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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 32 of 155)
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village of Sirsia for a sum of Es. 5,684. That transaction was prefected by a
private [317]sale, and it must be taken that that interest has now disappear-
ed from and is no longer subject to the mortgage of 1873. The interest
which those two persons had so acquired was on the 4th September 1887,
assigned over to the plaintiff and that is his title. He, therefore, prima
facie is the holder of a title acquired at a sale under a prior incumbrance
to that under which, as I will in a moment show, the defendants acquired
their interests.

The mortgage No. II has never been put in suit, and it appears that
Pir Ghulam and Juria, the original mortgagees, are both dead, each of them
leaving numerous heirs behind him. With regard to the heirs of Pir
Ghulam, they, on the 20th September 1886, sold their one-half mortgage
interest under the mortgage of the 5th August 1674, to Musammat Karam
Eaji Kuari, the wife of Bbaiya Agar Singh, the mortgagor. The considera-
tion for that sale was a sum of Es. 2,750, which was paid by an assignment
to Vazir and others of the interests of Bhaiya Agar Singh along with a
number of other persons in a village known ns Sehri Sidbi, representing
a sum of Es. 1,751 accompanied by a bond of Bhaiya Agar Singh alone,
mortgaging a zemindari-interest of his for the payment of Es. 999.

As to the share of jurai of the mortgage of the 5th August 1874,
that was, on the 18th October 1886, sold by the sons of Jurai also to Musam-
mat Karam Eaji for a sum of Es. 2,750. In this case also the considera-
tion for the sale was represented by a cross-conveyance, by Bhaiya
Agar Singh along with several other persons, of their interest in the village of
Maidai, representing a value of Es. 2, 450, and by a bond of Bhaiya Agar

200



YII]



NAMDAK CHAUDHRI V. KABAM RAJI



13 All. 319



Singh alone for Es. 300, mortgaging a xemindari share of his own. This
represents the title of the defendants.

Now I have stated exactly the mode in which this litigation presents
itself and how it comes about that the plaintiff, whc represents mortgage
No. I, seeks to have possession as against the holder of the interest under
mortgage No. II. There can be no doubt, I think, that at the time of the
suit which was brought upon the mortgage No. I, the mortgagee had notice
of the mortgage No. II. [318] Not only was that a registered instrument,
but in addition to that the mortgage was of a usufructuary character, the
mortgagees were in possession ; and upon this point the learned Subordinate
Judge below found in terms that the plaintiff in that litigation had know-
ledge and notice of the usufructuary mortgage.

It is said that at that time there being no Transfer of Property Act
in force, and the provisions of s. 85 not being in operation, no obligation
rested upon the plaintiff to include the parties to mortgage No. II in that
litigation. Section 85 of the Transfer of Property Act, which is now in
force, only applies a principle which was long before recognized by the
Courts of this country, and is a principle to which injustice, equity and
good conscience, it seems to me those Courts were bound to give effect.
The learned pleader on behalf of the plaintiff -appellant has said that,
looking to the precise nature of the circumstances under which the
purchasers under the second mortgage transferred their rights to the
defendants, it must be taken that the payment made to them was in fact
a payment made by the mortgagor himself, and therefore it must be
assumed that the mortgage of 1874 was satisfied and discharged, and the
defendants have no right to take their stand upon that security, and
claim any rights under it. It is to be noted in regard to this contention that
the conveyances which represent the more substantial portion of the trans-
fers from Bhaiya Agar Singh to those transferee? were conveyances not
by himself alone, but by himself in conjunction with several other persons;
and I am not aware, as I have pointed out to the learned pleader on behalf
of the appellant, who has put his points so clearly and well in this case
that there is any thing to prevent a mortgagor doing what the mortgagor
in this case is said to have done, namely, assisting in finding funds for his
wife to purchase the mortgagee interest, which the mortgagee was desirous
to transfer. It does not appear to me that this contention has force or
effect, and it cannot prevail.

