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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 26 of 155)
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(ID ,, 6 13i

(III) 6 13i



20 biswas.



It is further admitted that the tenure of the village is " Imperfect
pattidari." In patti (III) Lala Singh held a share of 1 biswa 2 biswansis,
5 kachwansis. We are not informed whether this share was held by him
in distinct severally or conjointly with other co-sharers in patti No. Ill,
but in any case this share was sold at auction on the 20th August 1886,
in execution of a decree of a Kent Court, under s. 177 of Act XII of 1881,
and s. 168 of Act XIX of 1873 (apparently).

It will be remembered that such sale being in execution of a Bent
Court's decree, does not prejudice the rights (if any) of previous incum-
brancers, and in this respect differs from a sale under s. 166 of the Land
Eevenue Act (XIX of 1873), and agrees with a sale under s. 168 of that
Act.

The question now before us is does Lala Singh's share (assuming it
to be a separate share) of 1 biswa 2 biswansis 5 kachwansis in the third
patti of mauza Musafirpur come within the meaning of the expression "patti
of a mahal " in s. 188 of Act XIX of 1873. Bearing in mind that Musa-
firpur is an imperfect pattidari village, I think the answer must be in
the negative. For even if 1 biswa 2 biswansis 5 kachwansis could perfectly
be called a patti, or the patti of Lala Singh, it would be the patti of a patti
and the language of s. 188 ought to run "When any land, &c., &c., is
a patti of a mahal or the patti of a patti of a mahal." Does the language
[255] of the Land Bevenue Act really justify such an interpretation ? If
the property to be sold had been either of the three great pattis into
which this village is divided, then the language of a. 188 would clearly
be accurate, such a sale would be " the sale of a patti of a mahal." In
the present case however we are asked to interpret the words patti " of a
mahal " to mean "patti or part of a patti of a mahal"

But it was contended that in a pattidari village (perfect or imperfect
pattidari} the word patti also meant the holding of any of the pattidars
and therefore Lala Singh's share of 1 biswa 2 biswansis 4 kachwansis
might be called his patti, he being a pattidar. To this it was replied

159



13 All. 2S6



INDIAN DECISIONS, NEW SERIES



[tfol.



1850 firstly, that in that case the Urdu word patti was used ambiguously in

JUNE 21. the Act to mean two things, and secondly, that in its second sense the

word is simply equivalent to share, and that if the Legislature had meant

APPEL- to include a pattidar's share in the words " patti of a mahal " in s. 188,

LATE- Act XIX of 1873, ib could and would have said so, just as it does speak

GiviL ^ " anv share in any other mahal " in s. 168 of Act XIX of 1873.

Again s. 150*of Act XIX of 1873 specifies the various remedies to be

ISA. 221= had against revenue defaulters. It provides eight processes for enforce-
11 A.W.N. ment of the Government demand. Some of these deal with the share of
(1891) 68. a defaulter, some with the patti or mahal in respect of which the arrear
accrued.

The section draws a sharp distinction between the words mahal, patti,
share, and this corroborates me in the opinion that the words "patti of a
mahal " in s. 188 are not intended to include the share of a co-sharer in a
patti of an imperfect pattidari mahal.

If the village had been a perfect pattidari one, so that Lala Singh's
share might have been held entirely in severalty without any share of the
joint lands ; then " patti" might have included Lala Singh's share, though,
even then, the language of the Act could not be regarded as free from
ambiguity. But where the village is one of zamindari tenure or of
imperfect pattidari (as here) the word pattic&unob be treated as synonymous
with share. In conclusion I may briefly point out that a sale under
s. 168 is merely [256] a sale of the defaulter's right, title and interest, and
does not pass a title clear from prior inoumbrances. It may well be that
this consideration influenced the Legislature in omitting to allow a right
of pre-emption in sales under s. 168.

In my opinion s. 188 of Act XIX of 1873 has no applicability to sales
under s. 168 of that Act.

On these grounds I would disallow the claim of Sital to pre-emption
and would decree the appeal of the purchaser Baijnath with costs.

Appeal decreed.



13 A. 256 = 11 A.W.N. (1891) 59.

APPELLATE GIVIL.
Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Mahmood.



BASDEO (Plaintiff) v. GHARIB DAS (Defendant) .*

[7th November, 1890.]

Hindu LawSti:cession to the "gaddi" of temple Nature of evidence require i to prove
title to succeed- Explanation of terms " nihang " and " grihast."

