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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 154 of 155)
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the plaintiffs had failed to take delivery.

8. Ill of the Code of Civil Procedure ia not exhaustive of the descriptions of
cross-claim which may be allowed by way of set-off. NIAZ GUL KHAN
v. DURGA PRASAD, 15 A. 9 = 12 A.W.N, (1892) 115 ... 720

(3) Jurisiiction Civil and Revenue Courts Set-off. A Court of Revenue

cannot entertain a claim to a set-off unless such claim, if made the subject
of a suit, would fall within its jurisdiction.

ILld that in a suit in a Court of Ravenue by a lambardar to recover rent
the defendant was not competent to plead as a set-off that certain arrears
of malikana were due to him by the plaintiff, BENI MADHO v. GAYA
PBASAD, 15 A 401 = 13 A.W.N. (1893) 168 ... S? 8


See PRE-EMPTION, 14 A. 333.

Sir Land.

Small Cause Suit.

Suit pending in Court of Subordinate Judge with Small Cause Court powers
Transfer to Munsifs Court Civil Procedure Code, s. i!5 Act IX of 1887
(Piovimial Small Cause Courts 1 Act), s.35. The plaintiff filed his suit as
Small Cause Court, case in the Court of a Subordinate Judge having Small
Cause Court powers. During the pendency of the euit the Subordinate
Judge took leave and his successor was not invested with Small Cause
Court powers. In consequence of this the District Judge made an order
under s. 25 of the Code of Civil Procedure, transferring all cases above the
value of Rs. 50 then pending before the Subordinate Judge in his capacity

A VII 133


Small Cause Suit (Concluded). PAGE

as a Small Cause Court, to the Mursif to be tried as Munsif's Court
oases. The Munsif had Small Cause Court powers up to R?. 50. The
plaintiff's suit was for Us. 69. The case was accordingly tried by the
Munsif and the plaintiff appealed, bis appeal coming before the same
Subordinate Judge before whom the suit was filed.

Held that, granting that the suit was a Small Cause Court suit (which was
not decided), whether s, 25 of the Code of Civil Procedure or a. 35 of the
Provincial Small Cause Courts Act (Act IX of 1887) was applicable, it
would remain throughout a Small Cause Court suit and be subject to the
incidents of such a suit. MANGAL SEN v. RUP CHAND, 13 A. 324 = 11
A.W.N. (1891) 96 ... 205-

Specific Relief Act (I of 1877).

(1) 8. 9 Suit for possession of land by perscn wrongfully ejected Joinder of
ether claims. A Court should in all cases in which ic applies give effect to
the provisions cf the fiest paragraph of s. 9 of the Specific Relief Aoc. 1877,
whether that section is expressly pleaded or not.

There is nothing to prevent a claim for damages and a claim for establish-
ment of title being joined with a claim for the relief provided for by the
above-mentioned section. RAM HARAKH RAI v. SHEODIHAL JOTI, 15
A. 384 = 13 A.W.N. (1893) 163 ... 965-

(3) S. 9 See POSSESSORY SUIT, 13 A. 537.
Stamp Act (1879).

(1) See STAMP DUTY, 13 A. 66.

(2) Soh. I, Art. I See EVIDENCE, 15 A. 56.
Stamp Duty.

(1) Stamp Promissory note not chargeable with duty of 6, 10 or 12 annas Svcli

promissory note written en impressed sheet of proper value bearing the word
"h und" Note duly stampea Act 1 of 1879 (tJiamp Aotjss .3. (10) 9,38,84,
57 Rules by Governor General in Council Notification No. V288 of 3rd
March 1882, Rults 3, 4, 6 Notification No. 2955 of 1st, December 1882,
Rule 6 A. The effect of Notification No. 2955 of the 1st December 1882.
amending tha Rules made by the Governor-General in Council under s. 9
of the Stamp Act (I of 1879) and published in Notification No. 1288 of
the 3rd March 1832, is not to prohibit all promissory rotes except those
chargeable with a duty of 6, 10 or 12 annas being written on impressed
sheets bearing the word "hundi." A Rult which says that certain promis-
sory notes shall be written on impressed sheets beating the wcrd"/ivi</i,"
oannot be interpreted as enacting that otber promissory notes shall not
be written on impressed paper of the proper value if it happens to bear the
word "hundi."