Then comes the main and crucial point in the case ; what are the
rights of the parties in respect of their several mortgages. This matter is
not without authority. It has been dealt with in the case [319] of Mohan
Manor v. Togu Dka (1). It has been dealt with by my brother Tyrrell
and myself in Muhammad Sami-ud-din v. Man Singh, (2) which latter
ruling has been adopted and followed by the learned Chief Justice and my
brother Brodburst iu Gajadhar v. Mul Chand (3), and has also been
adopted by myself in many rulings to which I have been a party in this
Court. All those rulings are to the effect that if a prior incumbrancer,
having notice of a puisne incumbrance, does not, when he puts his mort-
gage in suit, join the puisne incumbrancer as a party, that puisne inoum-
brancer is in no way affected or prejudiced by the decree in the rights
which the Transfer of Property Act gives him to redeem the prior
incumbrancer. If he has been left out of that litigation the puisne



1891

FEB. 5.

APPEL-
LATE
CIVIL.

ISA. 313 =

11 A.W.N,
(1891) 90.



(1) 10 B. 224.

A VII 26



(2) 9 A. 135.
201



(3) 10 A. 520.



13 All. 320



INDIAN DECISIONS, NEW SERIES



[Yol.



1891 incumbrancer must be placed in tbe same position be would have held
FEE, 5, h a d he been a party to that litigation.

Tbe defendant is the puisne incumbrancer admittedly. She is willing

APPEL- and ready to discharge all the obligations that the law reasonably calls upon
LATE ^ er * discharge, and she is prepared to satisfy tbe amount which properly
C is proportioned to the 6 annas 4 pies of mauza Sirsia. It is not denied

' that Bs. 5,684 was the amount which, by private arrangement between the

13 A. 318= mortgagor who must be presumed to have had the best regard for his
11 A.W.N. interest, and the mortgagee, who must be presumed nob to have paid more
(1891) 90. than a fair price was paid for the purchase at the private sale of the
6 annas 4 pies. I have not heard one word that that was not a reason-
able sum, and we are both agreed that that is the extent; to which equity
requires that the defendant should pay the plaintiff, if she is to retain
possession of this particular share of mauzi Sirsia. That being the view
I take of this case, I think that the decree of tbe Court below was wrong,
in that it called upon the prior incumbrancer, before getting possession, to
pay out the puisne incumbrancer. I think that the position should have
been reversed. I therefore decree the appeal and reverse the decision of
the Court below, and declare that the plaintiff-appellant is entitled to
possession of the 6 annas 4 pies share of Sirsia, subject to this condition
[320] that if within 6 months from the date of this our decree, the defend-
ant do pay into this Court tbe sum of Bs. 5,684 ,to the credit of tbe
plaintiff, tbe plaintiff's suit will stand dismissed and .the defendant will
retain possession of the 6 annas 4 pies of mouza Siraia. If the money is
not paid within the stipulated period, the plaintiff's decree for possession
will stand, and he will be entitled to enforce it acoording to law. In
either event the parties will hear their own coats of this litigation.
TYRRELL, J. I concur.

Appeal decreed.



13 A. 320 = 11 A.W.N. (1891) 107,

KEVISIONAL CIVIL.
Before Sir John Edge, Kt., Chief Justice and Mr. Justice Knox.



MAHABIR SINGH AND ANOTHER (Petitioners] v. BEHARI LAL AND
OTHERS (Opposite Parties).* [7th February, 1891.]

Act I 0/1887 'Oereral Cliwes Act) s 3, cl (13) Act XII ol 18S7 (Bengal, N. W.
Provinces and Assim Civil Courts Act), s. 21, cl (a) "Value of the original suit"
"Amount or value of the subjeci-mat'er of the suit" Jurisdiction Civil Proce-
dure Code, s. 2 Decree, definition of.