Per EDGE, C.J.. and MAHMOOD, J. The question who is entitled to succeed
to the office of a deceased Mahant must be decided in each case upon the evidence
as to the customs relating to succession observed by the particular sect to which
the deceased Mahant belonged. It is necessary for the person claiming a right
to succeed as Mahant to establish that right by satisfactory evidence. He can-
not derive any advantage from the weakness of his opponent's title.

Per MAHMOOD, J. It was necessary for the plaintiff in this case to prove
that he was " Nihang, " as distinguished from " Grihast, " which he failed to
do. Meaning of the terms " Nihang " and Grihast " explained.

Oenda Puri v. Chhatar Puri referred to (1).

First Appeal No. 28 of 1890 from a decree of Babu Piari Lai, Subordinate Judge
of Meerut, dated the 3rd December 1888.

(1) 13 I.A. 105,

160



YII] BASDBO V. GHAE1B DAS 13 All. 258

THE facts of this case sufficiently appear from the judgment of 1890
Edge, C. J. Nov. 7.

Mr. C. H Hill and Pandifc Sundar Lai, for the appellant.

APPEL-
Mr. T. Gonian and Babu Sirish Ghandar Base, for the respondent.

Li A J.EI

JUDGMENT. CIVIL.

EDGE, C. J. This appeal arises oub of a suit that has been heard . i[~~M6=>
and determined bv the Subordinate Judge of Meerub, in which ha dismiss- < N
ed the suit with costs. The plaintiff brought his suit to re-[257]cover i*oq\\ 59
possession of a certain property attached to the gaddi of Baksar. He
alleged that, according to the custom which governed the succession, he
was the person lawfully entitled to the gaddi and to the title of Mahant,
and, as such, to the property in suit. The custom which he alleged was
that the Mahantto* the time being had the power, without consultation with
or interference by any one, to appoint bis successor. His case was that
he was so appointed by the deceased Mahant Ganga Prasad who died on
the 26bh February 1887. The plaintiff also alleged that the defendant
had taken possession of the property attached to the gaddi and kept him,
the plaintiff, out of possession of it.

OQ the other hand, the defendant, by his written statement, denied
that the plaintiff had been nominated by Ganga Prasad as his successor ;
he alleged that the plaintiff was a married man and as such incompetent
as a candidate for nomination ; and he went on to allege that he himself
had been appointed to succeed Ganga Prasad, and that such appointment
was made with the consent of the Mandoldhari Mahants and that he had
been invested by Ganga Prasad with the cap and necklace, and that he
had performed the obsequies of Ganga Prasad, and in paragraph 5 he
in fact traversed the custom alleged by the plaintiff. He therein says :
" Succession to the gaddi depends upon the consent of the Panchayati
Mahants and very exalted Mandaldhari Mahants so that the plaintiff has
no right to get the property, nor is there any cause of action for the
present suit." There were other questions raised in the written statement
which it is not necessary, in the view that I take of the case, further to
refer to.

Now the position is this : The plaintiff claims a decree to eject the
defendant from the property in suit. Admittedly the plaintiff never
was in possession ; and, admittedly, immediately after the death of Ganga
Prasad, the defendant took possession and has continued in possession
down to the present time. Under those ciicumstances it is for the plaintiff
to prove a title which entitles him to have the defendant ejected from the
property and to get possession of the property himself.

[258] We have been referred to no case which is precisely in point,
I mean by that, .no case in which the question as to how the succession
to the gaddi of a monastery of frhis particular persuasion of Nanakshahis
has been decided. So far as we know, that is a question which has never
been legally decided. We are bound, therefore, to see whether any
custom has been proved, which would, on the facts as to nomination
alleged by the plaintiff, if we were satisfied with his evidence as to the nomi-
nation, entitle him to a decree. The law as laid, down by their Lordships
of the Privy Council in the case of GendaPuri v. Chhatar Puri (1) applies
in our opinion generally to this case.



A vii ai



(1) 13 I. A. 105.
161



13 All. 259



[Vol.



1890

NOV. 7.

APPEL-
LATE
CIVIL.

13 A. 256 =

11 A.W.N.

(1891) 59.



I propose to refer to the evidence of the witnesses called on behalf of
the plaintiff, to whose evidence our attention has been called by his
Counsel and vakil. There may have been other witnesses called on his
behalf in the Court below whose evidence the plaintiff did nob consider it
necessary to translate or print, and whose evidence certainly has not been
relied upon in the course of the argument of this case.

[The remaining portion of the judgment of Edge, C. J., has not been
reported here as it deals exclusively with the effect of the evidence in the
case. The conclusion arrived at was that the plaintiff-appellant, on the
evidence adduced by him, had failed to prove his title and the appeal
should be dismissed W.K.P.]

