 26, 31, 45, 53, 578.

A decree-holder in execution of a decree against on G L. attached a house as
belonging to G. L. and his two sons forming a joint, Hinnu family. The sons
objected that the house had previously been partitioned and was held by them
and their father in separate shares but their objection w;v<< disallowed. They
then brought a joint suit for a declaration that tfapir respective portions of the
bouse were not liable to attachment in execution of a d<creo against their father.
No objection \vas taken to the frame o-f that, suit, and the Oourt of first instance
gave the plaintiffs a decree on the finding that partition had in fact taken plaoe
prior to the suit in which the defendant, judgment creditor, had obtained his
decree. On appeal by the judgment-creditor, the l^wer appellate Court dismissed
the suit entirely, on the ground of misjoinder of causes of action. The plaintiffs
appealed to the High Court.

Held on these facts that the plaintiffs shiuld have been allowed to amend
their plaint by striking out the name of one them, that under the ciroum-
tances s. 578 of the Code of Civil Proo^ure woull n,op!y.

{R., 18 A. 131 (134) ; 2 C.L.J. 602 (609) ; 3 O.C. 215 (2 9.]

THE facts of this case are sufficiently stated in the judgment of the
Court.

Munshi Jwala Prasad, for the appellants.
Kunwar Parmanand, for the respon lent.

JUDGMENT.

[381] EDGE, C. J., and AIKMAN, J. The suit out of which this
appeal arose was one for a declaration of r.itle. It was brought by two
Hindu brothers against a person named Kodu Ram, who was exocuting a
decree ngainst their father. The father was also made a defendant in the
suit. Kodu Ram in execution of his decree against the father bad attached
a house. The plaintiffs filed an objection to the attachment, alleging that
part of the property attached was theirs and nob thair father's. The
objection was disallowed. They brought this suit. The first Court
found ther-e had been a separation in the Hindu family, and that
some fourteen years prior to the suit one portion of the house was
partitioned off to one of the plaintiffs, another portion of the house to
the other plaintiff and the remainder to the father. The first Court
gave the plaintiffs a decree. Kodu Ram appealed. Kodu Ram had not
taken in his written statement or his memorandum of appeal any objection
to the frame of the suit, but the District; Judge rightly considering that-
each plaintiff was suing on a separate cause of action, dismissed their joint
suit. The plaintiffs have appealed. No doubt iu the great majority of
cases in which two or more plaintiffs sue in one suit in respect of causes
of action which are not joint, it would be proper to return the plaint under
8. 53 of the Code of Civil Procedure for amendment, and leave the plaintiffs



* First Appeal, No. 193 of 189), from a decree cf R. Poott, Esquire, District Judge
cf Banda, dated the 21st January 1891, reversing a decree of Munshi Madho Lai, Sub-
ordinate Judge of Banda, dated the 19th November 1890.

962



YII]



DAULTA KUARI V. MEGHU TIWARI



15 All. 382



to elect; as to which of them should ba struck out of the suit, but we
doubt; whether a Court should, without giving the parties an opportunity
of amendment, absolutely dismiss the whole suit. That is what the District
Judge did here. It has bean contended on behalf of the respondent that;
reading ss. 31 and 45 of the Code of Civil Procedure, a suit like this is
prohibited. Section 31 does not prohibit the suit;. It can be implied from
that section that persons having distinct causes of action should not
join in one suit as plaintiffs in respect of those distinct causes of ac-
tion. Neither is there any express prohibition in s. 45 against such
a suit. Is ia a more difficult question whether such a suit as this
is allowable under s. 26 of the Code. This is a very peculiar case.
The house at one time was the joint family property of the plaintiffs
and their father. It was attached by Kodu Bam as the property
[332] of the father, a joint objection to the attachment was made aud
not objected to on the ground of its being joint, but on the ground that
it was too late. In one sonsa these plaintiffs were jointly interested in
opposing the attachment and sale, although a sale would only have
affected each man's separate interest. Their title was a common title,
which was assailed by one and the same action of Kodu Ram. We can
well understand that the plaintiffs or their legal advisers may have thought
thai; the case came within the latter part of the first paragraph of s. 45
of the Code of Civil Procedure. No objection was raised by the defendant
to the frame of the suit. The Court did not exercise its discretion under
s. 53 of the Code. There is not the slightest doubt that the Court had juris-
diction to try either of the causes of action included iu the plaint. There
was undoubtedly an irregularity in the procedure of the first Court in
trying the suit as ii was framed, but that irregularity did not affeat the
merits of the case or the jurisdiction of the Court to deal with either of the
causes of action. In our opinion s. 578 of the Code applied. We set
aside the decree of tue District Judge and remand the appeal under
s. 562 of the Code to his Court to ba decided on the merits. The costs of
this appeal aud of the hearing hitherto in the Court below will be borne
by each side, i.e., there will be no costs of this appeal and of the hearing
hitherto.

