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perty to the extent of the shares of the minors cannot be held responsible
for the discharge of such illegal debts."

The evidence also shows that the estate when it came to Sada Nand
produced an income of about Es. 70 a month which, it is clear, could
have in no way sufficed to meet his expenses. It is not unimportant to
examine the precise character of the several transactions which took place
between the plaintiff's father and the defendants. The first of them was
on the 4bh April, 1880, and it was for the sum of Es. 699, and a portion
of it represented, we do not know how much of it, an antecedent debt

139



13 All. 223



INDIAN DECISIONS, NEW -SERIES



[Vol.



1891 due to some bankers of the name of Ananb Lai and others, but the residua

FEB. 4, is spoken of as "for my own private " expenses" and the rate of interest

was Rs. 1-8-0 per cent per mensem. Within a little more than four months

APPEL- from this date a second transaction is entered into in which the first bond

LATE [223] and interest due thereupon is consolidated, and a further cash ad-

ClVIL vance for " personal expenses " is taken amounting to Rs. 1,099. Then

' in April of the following year a sum of Rg. 700 is taken " for my own

13 A. 216= private expanses," and again on the llth August 1881, a sum of Rs. 499

11 A.W.N. is taken " for my own private expenses," and then at last on the 5th

<189l) 57. August, 1882, all these antecedent loans are lumped together, amounting

in all to Rs. 2,959-10-0. They are recited in the moatgage-deed, as also

a sum of Rs. 950. " to pay the money of a banker and for meeting the

partition and private expenses."

The learned Subordinate Judge, having all the facts before him and the
evidence of the witnesses on behalf of the plaintiffs, came to the conclusion
that the moneys and former advances covered by the bond of the 5th
August 1882, were borrowed for and devoted to immoral purposes. Then
comes the question, had the defendants notice that they were borrowed for
those immoral purposes. The learned Subordinate Judge has found that
they had, and I agree with him that the creditor, not only in this case, but
in ninety-nine cases out of a hundred, knows to a nicety the status and
character of the father and of the family, the number of his children, his
mode and way of life and the purposes for which he wants the money.
The money-lenders in the towns and villages of these provinces never lend
their money without the most thorough and searching inquiry into the
character and. antecedent of the borrower, and, if a person was leading
such a life as it is found that the father was leading in this particular
case, the presumption is overwhelming tha.t the money-lender who
lived within two doors of his knew well what his character was, why it
was he wanted money, and what purposes he required it for. 1 cannot
say that, upon such facts as those found by the learned Subordinate
Judge in this particluar case, the proof required from the son in a suit of
this nature, namely, that the debts wore incurred for immoral purposes
and that these purposes were well known to the party who lent the
money, was not supplied. At any rate, the learned Counsel on behalf of
$he creditor has not satisfied me that the learned Subordinate Judge had
no materials before him to warrant [224] his conclusions, and this
being so, the appeal is dismissed with costs.

I have to add that our decree will not be issued to or on behalf of
the plaintiffs-respondents until they have made goo3 the deficiency of
Rs. 415 which they should have paid as Court-fee for the suit in the
Court of first instance, as reported to us by our Registrar on the 13th
August 1888.

TYRBELD, J. I concur.

Appeal dismissed.



140



YII]



BAIJ NATH V. SITAL SINGH



13 All. 225



13 A. 224-11 A.W.N, (1891) 68.

APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Mahmood and
Mr, Justice Young.



1890

JUNEI.



BAIJ NATH (Defendant) v. SITAL SINGH (Plaintiff}.*
[21sfc June, 1890.]

Act XI\' ff 1873 I North-Western Provinces Land Revenue Act), ss. 166, 168 and ISO.
A<t XII of 1881 (North- Western Provinces Rent Act), s. Ill Interpretation of
statutes Meaning of the, t-rms "Patti" and "Patti of a mahal" Pre emption.

The expression " patti of a mahal " as used in g. 188 of the North- Western
Provinces Land Revenue Aot (Aot XIX of 1873) means a division of a mahal
distinct from the share of an individual co-sharer.

The right of pro emption, therefore, which is given by the above-named section
is not exerciseable on the sale merely of the share of an individual co-sharer not
amounting to such a division of a mahal.

Moreover, the provisions of s. 188 of Act XIX of 1873 do not apply to a sale
under s. 168 of the sama Act of land other than that in respect of which the arrears
whi&h it is sold to satisfy accrued.