A promissory note for an amount not exceeding Rs. 200, payable otherwise
than on demand, but not more than one year after date, and requiring a
stamp of two annas, is duly stamped if written on an impressed sheet of
the value of two annas, though that impressed sheet bears the word
"hundi." RADHA BAI v. NATHU RAM, 13 A. 66 = 10 A.W.N. (1890) 233... 41

(2) Act VII o/ 1870 s. 5 Act VI of 1892, s. 3 Court-fee Finality of decision of

taxirg officer. Where an appellant whose memorandum of appeal had
been declared by the taxing officer of the Court to be insufficiently
stamped applied for relief under s. 3 of Act No. VI of 1892, and it was
found that the report of the taxing officer was erroneous and that the
correct stamp had as a matter of fact been put on the memorandum of
appeal, held, that the appellant was entitled to the relief sought notwith-
standing the provisions of s. 5 of Act No. VII of 1870. BADRI PRASAD
v. KUNDAN LAL, 15 A. 117 = 13 A.W.N. (1893) 45 ... 792

(3) Sae EXECUTION SALE, 15 A. 107.

(4) See LIMITATION, 15 A. 65.

(5) See SECOND APPEAL 13 A. 580.

Standing Crops.

(1) Attachment Small Cause COM t Standing cropi Immoveable Property Act
1 of 1866 (General Clauses Act) Civil Procedure CodeAct IX o\ 1887


Standing Crops (Concluded) PAGE

(Small Cause Courts Act) sch. i, (6). Standing crops are immoveable
property in the sense of the General Glauses Act (I of 1868) and of ol. (6)
of the second schedule of the Small Cause Gourts Act (Act IX of 1887),
and of the Civil Procedure Code. GHEDA LAL v. MULOHAND, 14 A. 30 =
1' A.W.N. (1891) 174 ... 39V


Statement made to the Police.

(1) Grim. Pro. Code, ss. 161 and 162 Statement made ly a roUntis to

police officer making an investigation Use of such statement to contradict
wiin(ssUse of statement against accused, A statement made by a
witness under s. 161 of the Code of Criminal Procedure to a police tfficer
investigating a case may be proved at the trial of such case to contradict
such witneos, the witness having been first crofs-examined on tbo point
in respect of which it is sought to contradict him. But where it appeared
that, but for the principal witness for the defence having been discredited
by means of proof of a previous inconsistent statement made by the said
witness before the investigating officer, the accused would have been
acquitted, it was held that this amounted to a using of such statement as
evidence against the acoused within the meaning of s. 162 of the Code of
Criminal Procedure. QUEEN-EMPRESS v. MADHO, 15 A. 25 = 12 A.W.N.
(1892) 220 ... 731-

(2) Sae GRIM. PRO. CODE, s. 16L, 15 A. 11,
Statutes, Construction of.

(1) See INSOLVENCY, 14 A. 145,

(2) See PRE-EMPTION, 13 A. 22J.

Stay of Execution.

Civ. Pro. Code. s. 546 Execution of decree Application for stay of sa'e of
immoveable propirty in execution of a monty-cicree -under afpeal. Ail
application under the third paragraph of s. 546 of the Cede of Civil Proce
dure to stay the sale of immoveable property in execution of a decree for
money against which an appeal has been filed must be made to the
Court which passed the decree and not to the appellate Court. IN THE
A.W.N. (1893) 99 ... 844=

Stay of Suit.


(2,> See MORTGAGE (GENERAL), 14 A. 162,

Step in aid of Execution.