Cause remanded.



13 A. ?82 = 13 A.W N (1893) 149.

APPELLATE CIVIL.
Before Mr. Justice Burkitt.



1893

MAY 23.

APPED-

LATE

CIVIL.

ISA. 380 =
13 A W H.

(1893 1F.O



DAULTA KUARI (Plaintiff) v. MEGHU TIWARI AND ANOTHER
(Defendants)* [23rd May, 1893.]

Bin-in Law Hindu widow Maintenance Suit on a cement decree to recover arrears
of main'enanceUnc'hastity of widow Starving maintenarce.

A decree obtained by 3, Hindu widow declaring her right to maintenance is liable
to ba set aside or suspended in iis operation on proof of subsequent unohastity
given by the husband's relatives, either ia a suit brought, by them expressly for
the purpose of setting aside the decree, or in answer to the widow's suit to enforce



* Second Appeal, No. 420 of 1892, from a decree of Pandit Bansidhar, Subordinate
Judge of Gbnz'pur, dated the 6th February 1892, reversing a decree of Babu. Gang*
PrasaJ, Munsif of Gbazipur, dated the 6th June 1891.

963



15 All. 383



INDIAN DECISIONS, NEW SERIES



[Vol.



1893

MAY 23.

APPEL-
LATE
CIVIL.

IB A. 382 =
18A.W.N.

(1898) 149



[P.



her right. [383] Upon proof of such subsequent unohaqtity the widow is enti-
tled to no maintenance whatever. Vishnu Shambhog v. Manjimma (1) and Roma
Nath v. Rajonimoni Dasi (2), approved.

9 Ind; Gas. 926 (927) = 19 P.W.R. 1911; R., A.W.N, (1903), 226 ; 13 O.P.L.R.
156 (157).



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

Munshi Govind Prasad, for the appellant.
Munshi Madho Prasad, for the respondent.

JUDGMENT.

BURKlTT, J. In this case the plaintiff, a Hindu widow, had, on a
consent decree, obtained a declaration that she was entitled to receive a
certain amount of food and clothing from the defendants by way of main-
tenance. The present suit has been "brought to enforce that decree by
recovery of arrears of that maintenance. For the defence it is pleaded
that subsequently to the decree the plaintiff became unchaste and is now
leading an immoral life. The lower appellate Court has found that these
allegations are true and dismissed the suit. On appeal to this Court two
contentions have been put forward, viz., (1) that as long as the declaratory
decree stands unreversed the plaintiff is entitled to obtain the amount
decreed to her by it, and (2) that under any circumstances she is
entitled to what is known as "starving maintenance." In my opi-
nion neither of these propositions can be supported. As to the
first, I concur with the rule laid down by the Bombay High Court in
the case of Vishnu Shambhog v. Manjamma (1) to the effect that a decree
obtained by a Hindu widow declaring her right to maintenance is liable
to be set aside or suspended in 'its operation on proof of subsequent un-
chastity given by the husband's relatives, either in a suit brought by them
expressly for the purpose of setting aside the decree or in answer to the
widow's suit to enforce her right. In the present case the widow has
sued to enforce her right. In answer to her suit it has bpen alleged and
proved that she is leading an immoral life. Her suit therefore, on the
authority cited above, must fail. As to the second proposition, I am of
opinion that it also is unsound. It has been held by the Calcutta High
Court in the case of Roma Nath v. Rajonimom Dasi (2) that when a Hindu
[384] widow became unchaste after her husband's death and was lead-
ing an immoral life at or about the date of the suit, she was not entitled
to maintenance. The judgment in that case, in which I freely concur,
disposes of the second point. The appeal therefore fails on all sides and
is dismissed with costs.

Appeal dismissed.



(I) 9 B, 108,



(3) 17 0. 674.



964



YII] BAM HARAKH RAI V. SHEODIHAL JOTI IS All. 385

ISA. 381 = 13 A.W.N, (1893) 163. 1393

APPELLATE CIVIL. MAY 30,

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

EAM HARAKH EAI (Defendant] v. SEODIHAL JOTI (Plaintiff).* CIVIL
[30bb May, 1893.] '

Act 1 of 1877, s. 9 Suit for possession of land by person ivrongfully ejected Joinder of

other claims. ^ A.W.M-

(1393 1 163
A Court should in all oases in which it applies give effect to the provisions of

the first paragraph of s. 9 of the Specific Relief Act, 1877, whether that
section is expressly pleaded or not.