Hence where the share of a co-sharer in an imperfect pattidari village, not
being the land in respect of which the arrears of rent, for the satisfaction of
which the said share is sold, are due, is sold under the provisions of s. 177 of the
North-Wentern Provinces Rent Aot (Aot XII of 1881), no right of pre-emption
can be claimed in respect of such sale.

So held by EDGE, 0. J., and YOUNG, J.

MAHMOOD. J.. contra. There being no statutory definition of the word "patti"
that word must be taken in its ordinary acceptation, and in that acceptation it
means the share of a pattidar, whether such share amounts to a definite division
of a mahal or not. The exigencies of the law of [223] pre-emption require
that in a. 188 of Act XIX of 1873 the word " patti " should be construed in its
broader signification as equivalent to any share of a pattidar,

The words of s. 168 which provide that land sold under that section is to be
proceeded against " as if it were the land on account of which the revenue is
dua under the provisions of this Aot " render the incidents of sales under s. 166,
including pre-emption, applicable to sales under s. 168, with the exception that
in such case only the defaulter's interest in the land sold passes by the sale.

Hence a right of pre-emption would accrue under s. 188 in respect of the com-
pulsory sale of any share of a co-sbaror though suoh share did not amount to a
"patti" in the sense of a definite division- of a mahal.

[R,, 1 Ind. Gas. 474 (475) : 4 N.L.R. 78 (79) = 8 Cr. L. J. 18 (19) ; 46 P.R. (1909) =
72 P.L.R. (1909) ; D., 27 A. 670 (677) = A.W.N. (1905) H9 = 2 A.L.J. 390.]

THE facts of this case are fully stated in the judgment of Mahmood, J.
Pandit Ajudhia Nath for the appellant.
Pandit Sundar Lai for the respondent.

JUDGMENTS.

MAHMOOD, J. The village Musafirpur consists of three pattis :
I comprising 6 bis. 13f biswansis
II 6 13J

III 6 13i

thus making up the aggregate of 20 biswas of the whole village which
constitutes one and the same mahal.



CIVIL.

13 A. 224 =
11 A.W.N.
(1891) 68.



'Second Appeal, No. 957 of 1888, from a decree of Rai Isri Prasad, Subordinate
Judge of Farakbabad dated the 31st March 1888, reversing a deoree'of Maulvi Muham-
mad Mazhar Huoain, Munsif of Kanauj, dated the 22nd December 1887.

HI



13 All. 226 INDIAN DECISIONS, NEW SERIES

1890 The mahal appears to have been divided only by imperfect partition,

JUNE 21. an( 5 the estate therefore is an imperfect pattidari zemindari tenure, and

one and the same wajib-ul-arz governs the mahal, and there is only one

APPEL- lambardar of the whole mahal. One Lala Singh owned a 1 biswa 12
LATE biswansis share in patti III, and in the a&mepaUi one Bhoja Singh owns
CIVIL, a share, whilst the plaintiff Sital Singh is a sharer in patti I.

In execution of a Revenue Court's decree for arrears of rent, held by
13 A. 224=> one Tulshi Earn against Lala Singh, the latter's whole share of 1 biswa 2
11 A.W.N. biswansis 5 kachwansis in patti III was sold by auction on the 20th August,
(1891) 68. 188 6 ( under s. 177 of the Bent Act (XII of 1881), and the highest bidder
was the defendant, Baijnath, whose bid of Ra. 100 concluded the sale. The
plaintiff-respondent. Sital Singh, joined Bhoja Singh in asserting their pre-
emptive right as [226] co-sharers in the mahal under s. 188 of the
Revenue Act (XIX of 1873), and deposited the sale-consideration. The
Revenue Court, however, rejected the plaintiff's pre-emptive claim and
confirmed the sale in favour of the defendant, Baijnath, by its order of the
17th September 1886.

The present suit was instituted on the 16th August 1887 by Sital
Singh and Bhoja Singh jointly in the Civil Court with the object of setting
aside the Revenue Court's order of the 17th September 1886, and obtaining
a declaration that the plaintiffs, by virtue of their right of pre-emption,
were entitled to the benefits of the auction-sale of the 20bh August 1886,
in preference to the defendant, Baijnath, purchaser at that auction, and
they also prayed for recovery of possession of the property sold on payment
to the defendant of Rs. 100 purchase-money already deposited by them.

The suit was resisted by the defendant-purchaser mainly upon the
ground that, the property in suit not being an entire patti of a mahal, but
only a portion of a patti, no right of pre-emption accrued in favour of the
plaintiffs by the auction-sale of the 20 th August 1886, and that the plain-
tiffs could not maintain the suit as they had no pecuniary means to
purchase, their own property being under mortgage.