(1) Execution of dezrte Act XV of (Limilaticn Act), sch. ii. art- 179 (4)
" Step-in-aid of execution" Application by ttanffeiee of decree for sale
of hypothecated property Ncn-iegistralicn of deed of astignmentCiv.
Pro'. Code, s. M2Act 111 of 1877 (Begistraticn c{), ss. 3, 17, 47, 49
Effect of subsequent registraticn, Oa the 13th November 1886, the
assignee of a decree for sale hypothecated property applied, under s. 232
of the Civil Procedure Code, for execution of the decree, but, abjection
being raised, that the deed of assigment had not been registered, subse-
quently applied for the return of the deed that it might be registered, and
it was returned accordingly. The deed was afterwards duly registered,.
the next applicaiiou for execution of the decree was made on the 25th.

He d (i) that the deed of assignment was not a document which comprised
immoveable property within the meaning of s. 49 of Registration Act III
of (1877), a decree for sale not being immoveable property as defined in s. 3

(ii) that consequently, although the assignee might not, under the latter
portion of s. 49, use the deed for the purpose of proving his title, there was
no provision in the Act saying that be should not take title, under the
deed ;

(iii) that the position of 'the assignee when be made his application on the
13tb November 1886 was tbat be was unable to prove that there was a title
by assignment in himself ; ,



Step in aid of Execution {Concluded). PAGE

(iv) that the subsequent registration cured the absence of registration on
the 13th November 1896, and, under s. 47 of the Registration Act, the
document thereupon had full effect, and related back to its execution ;

(v) that the application of the 13th November 1886 was A step-in-aid of execu-
tion of the decree within the meaning of art. 179 (4) of BCD, ii of the
Limitation Act (XV of 1877), and that the application of the 25th April
1889, was within time. ABDUL MAJID v. MUHAMMAD FAIZULLAH,
13 A. 89 = 10 A.W.N. (1390) 186 ... 65

(2) Civ. Pro. Oode, s, 206 Application to brine/ decree into conformity with

the judgment Execution of decree Limitation Act XV of 1877, sch ii,
art, 179 (4) ''Step-in aid o] execution-" The granting of an application
under e. 206 of the Civ. Pro. Code to bring a decree into conformity with
the judgment does not form the starting point of a fresh period of limita-
tion in favour of the decree-holder ; nor is such an application a " step-
in-aid of execution" within the meaning of art. 179, sch. ii of the Limita-
tion Act (XV of 1877), KALLURAI v. FAHIMAN, 13 A. 124=11 A,WN.
(1891) 32 ... 78

(3) Execution of decree Step-in- aid of execution Ampliation by decree-holder

for leave to bid at sale Act XV of 1877 (Limitation Act), sch. ii, No. 179,
cl. (4). The making of an application by the decree holder for leave to
bid at the sale in execution of his decree is "a step-in-aid of execution"
within the meaning of ol. (4), No. 179, soh, ii of the Limitation Act (Act
XV of 1877). BANSI v. 8IKREE MAL, 13 A. 211 -=10 A.W.N. (1890) 230. 132

Stolen Property,

Act XLV, of 1860 s. 411 Dishonest retention of stolen property Property
belonging to different owners Separate convictions. Where a person was
found in possession of stolen property identified as belonging to different
owners, but it did not appear that he had received such property at
different times. Held that he could not properly be tried and convicted
under s. 411 of tbe Indian Penal Oode separately in respect of the property
identified by the owner. QUEEN- EMPRESS v. MAKUAN. 15 A. 317 =
13 A.W.N. (189S) 101 ... 919

Striking of Execution Proceedings.

(1) See EXECUTION OP DECREE, 15 A. 49.

(2) See LIMITATION Act, Art. 179 (5), 15 A. 84.
Subordinate Judges Jurisdiction of.

Jurisdiction Dismssal of suit by Munsif preliminary point Ramand by
Subordinate Judge on appeal Fresh appeal before second Subordinate
JuJgi, who disagrees with the finding of the former Subordinatt Judge.
Where there are two Subordinate Judges in the same place, one oi such
Judges is not competent to overrule the decision of the other. The Court
is one, though there are separate presiding offiiers. KHAUAG PRASAD