There is nothing to prevent a claim for damages r.nd a claim for establishment
of title being joint with a claim for the relief provided for by the above men-
tioned section.

[Overruled, 33 A. 174 (179!=7 A.L.J. 1078 (1084) = 7 Ind Cas. 495 (499) ; N.P., 25 M.
449=11 M.L.J. 403 ; F., 5 Ind. Gas. 482; 4, A.L.J. 601 = A.W.N. (1907) 244;
R., 8 A.L J. 910 = 11 Ind. Cas. 38.]

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

Babu Jogindro Nath Chaudhri, for the appellant.

JUDGMENT.

EDGE, 0. J,, and AIKMAN, J. This appeal raises a question not
free from difficulty. Toe plaintiff is mortgagee of an occupancy-holding
neb held at a fixed rate. He got into possession and had been^n posses-
sion for many years. The defendant, who alleges that the right of
occupancy devolved upon him under s. 9 of Act XII of 1881, dispossessed
the plaintiff otherwise than in due course of law and without the consent
of the plaintiff. At the time of the dispossession the plaintiff had crops
growing upon the holding. These crops the defendant seized and disposed
of to his own USP. The suit out of which this appeal has arisen was brought
within six [385] months from the date of dispossession. The plaintiff
claimed to be put in possession under his mortgage-deed, which was
dated the 4th of February, 1876, and also to recover damages for
the interference with and conversion of his crops. The first Court
decreed the claim. On appeal the lower appellate Court confirmed the
decree of the first Court, and the defendant has brought this appeal.
Mr. Jogindro Nath, for the defendant, contends that the plaintiff had
no title, as the transfer by mortgage with possession to the plaintiff
was in contravention of s. 9 of Act XII of 1881. He also contends
that the suit cannot;, as to any part of it, be regarded as a suit under
the first paragraph of s. 9 of Act No. I of 1877 (the Specific Relief Act of
1877) ; and further that, as the plaintiff had no legal title to the land, his
client, the defendant, is not liable in damages for taking and removing the
crops. It appears to us that the first paragaph of s. 9 of Act No. I of 1877
had a most salutary object in view, viz., to discourage persons forcibly, or
otherwise than indue process of law, turning persons in possession of pro-
perty out of possession thereof, and that Courts should give effect to the
first paragraph of s. 9 of Act No. I of 1877 in all cases to which it applies.

* Second Appeal, No. 210 of 1891, from a decree of J. J. McLean, Esq., Officiating
District Judge of Aztmgarb, dated the 24th December 1890, confirming a decree of
Maulvi Ahmad Husain, Subordinate Judge of Azimgarb, dated the 19th May 1890.

965



15 All. 386



INDIAN DECISIONS, NEW SERIES



[Vol.



1893

I\IAY 30.


APPEL-
LATE
CiVIL.

18 A, 384=
13 A.W N.
183.



Undoubtedly there was a dispossession here otherwise than in due
course of law, and a dispossession without the consent of the plaintiff.
His suit was brought within six months from the date of that disposses-
sion. He consequently was entitled to a decree for possesion, no matter
what title might be shown against him, and no matter how infirm might
^8 his own title to possession, so long as he had actually held possession.
The fact that the plaintiff, in addition to alleging and proving the facts
which would entitle him to a decree under the first paragraph of s. 9,
claimed a title as mortgagee, would not disentitle him to a decree
under the first paragraph of s, 9. The decree under the first; paragraph
of s. 9 is not a decree which decides any question of title whatever. So
far as the decree of the first Court, which was affirmed below, is a decree
for possession to the plaintiff, it must be treated a? a decree in a suit
passed under the first paragraph of s. 9 of Act No. I of 1877, and not as a
decree deciding any question of title. [386] So far as the decree of the
first Court or of the Court of appeal might be regarded as a decree
establishing the plaintiff's title to possession as mortgagee of the occu-
pancy-holding, we set it aside, as the plaintiff failed to make out a good
title as mortgagee. The decree so far as it went to establish his title as
mortgagee was appealable, notwithstanding the last paragraph of s. 9 of
Act No. I of 1877 ; and so also would be that portion of the decree which
went to the question of damages, as the suit under the first paragraph of
s. 9 of Act No. I of 1877, the decree which is not appealable, does not
comprise a claim for damages. We see no reason why a claim for



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 141 of 155)