The Court of first instance held that s.177 of the Rent Act read
with s. 188 of the Revenue Act restricted the right of pre-emption in
respect of auction- sales to entire pattis and did not extend to cases such
as the present in which only a portion of the patti was sold. For this
view that Court relied upon a Division Bench ruling of this Court in
Narain Singh v. Muhammad Faruk (1) and dismissed the suit. Upon
appeal, the lower appellate Court, distinguishing the case from that ruling,
held that the pre-emptive right provided by s. 188 of the Revenue Act (XIX
of 1873) applied also to auction-sales of portions of pattis, and, that the
suit was maintainable by Sital Singh as co-sharer of patti I, but that the
other plaintiff, Bhoja Singh, being a co-sharer in patti III, of which a
portion was sold, was not entitled to pre-emption, [227] as he might
have saved the property from sale by paying up the money due under
Tulsi Ram's decree for arrears of rent. The lower appellate Court,
therefore, dismissed the suit so far as Bhoja Singh was concerned,
but decreed it fully in favour of Sital Singh alone.

From the lower appellate Court's decree two appeals have arisen, one
by the plaintiff, Bhoja Singh (S. A. No. 998 of 1888), and the other
preferred by Baijnath, defendant, upon the contention, first, that co-sharers
have no right of pre-emption in respect of sales under the Rent Act ;
secondly, that s. 188 of the Revenue Act applies only to sales of entire

(1) l A. 277-
142



YII]



BAIJ NATH V. SITAL SINGH



13 All. 228



pattis; and, that eince the lower appellate Court has found that one
of the plaintiffs, Bhoja Singh, was not entitled to pre-emption, it should
also have held that the plaintiff-respondent, Sital Singh, had also forfeited
his right of pre-emption by joining the aforesaid Bhoja Singh as plaintiff
in the suit.

In dealing with this contention it is necessary to consider, in the first
place, whether under the general law. as distinguished from specific legis-
lative enactments, any right of pre-emption arises in respect of compulsory
sales, such as those which take place by public auction in execution of
decrees or for arrears of Government revenues. I am of opinion that this
question must be answered in the negative, whether the right of pre-
emption in respect of such sales is claimed under the Muhammadan law,
the compact; of the wajjb-ui-arz, or local usage and custom. Such sales
are not the result of any private contract to which the person whoss pro-
perty is sold is a party. They are the result of an authority conferred
by the Legislature upon the Courts for the purposes of awarding remedies
against those who have failed to perform their pecuniary obligations.
But for the specific interference of the Legislature such a power to sell the
property of the debtor against his will could not be exercised by the Courts
or the revenue authorities.and it would appear from general principles that
when, in so interfering, the Legislature has framed specific rules, statute-
law takes the place of general law, if any, in pari materia and excludes
the application of the ordinary law of sale on account of the exigencies
[228] of procedure. The object of such sales is to secure satisfaction of
debts by well-defined means and methods calculated to achieve the object
with certainty and expedition, and it seems clear that the object would be
frustrated if such sales were hampered by the rules which govern private
sales. The Legislature, however, in so interfering has not been headless
of the right of pre-emption. Under the rules of procedure, compulsory sales
take place after a public proclamation, which being an act of the Court
or revenue authority, is taken to be sufficient notice to the pre-emptora,
along with the public at large, to come forward and purchase the
property ; and it seems reasonable to suppose that those who do not
appear to bid at the auction-sale have no wish to purchase the property.
These considerations seem sufficient to render the ordinary law of pre-
emption inapplicable to sales by public auction in execution of decrees,
and this view has received judicial sanction.

So long ago as 1854, three learned Judges of the late Sudder Dewanny
Adaiulut of Agra, in Chikhoree Singh v. Hukeem Nujuf Ali (1), concurred
in observing that " tbe right of pre-emption supposes an act of volition on
the part of the vendor, a principle inapplicable to a transaction of com-
pulsory sale made by any authoritative order or injunction, and that the
incident of a public sale creates a new element beyond the ordinary
scope of such right." Soon after, in 1855. the same Court, in Mudar
Buksh v. Muhummud Hussun (2), took occasion to point out that their
ruling was not to be understood to have repudiated the right of pre-emp-
tion in respect of compulsory sales when such right had been specifically
created by statute. Eeferring to the earlier case the learned Judges said :
41 the obvious intent of the whole judgment is that ordinarily the right of
pre-emption is dependent on the voluntary character of the transfer made
by the owner, but that Act I of 1841 has extended the principle to sales
in execution of decrees made under the provisions of that Act, which are of



1890

JUNE 21.