BHAGAT v. DURDHARI RAI, 14 A. 348 = 12 A.W.N. (1892) 25 ... 591


(1) Justice and equity and good conscience Succession to ou'.casted Brahmin-
Brothers of deceased remaining in caste Sons of deceased by Bania widow.
Khuman, a Brahmin, lived with a Bauia widow, for which cffeuoe he
was outoasted. He left his family and his village and went to live else-
where, taking the widow with him. He had sons by her, and he and
his family lived as cultivators and acquired property. Khuman died in
his new home and left the widow and their sons in possession of the pro-
perty which he had acquired. This being so, the brothers of the deceased
Khuman sold the property which had been thus acquired by him to one
R.K. R.K. thereupon sued bis vendors and the surviving sons of Kbuman
by the widow, together with their mother and the widow of a deceased son
for recovery of tbe property:

Held that the eons of Khuman by the Bania widow with whom he had
been living ttnd their mother were entitled to remain in possession ot
the property acquired by Khuman as against the brothers of deceased who
had remained in oaste. RADHA KlSHEN v, RAJ KUAB, 13 A, 573 = 11
A.W.N. (1891) 157 362

<2; Bee WAJIB-UL-ARZ, 15 A. 147.



Succession Certficate Act, 1889. PAGE

Ss. 9 and 19 Order granting certificate conditioned on tlw filing of security
Appeal. Where on an application for a certificate of succession under the
Succession Certificate Act (Act VII of 1889) an order was made granting
the certificate conditionally on the applicant's furnishing security.
Held thst this was not an order "granting, refusing or revoking a certificate,"
within the meaning of p. 19 of the Act, and that therefore no appeal would
lie therefrom. BHAGWANI v. MANNI LAL, 13 A. 214 = 11 A.W.N. (1891)
45 ... 134

Suits Valuation Act, 1887.

8s. 4 and 10. See VALUATION OP SUIT, 15 A. 378.

Summary rejection of appeal.

See SECOND APPEAL, 15 A. 367.

Sae MAHOMEDAN LAW (WAKF), 15 A. 321.

Tender of Pardon.

Tender of payment.


(1) Bee APPEAL, 14 A. 500,

(2) See POSSESSORY SUIT, 14 A. 193.

(3) See RES JUDICATA, 13 A. 309.

Transfer of Appeal.

Transfer of Case.

Transfer of Property Act (IV of 1882),

tl) 8. 2 d). See USE AND OCCUPATION, 14 A. 176.

(2) SB. 3, 6 and 85. See MORTGAGE (PRIORITY), 13 A. 432.

(3) S?. 40, 58 (6>, 69. 100. See MORTGAGE (SIMPLE MORGAGE), 13 A. 28.

(4) S3. 52,82. See CONTRIBUTION, 13 A. 371.

(5) 8. 58. See BYE-BlL-WAFA, 14 A. 195.

(6) S. 59 Mortgage, equitable Deposit of tille-deels in Calcutta Immovedble

property in mofussil It is not necessary to the validity of a mortgage by
deposit of title deeds under s. 59 of the Transfer of Property Act (IV of
1862) that the property to which the title-deeds relate should be situated
within the limits of one of the towns where such mortgages are allowed.
MADHO DAS v. RAM KISHEN, 14 A. 238 = 12 A.W.N. (1692) 97 ... 52*

(7) 8s. 67. 86 See INTEREST, 13 A. 330.

(8) Ss. 68, 88. 89, 90. See MORTGAGE (SALE OF MORTGAGED PROPETY),

14 A. 513.


(10) S. 87 See REVISION, 14 A. 520.

(11) S. 88. See HINDU LAW (DEBTS), 15 A. 75.

(12) 8s. 88 and 89. See EXECUTION PROCEEDINGS, 13 A. 278.

(13) 8s. 88, 90. See EXECUTION OF DECREE, 15 A. 324.

(14) S. 90 Meaning of th* term "Legally recoverable." 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 one and the
same property, took cut execution on one bond atd brought to sale the
hypothecated property, which was purchased by a third party. The sum
for which that property was sold was only sufficient to satisfy one decree ;
and the decree-holder accordingly, within three years from the date when



Transfer of Property Act (IV of 1882) (Concluded). PAGE

the latter of the two bonds fell due, applied for a decree under s. 90 of the
Transfer of Property Act.