For the purpose of determining tbe proper appellate Court in a Civil suit what
is to be looked to his the value of the original suit, that is to say, tbe "amount
or value of the subject-matter of the suit." Suoh "amount or value of the sub-
ject-matter of the suii" must be taken to be the valua assigned by the plaintiff
in his plaint and not the value as found by the Court, unless, it appears that,
either purposely or through gross negligence, the true value of the suit has been
altogether misrepresented in the plaint.

An order of a District Judge returning a memorandum of appeal to bd pre-
sented in the proper Court on the ground that the value of the suit is beyond the



* Miscellaneous application under s. 622 of the Civil Procedure Code. Civil Revi-
sion No. 292 of 1889.

202



YIIJ MAHABIB SINGH y. BEHABI LAL 13 All. 322

pecuniary limits of his jurisdiction is not, a deorea within the meaning of s. 2 1891

of the Civil Procedure Code. pppt 7

[Sppr., 23 0.536; R., 15 A. 363; 16 A. 252; 16 A. 288; 17 A. 69; 28 A. 545 = 3 L'

A.L.J. 266 = A.W.N. (1906)99; 22 B. 963 (966) ; 18 A.W.N. 74 ; 20.0. 103; R EV T-
2 O.C. 133 ; 6 O.C. 255 ; 101 P.R. 1900 ; 9 Ind. Gas. 414.]

SIGNAL

THE facts of this case sufficiently appear from the judgment of the r TX7TT

s* V^/JLVlLj.

Court.

Hon'ble Mr. Spankie and Mr. C.H. Hill, for the appellants. 13 A. 820 =

Munshi Bam Prasad and Munshi Kashi Prasad, for the respondents. 1J *- W ' N -

(1891) 107.

JUDGMENT.

[321] EDGE, O.J. and KNOX, J. This is an application to us to exercise
our powers of revision under section 622 of the Code of Civil Procedure.

The order to which this application relates was one by which the
late District Judge of Ghazipur returned a memorandum of appeal to the
present applicants for presentation to this Court. The District Judge
declined to hear the appeal on the ground that the appeal lay to this Court
and not to the District Court.

The suit out of which this appeal arose was one for pre-emption of a
share in a village. The plaintiffs in their plaint valued the share at
Rs. 4,000 and brought this suit in the Court of the Subordinate Judge of
Ghazipur. The defendants valued the share at R*. 8,160. The Subor-
dinate Judge having found the value of the share to be Ra. 7,464-10 3 made
a decree for pre emption on payment of that; amount. From that decree
the plaintiffs, who are the applicants here, filed an appeal in the Court of
the District Judge. The District Judge, having found the value of the
share to be Rs. 7,526, was of opinion that he had no jurisdiction to hoar
the appeal and consequently passed the order to which this application
relates.

Mr. Kashi Prasad for the respondents raised a preliminary objection
that s. 622 of the Code of Civil Procedure did not apply, his contention
being that either a first appeal from the order lay or that the applicant*
had a second appeal.

Mr. Hill for the applicants contended that no appeal lay from the
order in question, and that this was a case within s. 622.

In first Appeal from order No. 145 of 1889 we have to-day held thafc
the order in question was not appealable as an order.

We are also of opinion that the order in question is not a decree as
defined by s. 2 of the Code of the Civil Procedure. The order did not decide
the appeal. On the contrary it was an order by which the District Judge,
on the ground of jurisdiction, refused to decide the appeal and returned
the memorandum of appeal to the [322] appellants, so thafc they might
have their appeal decided by this Court.

The construction to be placed upon the clause defining a "decree", in
s. 2 of the Code of Civil Procedure was considered by this Court in
Balkaran Eai v. Gobind Nath Tiwari (1). The question then arose Had
the District Judge jurisdiction to hear and determine the appeal ? If he
had, then he failed to exercise a jurisdiction vested in him by law.