APPEL-
LATE
CIVIL.

13 A. 224=
U A.W.N.
(1891) 68.



(1) N.W.P.8.D.A.R. (1854), p. 40.



(2) N.W.P.8.D.R. (1855), p. 597.



143



13 All. 229



INDIAN DECISIONS, NEW SERIES



1890 a special nature, applying only to a particular class of tenures, and that they
JUNE 21. cannot be held to include sales of portions of zumeendaree tenures, and
that [229] sales of the latter description were not, either according to law or
APPEL- the custom of the country, subject to the law of pre-emption." The same
LATE view was adopted in SahKoondun Lallv. Ram Buksh (1) ; and in Baboo
CIVIL R am Narain Singh v. Syud Sadik Ally (2), a Full Bench of the same
Court with a majority of three out of five Judges held that where
13 A. 224= the sale was a compulsory one no claim of pre-emption could ba founded
11 A.W.N, either on the wajib-ul-arz or the Muhammadan law, and in the case
(1891) 68. before them, the mauza and holding having been declared to be separate
mahals, the plaintiff's claim of pre-emption was untenable on either of the
grounds on which it was laid. The same rule was adopted in Seth Luchmee
Chund v. Mussumat Kesur Buhoo (3) where it was again pointed out
that the rule was not to be understood as negativing the right of pre-
emption in respect of compulsory sales where such right has been
created by special enactments such as Act I of 1841. A similar view was
adopted by the Calcutta High Court in Abdobl Juleel v. Khellat Chunder
Ghose (4) where the learned Judges, with reference to the ground taken
by the special appellant that he was entitled as a co-sharer under the
general law of pre-emption to have the property sold to him, observed
that where property is sold by public auction at a sale in execution of a
decree and the neighbour and partner has an opportunity to bid for the
property as other parties present in Court, the ordinary law of pre-emption
cannot apply to such sales. This ruling was followed by the same Oourt
in the later case of Shaikh Ferasut Ali v. Ashootosh Boy Singh (5), also in
Sheikh Nuzmoodeenv- Kanye Jha (6), where the rule was carried further
by holding that even where the right of pre-emption between two co-sharera
was based upon an express ikrar or agreement between them, sale in
execution of a decree could not render the right enforcible, as it was the
act of the Court, though such right might have been enforced if the
transfer had been by private sale.

[230] It may therefore be taken as a rule of law settled by a long and
uniform course of decision that a compulsory sale, such as a sale in exe-
cution of a decree of a sale under an authoritative order of the revenue
authorities for arrears of Government revenue, does not render pre-emp-
tion enforcible, whether such right is claimed under Muhammadan law,
the terms of the wajib-ul-arz, or on the ground of local custom or private
contract ; but that such compulsory sales being the creation of statute-
law do furnish occasion for the exercise of the pre-emptive right where
such right is provided, subject to the rules and restrictions prescribed by
those legislative enactments themselves. Thus, for sales in execution of
Civil Courts' decrees, we have the provisions of s. 310 of the Code of Civil
Procedure (Act XIV of 1882) which lays down that " when the
property sold in execution of a decree is a share of undivided im-
moveable property, and two or more persons, of whom one is a co-
sharer, respectively advance the same sum at any bidding at such sale,
such bidding shall be deemed to be the bidding of the co-sharer, "
this provision being a reproduction, in a very amplified form, of the pro-
visions of s. 14 of Act XXIII of 1861, which was limited to sale of shares
of a pattidari estate as defined in s. 2 of Act I of 1841. Again, in respect"



(1) N.W.P.S.D.A.B. (I860), p. 19i.
(3) N W.P.S.D.A.R. (1865), p. 139.
(5) 15 W.R.G.B. 455.



(2) N.W.P.S.D.A.B. (1863), Vol. 1, p. 325.
(4) 10 W.B.G B. 465 = 1 B.L.R.A.G. 105.
(6) 1 Marshall 555 = 2 Hay 651.

144



YII]



BAIJ NATH V. 8ITAL SINGH



13 All 232



of sales in execution of the revenue Courts' decrees we have special provi-
sion made by s. 177 of the N.W.P. Bent Act (XII of 1881) which runs
as follows :

" If it apt-ear to the Board that the debt cannot be recovered under
s. 174, or if the sale of the property appear to it advisable on other grounds,
it shall order the property to be sold, in which case the sale shall be made
under the rules in force for the sale of land for arrears of land revenue,
but without prejudice to the incumbrances (if any) to which such property
may be subject."