Held that under the above circumstances there was a balance legally recover-
able otherwise than out of the property sold and that the decree-holder
was therefore entitled to a decree under s. 90. BAGESHRI DIAL v.
MUHAMMAD NAQI, 15 A. 331 = 13 A.W.N. (1893), uo ... 928

(15) 8. 90. See EXECUTION OF DECREE, 13 A, 356; 13 A. 360,

(16) S. 100. See CO-SHABERS, 14 A. '213,

(17) 8. 135. - See MORTGAGE (CONDITIONAL SALE), 13 A. 102.

Transfer of suit.

Act X 0/1877, ss. 45 and 212, 244, clause (a) Suit for re'overy of immoveable
proptny and (or m'.tne profits Stp irate tfiils of the (wo claims Transftr
of suit by o-der of High Court Duty of Court to which the transfer is mide.
When a suit has been transferred by au order of the High Court from the
Court of a Subordinate Judge to the Court of the District Judge for trial,
it is the duty of the District Judge to try the suit himself, and he ia not
competent to transfer the suit back to the Court of the Subordinate

In a suit on title in which the recovery of immoveable property and mesns
profits are claimed the Court may, under s. 45 of the Gjcie of Civil Proce-
dure, order separate trials in respect of the claim for the recovery of the
immoveable property and in respect of the claim for meme profits.
Where under e. 212 of the Cade of Civil Procedure a Court in such suit passes
a decree for the property and directs an inquiry into the amount of
mesrte profits that direction as to tho inquiry into the amount of
mesne profits need not necessarily be contained in the decree. . FATIMA
BIBI v. ABDUL MAJID, 14 A. 531 = 12 A.W.N. (1892) 154 ... 710


Trispass Building on plaint'fj's land -Damages Mandatory injunction Suit
for fwth'.r damages Alleged disobedience of mandatory injunction Cause
of action Suit net maintainable. The defendant having built a wall on
the plaintiff's land, the plaintiff brought a suit in which be asked for
damages for the trespass, and an injunction, and a decree was passed for
damages and for a mandatory injunction directing the defendant within
two months to remove the wall, and to restore the plaintiff's premises to
their former condition. Two years subsequently the plaintiff brought
another suit for damages, alleging his cause of action to be the defendant's
disobedience of the mandatory injunction, and proving as damages that
people were deterred from becoming his tenants by fearing that, owing
to the defendant's previous action, the hillside on which the pliintifl's
premises were situate, was likely to fall. There was no structural or other
' damage done to the plaintiff's property other than that which was done

prior to the commencement of the previous suit.

Htld, that the suit would not lie for damages for non-compliance with the
mandatory injunction, to compel the performance of which the plaintiff
had his remedy in execution. JAWITRI v. H. A. EMILE, 13 A. 98 =
10 A.W.N. (1890) 232 ... 61


See HINDU LAW ( WIDOW), 15 A. 382.

Unconscionable Agreement.

See CHAMPERTY, 15 A. 352.

Use and Occupation.

Least Assignment ly the official Liquidator of lease held ijy a company in
liquidation Assignment net in writing registered Suit for rent Use oni
occupation. In the course of the winding up of a Compaay, the Official.
Liquidator, with the sanction of the Court, sold the remainder of a lease
for a long term of years reserving a rent, which was held by the Company.
No written assignment was. ever executed, but the Official Liquidator
banded over the lease to the purchaser, who entered into possession. In
a suit by the lessors against the purchaser for rent.



Use and Occupation (Concluded). PAGE

Held that whether the assignment was invalid because not in writing and .
registered, or whether it fell within s, 2 (a; of the Transfer cf Property
Aot (IV of 1682), the defendant, even if not liable as assignee in law of the
lease, was liable, for rent as for the use and occupation, and under such
circumstances tha rent fixed by the lease would be a fair basis for the
amount to be decreed. GAYA PRASAD v. BAIJ NATE, 14 A. 176 = 12
A.W.N. (1892) 25 ... 483

Using Forged Document.