That question turns upon the construction of the words " value of the
original suit " in clause (a) of s. 21 of Act XII of 1837, read with clause (13)

(1) 12 A. 129.
203



13 All. 323 INDIAN DECISIONS, NEW SERIES [Yol,

1891 of s. 3 of Act I of 1887. By the latter clause " value with reference
FEB. 7, to a suit shall mean the amount or value of the subject matterof the suit."
~ Mr. Kashi Prasad contended that " the value of the subject matter of
the suit" is the value which may be found by the Court hearing the suit.
SIGNAL On the other hand Mr. Hill contended that the "value of the subject
CIVIL. matter of the suit" is the value stated by the plaintiff in his plaint.
13 1~320= There has been much difference of opinion in the Courts in India,

11 A W N Deluding this Court, on this question of how the jurisdiction is to be
(1891) 107' ascer t i ained. It is a question not without difficulty.

It is, however, clear that by s. 21 of Act XII of 1887, the jurisdiction
of the district Judge in appeal is to be determined by the value of the
original suit and not by the value of the appeal. It appears to us that
the " amount" of the subject matter of the suit mentioned in clause (13)
of s. 3 of Act I of 1887 must mean the amount, that is,, the amount in
money, which the plaintiff claims to recover in his suit and not the amount
which the Court may give him a decree for, and that for purposes of
jurisdiction the amount of the subject matter of the suit must consequently
mean the amount as stated by the plaintiff in his plaint.

It seems to us that the same principle must be applied when we have
to ascertain the meaning of the " value of the subject matter [323] of the
suit " in the same clause, and that the value of the subject matter of
the suit must be the value as stated by the plaintiff in his plaint. The
opinion which we express is that which was held by this Court in Jag
Lai v. Har Narain Singh (1) and by the High Court at Bombay in
Lakshmo,n Bhatkar v. Babaji Bhatkar (2). The fact that in the Allaha-
bad case s. 22 of Act VI of 1871 was in question, and that in the Bombay
case the section in question was s. 25 of Act XIV of 1869 does not appear
to us to make the decisions in these cases inapplicable as authorities on
the subject which we are now considering. Mr. Justice Straight and
Mr. Justice Tyrrell inform us that in a case which unfortunately has not
been reported they held that the " value of the subject matter in
dispute " within the meaning of s. 90 of Act VI of 1871 was the value
stated by the plaintiff in his plaint. Whilst holding that the value
of the subject matter of the suit for the purposes of jurisdiction is
the value as stated by the plaintiff in his plaint, we entirely agree with
the learned Judges in the Bombay case to which we have referred
that the jurisdiction of the Court properly having cognizance of
the cause is not to be ousted by unwarrantable additions to the claim, "
and that an exaggerated claim which cannot be sustained and which there
is no reasonable ground for expecting to sustain, brought for the purpose
of getting a trial in a different Court from the one intended by the
Legislature, is substantially a fraud upon the law and must be rejected,
whether it arises from a mere recklessness or from an artful design to get
the adjudication of one Judge instead of that of another. The words
which we have used are almost precisely those of the Bombay High Court.
Such a case as is referred to would be an instance of an attempt to evade
s. 15 of the Code of Civil Procedure. The result is that as the applicants,
the plaintiffs in the suit, had in their plaint valued the subject matter of
their suit at Es. 4,000, the District Judge had jurisdiction to hear and
determine the appeal, and, as he failed to exercise the jurisdiction vested
in him by law, we, under section 622 of the Code of Civil Procedure, make

(1) 10 A. 524, (2) 8 B. 31.

204



YII]



MANGAL SEN V. HUP CHAND



13 All. 323



our order setting aside bis order, the subject of this application, and
directing that the appeal [324] be restored to the' file of the pending
appeals in the Court of the District Judga of Ghazipur, and that it be
disposed of according to law ; and we further order that the costs of this
application shall abide the result of the appeal.

Application allowed.