MAHMOOD, J. I agree so entirely in the estimate of the evidence
which the learned Chief Justice has expressed in his judgment, that it is
not necessary for me to say anything more than this, that on all points
connected with the question of onus y>vbandi, the proof of title rested with
the plaintiff. I concur with him also in holding that the plaintiff has
failed to prove his own case. The learned Chief Justice has already refer-
red to the case of Genda Puri v. ChhatarPuri (1) and out of the judgment
of their Lordships of the Privy Council I wish enly to read two short pas-
sages at pages 105 and 106. The passage says : " In determining who is
entitled to succeed as Mahant in such case as the present, the only law to
[259] be observed is to be found in custom and practice, which must be
proved by testimony, and the claimant must show that he is entitled
according to custom to recover the office and the land and property belong-
ing to it. This has been laid down by this committee in several cases.
The infirmity of the title of the defendant, who is in possession, will not
help the plaintiff, as the Subordinate Judge seems to have thought."

In this case when I was listening to the learned argument addressed
to us by Mr. Hill, the learned Counsel for the plaintiff-appellant, I confess
I did feel that there may have been as great a difficulty as the learned
Counsel imagined in the title of the defendant. However, I felt exactly as
the learned Chief Justice has now represented in his judgment, that it is
for the plaintiff to prove his title, be the title of the defendant as feeble as
possible. This is all I wish to say as to the reason of my concurrence in
the judgment of the learned Chief Justice.

There is, however, one matter upon which I wish to express a few
words, and this is that I take it that both Mr. Hill on behalf of the
plaintiff-appellant, and Mr. Conlan on behalf of the defendant-respondent
concede, as common ground between them, that in order to qualify a
Chela to succeed to the deceased Ganga Prasad, it was necessary that the
successor should be Nihang, as distinguished from Grikast. His Lordship
the Chief Justice has rightly observed that the exact distinction between
these two terms is not a necessary matter for decision for the purposes of
this case. I do feel that myself ; but I may say that, whilst fully con-
curring with that, I have no doubt [even after having heard the learned
philological argument addressed to us by Pandit Sundar Lai in his reply
on behalf of the plaintiff appellant] that Grihast means a householder,
that celibacy for purpose of the definition of Nihang is only a part of the
qualification, a part of the signification, of the term. The word Nihang
according to Shakespear's Dictionary at p. 2099 means: "Naked, free
from care." I must then remember also what Fallon in his well-known
Dictionary says as to the meaning of the word Grihast, from which the

(1)13 I. A. 105.
162



YII]



MURTAZAI BIBI V. JUMNA BIBI



13 All. 261



word Grihasti is derived by the [260] addition of the appendix " i." It
means domestic or wordly affairs ; and, as is usal with this learned
author, he cites a well-known Hindi proverb showing what in common
parlance the word meant in the language of the country. This pro-
verb is : Joga asan Grihast kathin ; Easy a holy friar to be, hard house-
affairs and husbandry.

I have absolutely no doubt that the translation of the word Grihast
as given above is in accordance with the manner in which the word is
used in the language of the country, and it does not necessarily mean a
married man, nor is it limited to the fact of the taking place of any mar-
riage ceremony legitimate or illegitimate. It means a householder at large ;
it means a householder as distinguished from a wanderer ; an Arya from
a nomad. It is important to know that a person who is a Grihast can
never be a Nihang according to the proper signification of these terms.

The proverb quoted above has especial application here, because on
the evidence in this case it clearly follows that the plaintiff was not a
wanderer on the face of the world in order to be a Nihang, but he was a
householder. It has been attempted to be shown that he was a married
man ; that he was keeping a woman. That evidence I do not attach any
importance to ; still there is enough to show that he was not a Nihang.

One word more as to the word Grihast, and I refer to the Dictionary
of Shakespaar again at page 1700 where he says : " Grihast means a
householder, a man of the second order, or he who, after having finished
his studies and been invested with the sacred thread, performs the duties
of the master of a house and father of family ; a peasant ; a husband-
man."

It mast be clearly understood that the meaning of the word is
somewhat similar to the Koman expression paterfamilias. In order to
be paterfamilias, it is enough to be the head of a family, to be the manager
of affairs in the household, and by analogy this is all that the Hindu law
means by the word Grihasti, notwithstanding the contention of Pandit
Sundar Lai who drew my attention to [261] Chapter 3 of Manu Smriti.
It is needless for me to dwell upon that chapter, but I have no doubt
that there is nothing there either as to the meaning of the word Nihang
or as to the signification of the term Grihasti.