In tbis case we are directly concerned with this section, because the
auction-sale of the 20bh August 1886, in respect of which pre-emption is
claimed took place in execution ol a revenue Court's decree, and, if this
section does not confer a right of pre-emption upon the plaintiffs, the suit,
as I have already explained, could not [231] be maintained upon the ground
of the general law of pre-emption going beyond the scope of the legislative
enactments. Now it is clear that the terms of the section do not in
themselves contain any words referring to the right of pre-emption, and
if any such right is to be imported it can only be by a liberal interpretation
of the words " the sale shall be made under the rules in force for the sale of
land for arrears of land revenue," as they occur in the section. The first
thing then is to determine whether the phrase " the rules in force " includes
legislative provisions such as those found in the Land Revenue Act (XIX
of 1873) as to sales of land for arrears of land revenue. This point was
considered by a Bench of this Court in Narain Singh v. Muhammad
Faruk (1) where the learned Judges observed : " The only reference to pre-
emption in Act XIX of 1873 is to be found in s. 188. It is contended that,
as the sale is concluded before the claim to pre-emption can be made, the
claim itself is not made under any rules for the conduct of sales.
We should, however, be disposed to disallow this contention. It is not, how-
ever, necessary on the present occasion to determine the point." In the
case now before us the question does require determination and I have no
hesitation in holding that the word "rules" as it occurs in the section
includes legislative enactments such as those contained in Act XIX of
1873, and that they refer to and include such provision as that enactment
makes in respect of the manner in which sales in arrears of Government
revenue are to be held and conducted, including the exercise of the right of
pre-emption, which forms part and parcel of the matters entrusted to the
officer conducting the sale. In Syud Abdool Jaleel v. Kalee Koomar
Dutt (2) the High Court of Calcutta held that the Court executing a decree
had no authority to substitute the claimant of pre-emption, under s. 14, Act
XXIII of 1861, for the actual purchaser without the consent of the latter,
and that a party claiming a share under the section cited is simply in the
position of a party who having a right of pre-emption has observed the re-
quisite formalities to enable him to assert the right and must resort to a civil
suit to obtain the benefit thereof. This view of the law was expressly dissent-
ed from by a [232] Division Bench of this Court in Tasaduk Ali v. Muksud
Ali (3), where the duties of the officer conducting an execution- sale in which
claims for pre-emption under s. 14 of Act XXIII of 1861 are made, were
considered, and it was laid down that it is incumbent on an officer
conducting a sale in execution of a decree of land which is share of a
pattidari estate paying revenue to Government, as defined in s. 2 of Act



1890

JUNE 21.

APPEL-
LATE
CIVIL.

131. 224 =
11 A.W.N.

(1891)68.



(1) 1 A. 277.



A VII 19



(3) N.W.P.H.C.B. (1874), p. 372
145



(2) 6 W.R. Mia. Rul, 3.



13 All. 233



INDIAN DECISIONS, NEW SERIES



[Vol.



1890

JUNE 21.

APPEL-
LATE
CIVIL,

ISA. 224 =

11 A.W.N,

(1891) 68.



I of 1841, to take notice of a claim made by a person under the provisions
of s. 14 of Act XXIII of 1861, and to receive the purchase- money as a
fulfilment of the conditions of the sale, subject to any question which
may be raised by any party interested in the sale as to the claimant's title
to advance the claim. The learned Judge said : " If the person at whose
bid the property has been knocked down pays in the balance of the
purchase-money as well as the claimant under s. 14, Act XXIII of 1861,
the Court must pass orders for the acceptance of the money paid by the
one, and for the return of the money deposited by the other. If, then, the
conditions of sale are fulfilled by the claimant only, we see no reason why
the sale should not be confirmed in his favour, if the Court be satisfied that
he has established his right to advance the claim ; and, on the like hypothe-
sis, if there be a contention between a bidder and the claimant as to the right
of the latter to advance the claim.we see no reason why the Court should
refuse to adjudicate the question and to pass orders accordingly. There is
nothing in the provisions of s. 14, Act XXIII of 1861, which discharges
the Court executing the decree from the obligation of recognizing the right
thereby given. If, after inquiring into the claim, the Court executing the
decree considers the claimant's right doubtful, it would confirm the sale in
favour of the bidder, leaving the claimant to his remedy by suit, but, if
the right of the claimant be clear, the Court executing the decree!is as
much bound to give effect to that right as it would be if the question came
before it in a regular suit."

In this view of the law I fully concur, and, applying it to the present
case, I bold that the plaintiffs were entitled to ask the Court executing the
decree to recognize them as pre-emptors in respect of [233] the auction



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 23 of 155)