13 A. 324 = 11 A.W.N. (1891) 96.

APPELLATE CIVIL.
Before Sir John Edge, Kt. t Chief Justice and Mr ' Justice Knox.



MANGAL SEN (Plaintiff) v. HOP CHAND AND ANOTHER (Defendants) .*
[10th February, 1891.]

Suit fending in Court of Subordinate Judge with Small Cause Court fowers Transfer
to Munsij's Court Civil Procedure Code, s. 25 Act IX of 1887. (Provincial Small
Cause Courts Act), s. 35.

The plaintiff filed bis suit as a Small Cause Court case in the Court of a Subor.
dinate Judge having Srcull Cause Court powers. During the pendency of the
suit 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 as a
Small Cause Court, to the Munsif to be tried as Munsif's Court oases. The
Munsif had Small Cause Court powers up to Rg. 50. The plaintiff's suit was
for Rs. 69. The case was accordingly 'tried by the Mua.-if and the plaintiff
appealed, his 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 s. 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.

[Diss., 23 B. 382 ; 31 C. 1057 ; 6 O.G. 81 ; P., 2 O.C. 143 ; 154 P.L.R. (1903) = 83 P.
R, 1903 ; Appr., (1912) M.W.N. 1086 (1090) = 23 M.L.J. 373 (380) ; R., 17 Ind.
Gas. 425(428,'; D., 11 Ind. Cas. 431 (432) = 227 P.L.R. 1911 = 145 P.W.R.
1911.]

THIS was a reference from the Subordinate Judge of Saharanpur under
circumstances which are fully detailed in the judgment of the Court.

JUDGMENT.

EDGE, C. J. and KNOX, J. This is a question referred to us by the
Subordinate Judge of Saharanpur, under s. 617 of the Code of Civil
Procedure. A suit was filed as a Small Cause Court suit in the Court of
the Subordinate Judge of Saharanpur, the Subordinate Judge having
had Small Cause Court powers conferred upon him. [325] While
the suit was pending before that Court, the Subordinate Judge went
on leave. The gentleman who was appointed to officiate in the absence
of the Subordinate Judge bad not had conferred upon him Small
Cause Court powers. The District Judge made an order transferring
this suit and others to the Court of the Munsif of Saharanpur to be
tried and disposed of as a Munsif's case. The Munsif had had con-
ferred upon him Small Cause Court powers to the extent of Bs. 50.



1891

FEB. 7,

REVI-

SIONAL

CIVIL.

13 A. 320 =

11 A.W.N.
(1891) 107.



* Miscellaneous Application, No. 112 of 1890, under s. 617 of Mie Civil Procedure
Code.



205



13 All. 326



INDIAN DECISIONS, NEW SERIES



[Yol.



1891

FEB. 10.

APPEL-
LATE
CIVIL.

13 A. 324 =
11AW.N.

(1891) 96.



The suit in question was one for Es. 69. The plaintiff, being dissatisfied
with the decree of the Muusif, appealed to the District Judge of Saharan-
pur, who transferred the appeal to the Court of the Subordinate Judge. In
what we are going to say we are not deciding whether the suit was a suit
of the nature of Small Cause Court suits or cognizable by a Court of
Small Causes as such. That may be a question yet to be decided by the
Subordinate Judge. We merely assume for present purposes that it was
a Small Cause Court suit. On that assumption we give the following
opinion : It is not necessary to decide whether or not the decision in
Kauleshar Rai v..Dost Muhammad Khan (1), was right in law aiid
applies to this case. If s. 25 of the Code of Civil Procedure applies
here, and the order was in fact made under that section, the last clause
of that section would apply, and the Munsif, for the purposes of this
suit, must be deemed to have been a Court of Small Causes competent
to try it as such. The transfer to the Munsif's Court was made
after the Subordinate Judge, who had Small Cause Court powers,
had proceeded on leave. If, by reason of this fact, s. 25 of the Code
of Civil Procedure did not apply, then we must apply s. 35 of the
Provincial Small Cause Courts Act (Act IX of 1887). That section re-
quires to be carefully looked at. It is quite possible that the Legislature
may not have expressed in the section what it intended, but we must
construe the section as we find it. Clause (1) of the section is as
follows :