Holding these views then as I do, viz., that the plaintiff has failed
to prove that he is a Nihang, but that he is a Grihast, I have nothing
more to say than that I entirely agree in all that the learned Chief Justice
has said upon the evidence, and the decree which his Lordship has made
in the case. Appeal dismissed.



13 A. 261 = 11 A.W.N. (1891) 13.

APPELLATE CIVIL.
Before Mr. Justice Straight and Mr Justice Tyrrell.



MURTAZAI BIBI AND ANOHER (Defendants) v. JUMNA BIBI
AND OTHERS (Plaintiffs).* [8th December, 1890.]

Muhammadan law Wakf Construction of document.

Where a Muhammadan of the Bbia sect executed a document purporting
to come into operation after bis death, which document provided in a most
complete manner of the devolution of his property, with the intention apparently

* First Appeal, No. 143 of 1888, from a decree of Babu Nilmadhab Bai, Subordinate
Judge of Gorakhpur, dated the 29th June 1883,

163



1890

Nov. 7.

~
APPEL-



LIVID.

13 & 236 =
n A.W.N.
(1891) 59,



13 All. 262



INDIAN DECISIONS, NEW SERIES



1890

DEC. 8.

APPEL-
LATE
CIVIL.

ISA. 261 =
11 A.W.N.
(1891) 13.



of preserving the estate in perpetuity intact under the headship of some male
member of the family, with provision byway of allowance for the other members,
and of maintaining the dignity of the riasat, and in wbioh no express mention
of any sort of dedication of the property to charitable purposes was made, though
there was some incidental reference to certain religious duties.

Held that such a document could not be construed as creating a wakf. Though
it was not impossible that a document creating a wakf might contain provision
also for the family of the settler, the dedication to onaritable uses beiug post-
poned, yet here there was not even an ultimate dedication of the property to
charitable uses, but the object of the executant was evidently merely the main-
tenance of the family estates and of the dignity of the riasat.

Sheik Mahomtd AJisanulla Chowdhry v. Amarchand Kundu (1) followed.
Ranee Khvjooroomssa v. Musmmi<t Roushun Jelian (2) and Nizamuddin Qulam
v. Abdul Ga/ar (3), referred to.

[R., 8 0-C. 379 (383).]

[262] THE parties to this appeal were Muhammadans of the Shia
sect whose relationship to one another will be apparent from the accom-
panying genealogical tree :

Bhasharat Ali. cb. March 1819.
I



!
Mehdi Husain, Imam Ali
ob. 1848 =Musamn
| wido
Muhammad
Sajjad.


, ob. 1855 Eurban Ali, O T >.
iai Bandi, October 1867.

!


1

Musammat Zainab.
1
Rabat Hoftain, ob.
1876.




1


I- 1 I

Husaini, = Imdad Rahimar. Muhammad
Husain. Hadi, ob. June
| and 1875 = Mu-
Ghulam Husain. sammat Jumna
widow 'plain-
tiff).

1

Akbari.


1

Muhammad
Easim, ob.
December
1886 = Mur-
tazai Bibi,
widow- (de-
fendant).


1

8akina = Mu-
hammad
Sajjad (de
feudant.)



The plaintiff, Musammat Jumna, brought her suit in the Court of
the Subordinate Judge of Gorakhpur for her share by inheritance of the
property of her deceased husband, Muhammad Hadi, who died in 1875,
alleging that she had on various pretexts been put off and kept out of
her rights by her brother-in-law, Muhammad Kasim. The other two
plaintiffs were pleaders to whom the principal plaintiff had sold a portion
of her share of the property in suit to provide herself with funds for
carrying on the litigation. The suit was resisted by the defendants,
the widow and sister of Muhammad Kasim, mainly on the following
grounds, viz., that Musammat Jumna, the plaintiff, was not the widow
of Muhammad Hadi, and that by reason of a deed executed by one Bash-
arat Ali, the common ancestor of both the parties, in 1848, the plaintiff
could have no claim to the inheritance so long as there were male descend-
ants of Basharat Ali, living. The defendants also alleged that the plaint-
iff, Musammat Jumna, had acquiesced in the transfer of the property
in suit to Muhammad Kasim on the death of Muhammad fladi, that both
Muhammad Hadi and Muhammad Kasim had dealt with the property
as their own, and that Musammat Jumna had never lived in the house
of Muhamnmd Hadi. The Subordinate Judge found on these pleadings
that the plaintiff, Musammat Jumna, was [263] lawfully married to
Muhammad Hadi, and that the document relied upon by the defendants



(1) 17 I.A. 38.



(2) 3 I.A. 291.

164



(8) 13 B. 261.