Act XLV of 1860, ss, 363, 464. 470, 471, 23, 24, 25, 29 Using forgtd dccument
False certificate cf attendance at law lectures " Claim" " Property."
The term "claim" m s. 463 of the Indian Penal Code is not limited in its
application to a claim to property.

The term "property" m the eame section will cover a wiitten certificate.

It is cot necessary to constitute a forgery under s. 463 of the Indian Penai
Code that the property with which it is intended that the false document
shall cause a person to part should be in existence at the time when the
false document was made.

One S. B. presented to the Principal of Queen's College, Benares, a falsa
certificate purporting to have been granted by the Principal of Canning
College. Lucknow, to the effect that he had attended a certain proportion
of a certain first year course of law lectures, delivered at Canning College,
8. B. in fact never having attended such lectures. Had that certificate
been a true one it would have entitled 8. B. to attend a further course of
law lectures at any one of several associated institutions, amongst which was
Queen's College, Benaree, without attending or paying the fees for the
first course of lectures.

Ou presentation of the above certificate S. B. obtained permission to attend,
and attended, a course of second year lectures at Queen's College, Bsnares,
without attending or paying the fees required for the first year course.
After 8.B. had attended the above mentioned second year course of lectures
at Queen's College, Benares, he again presented to said false certificate
to the Principal of Qaeen's College with a view to his obtaining a con-
solidated certificate, which was necessary, as he alleged, to enable him to
become a candidate in the Judge's Court Pleadership Examination in

Huld that on both occasions, when he presented the false certificate to
obtain admission to the second year law class at Queen's College, Benares,
and again when he endeavoured by its use to obtain the consolidated certi-
ficate in order to gain admission to the Pleadership Examination in
Calcutta 8.B. was guilty of the offence provided for by s. 471 of Indian
Penal Code. QUEEN-EMPRESS V. 80SHI BHUSHAN, 15 A. 210=13
A.W.N. (li?93) % ... 853


Valuation of appeal.

See APPEAL, 15 A. 363-
Valuation of Suit.

(1) Act VII of 1870 (Court Fees Act , s. 7 Act VII 0/1687 (Suits Valuation Act),

ss. 4, 10 Adoption Suit 10 tet aside an adoption Valuation of suit.
The value for the purposes of jurisdiction ot 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 the value pur, upon his plaint by the plaintiff,
SHEO DENI RAM v. TULSHI RAM, 15 A. 378 = 13 A. W.N. (1893) 147 ... 960

(2) Act VII of 1870, s. 7, paia. 5 Act VII of 1887, s. QCourt-jee-Jnisdiction

Suit to eject a tenant at fixed rales Valuation of suit. A suit to eject
a tenant at fixed rates is a suit for the possession of land within the
meaning of paragraphs, s. 7 of the Courts Fees Act, 1870, and thevaluation
cf such suit for the purposes of Court fees and of jurisdiction is the value
of the subject-matter of the suit, that is to say of the tenant-right, not of
the land itself nor of merely one year's rent. BAM RAJ TEWARI v,
GIRNANDAN BHAGAT, 15 A. 63 = 12 A,W.N. (1892)240 ... 757

(3) See APPEAL, 15 A. 363.

<4) See APPELLATE COURT, 13 A. 320.


Vendor and Puchaser. PAGE

Verification of Plaint.

Civil Procedure Code, s. 52 Plaint, formoj verification of. In order to consti-
tute a proper verfioation of a plaint within the meaning of s. 52 of the
Code of Civil Procedure, it is necessary for the person verifying, if all the
facts or within his knowledge, to state distinctly that they are to his
knowledge true ; and if he has knowledge as to some and only information
and belief as to others, to state to which he speakn from his knlowledge
and to which from his information and belief. A verification in the
form : " To the limit (or extent) of my knowledge the purport of this is
true," is not suoh a verification as satisfies the requirements of s. 62 of
the Code. GlRDHARI v. KANAHIYA LAL, 15 A. 59 = 12 A.W.N. (1892) 235 75*

Vexatious Complaint.



See PRE-EMPTION, 15 A. 104.


(1) Wftjib-ul-arz, effect of as evidence of village cws'orn Wajib-ul-arz not signed by

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 154 of 155)