" Where a Court of Small Causes or a Court invested with the juris-
diction of a Court of Small Causes, has from any cause ceased to have
jurisdiction with respect to any case, any proceeding in [326] relation to
the case, whether before or after decree, which, if the Court had not
ceased to have jurisdiction might have been had therein, may be had in
the Court which, if the suit out of which the proceeding has arisen were
about to be instituted, would have jurisdiction to try the suit."

The suit in the section referred to is a Small Cause Court suit, and
the proceeding in the section is a proceeding in the Small Cause Court suit.
The result is, according to our construction of the section, that when, by
reason of a Small Cause Court ceasing to exist a suit is transferred to
another Court, the proceedings still continue to be Small Cause Court
proceedings, and for this purpose the Court to which the transfer is made
must be treated as if it was a Court of Small Causes having jurisdiction to
hear the suit transferred to it. In other words, whatever the intention of
thfi Legislature was, we read s. 35 of Act IX of 1887 in the same sense
that we read the concluding paragraph of s. 25 of the Code of Civil
Procedure. With this expression of opinion the record will be returned
to the Court of the Subordinate Judge of Saharanpur.



(1) 5 A.
206



YII] SECRETABY OF STATE V. BHAGWANTI B1BI 13 All. 328

13 A. 326 = 11 A.W.N. ((891) 97, jggj

APPELLATE CIVIL. FEB. n.

Before Mr. Justice Straight and Mr. Justice Tyrrell.

___ APPEL-

THE SECBETART OP STATE FOR INDIA IN COUNCIL (Plaintiff) v.

BHAGWANTI BIBI AND OTHERS (Defendants).* CIVIL.

[llth February, 1891.] 13 A 328s

Suit in formi pauperis Appeal Bight of Government to atp'al in respect of Court fee n aw N
on portion o( plaintiff's claim dismissed Civil Procedure Code, ss. 411, 412.

In a suit in forma vauperis the District Judge decreed the plaintiff's claim in
part and dismissed it in part, but omitted to make any provision for payment to
Government of the court-fee on the portion which was dismissed. The Secretary
of State, not having been a party to the litigation in the Ccutt below, then pre-
ferred an appeal in respect of the court-fee on that portion of the plaintiff's
claim which had been dismissed.

Held that such an appeal would lie ; though the more suitable prccedura
would have been for the Government to have applied, through the Collector, to
the Court of first instance to review its judgment and to repair the [327] omis-
sion in its decree. Janki v, The Collector of Allahabad (I) referred to.
23 M. 73.]



Musammat Bhagwanti Bibi brought a suit in forma pauperis against
Hardeo Das, Earn Kishan, Murlidhar and Binda Prasad, three brothers
and a nephew of her deceased husband, for the recovery of certain orna-
ments, which she alleged to have been wrongfully retained by the defend-
ants, and also for maintenance at the rate of Es. 20 per mensem, the same
being interest on a sum of Es. 2,000, which, according to the plaintiff, had
been left for her use in the defendant's shop under the will of her father-in-
law, Sohan Lai. She also claimed Es. 812 as arrears of interest on the'said
sum. The defendants denied the right of the plaintiff to bring her suit in
forma pauperis. They also pleaded that the will set up by the plaintiff
was nofc binding on them, that they never had possession of any of the
plaintiff's ornaments, and that the plaintiff had forfeited her rights to
maintenance by reason of her unchastity, or if she was entitled to any,
interest at the rate of 6 per cent, was sufficient. The Court of first instance
found in favour of the validity of the will, and, fixing the rate of interest at



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 32 of 155)