YII] MURTAZAI BIBI V. JUMNA BIBI 13 All. 264

was a will, under which, as the conditions of it had come to an end, nobody 1890
could take anything, and that therefore the position of Muhammad Hadi's DEC. 8.
heirs was exactly what it would have been according to Muhammadan law
at the date of his decease in June 1875. The Subordinate Judge accord- APPEL-
ingly passed a decision in favour of the plaintiffs. The defendants then LATE
appealed to the High Court. CIVIL.

Mr. D. Banerji, Mr. Abdul Majidl&nd. Maulvi Mehdi Hasan for
the appellants. 13 A. 261 =

Mr. W. M. Colvin and Mr. C. H. Hill, for the respondents. 11 A.W.N.

(1891) 13.
JUDGMENT.

STRAIGHT, J. Then comas the third question, which is a question of
law, and this entirely turns upon the construction to be given to the
document of the 16th March 1848. As to the genuineness of this
document no controversy is raised, and we must take it that it was
executed by Basharat Ali, the ancestor of the parties. At the outset of
this judgment I took occasion to advert to the statement of defence, and
the case therein set up, and it is to be remarked in this connection that in
that written statement this instrument of the 16th March 1848 is spoken
of as a deed of settlement, and as such it was put forward and relied upon
before the learned Subordinate Judge. In the 7th plea in both the memo-
randa of appeal it is said: "Because the document of 16th March 1848,
executed by Mr. Basharat Ali, is in the nature of a settlement, and not a
will, and binding upon the parties. Moreover it had been carried out."
Despite this having been the position taken up in the Court below, and
in the plea in appeal, an entirely new ground was adopted before us, the
contention being that this instrument constituted a wakf created by be-
quest. Mr. Hill, when this point was raised by Mr. Banerji for the appel-
lants, not unnaturally urged that the whole position for the appellants
had been changed and that the contention now put forward on their
behalf was inconsistent and at variance with the position they had
asserted below and in their memorandum of appeal. I am not at
[264] all sure that I should not be more strictly performing my duty if I
were to limit the appellants to the contention upon which the trial before
the first Court proceeded ; but as I think under all the circumstances it
might be inconvenient to adopt that course, I am prepared to decide the
questions of law in the case not upon that narrow view, but in its broader
aspect. Now what then is this instrument of the 16tb March 1848 ? By
paragraph 1, the party executing it recites that, being " in the last stage
of his life, and in old age, he executes this deed as a valid document as
regards heir and inheritance." And he then goes on to set out his various
properties, which be states to be of " his own obtaining or creation, and
that he has the full power over them by way of gift or transfer either to his
kindred or to a stranger." In paragraph II, he recites that his son, Mehdi
Hasan, who was at that time alive, had acted in a way that he did not
approve, and that he therefore, excludes him from inheritance. As regards
his two remaining sons Imam Ali and Kurban Ali, be goes on to say that
Kurban Ali has made himself extremely useful in the management of his
propetry, in looking afterr his affairs, and in protecting it from attacks and
litigation ; and he uses the following expression : " There is no one among
my heirs, excepting Kurban Ali, who has ability to protect the livelihood.
All these rights, personal earnings and the whole income, after deduction
of expenses relating to door (danvaza), Court, occasions of ceremonies and
taziadart in Muharram, &c., appertaining to me will also be in the power

165



13 All. 265 INDIAN DECISIONS, NEW SERIES [Vol.

1890 of Kurban Ali in a proper manner." Then, in the next paragraph, he
DEC. 8. proceeds to make division, and he says : " Supposing that the whole of
my madsh [livelihood] is Ee. 1, out of it 4 annas for Kurban Ali as
APPEL- remuneration for the labour, management of the livelihood, and opposition
LATE of claimants and adversaries which appertain to him. The remainder is
CIVIL. -^ annas, which has been equally allotted to Kurban Ali and Imam Ali,
i.e., in equal shares of 6 annas each. But as regards patta, and kabuliat
ISA. 261= of tenants and lessees, purchase, sale, gift and tamlik, &c., i.e-, in the
11 A.W.N. matters relating to the management and transfer, Imam Ali, illiterate,
(1891) 13. neither has, nor shall have, any power without the consent and advice of
Kurban Ali. But [265] sometimes, in case of Kurban Ali being engaged
in other work, Imam Ali also, with the consent and advice of Kurban
Ali, shall have power in matters of demand, settlement on account,
receipt and acquittance in respect of the revenue fixed.'" Then further a
provision is made for Zainab Bibi ; and then comes the concluding para-
graph, which, ic seems.to me, it is necessary should be read at length :

" Let it be known that this property, together with its income, has



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 26 of 155)