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proceedings taken by that Court against Angan Lai were without jurisdic-
tion. The decree-holders in consequence attached the money in question
in the hands of Angan Lai. Both Angan Lai and the widow of Ajudhia
Prasad attempted to get rid of the attachment, but unsuccessfully. The
plaintiffs in the present suit purchased the debt due by Angan Lai on the
17th December 1888 and sued in the Court of the Subordinate Judge of
Moradabad to recover tbe same. The Subordinate Judge found that tbe
suit was barred by limitation under art. 62 of the second schedule of the
Limitation Act (XV of 1877). The plaintiffs thereupon appealed to the
High Court.

Pandit Sunder Lai and Babu Bajendro Nath, for the appellants.

Munshi Bam Prasad, for the respondents.

JUDGMENT.

EDGE, C.J., and TYRRELL., J. The only question which we need
consider is a question of limitation. Angan Lai received a large sum of
money as special agent for that purpose of Ajudhia Prasad, [370] bis
brother. The money was received on behalf of Ajudhia Prasad. The money
was attached in the bands of Angan Lai by a judgment-creditor of Ajudhia
Prasad ; the plaintiffs became the purchasers of the rights of that judgment-
creditor and they sought in this suit to recover the money from Angan Lai.
It was contended on behalf of Angan Lai that art. 62 of the second schedule
of the Indian Limitation Act of 1877 applies. If that article did apply,
the suit was barred by time. On the other hand, on behalf of the plaintiffs-
appellants, it was contended that art. 120 of that schedule was the only
article which applied, If that article applies, the suit was within time,
inasmuch as the plaintiffs appear to us to be standing, qua Angan Lai in
the shoes of Ajudhia Prasad ; we should have thought that the article of
limitation, namely, art. 62, which would clearly have applied to a suit by

235



13 All. 371



INDIAN DECISIONS, NEW SERIES



[Yol.



1891

MAY 20.

APPEL-
LATE
CIVIL.

13 A. 366
11 A.W.N.
(1891) 130.



Ajudbia Prasad, would also apply to the suit of the plaintiffs, but we
have been referred on behalf of the plaintiffs to the case of Gurudas Pyne
v. Bam Narain Sahu (l) as an authority to 3how that art. 62 would not
apply here. In that case the plaintiff sought to recover money which had
been received by the defendant for one Musammat Moti Dasi as the price
of timber sold for her. The timber, in fact, was the timber of the plaintiff
who had been wrongfully dispossessed by the husband of Musammat Moti
Dasi. Then the defendant contended that art. 60 of the second schedule
of the Limitation Act of 1871 applied.

That article is word for word the same as art. 62 of the second sche-
dule of the present Act. Their Lordships held that as the defendant
was, when selling the timber, acting as the agent of Musammat Moti
Dasi, and as he received the money for her and not for the plaintiff, art. 60
of the second schedule of the Limitation Act of 1871 did not apply,
and that the article which did apply was art. 118 of the schedule, which
article corresponds with art. 120 of the second schedule of the present Act.
When we regard the specific words used by their Lordships of the Privy
Council in that case when explaining that art. 60 did not apply, and having
regard to the fact that Angan Lai received the money for Ajudhia Prasad,
[371] and not for the plaintiffs or the judgment-creditors whose interest
they purchased, we are bound to decide that art. 120 of the second sche-
dule of the Limitation Act of 1877 is the article which applies to this case
and that the suit is consequently within time. The other issues have been
found in the Courts below in favour of the plaintiffs. Those findings have
not been objected to by objection filed under the Code of Civil Procedure.
We must consequently accept them, as we do. We accordingly decree the
appeal with costs and pass a decree for the amount claimed by the plain-
tiffs, namely, Es. 9,635-4-9 with 6 per cent, interest from the date of our
decree and costs of both the Courts. Appeal decreed.



13 A. 371 = 11 A.W.N. (1891) 133.

APPELLATE CIVIL,
Before Mr. Justice Straight and Mr. Justice Knox.



BALDEO SAHAI (Defendant) v. BAIJ NATH (Plaintiff).*

[27th May, 1891.]

A(.t IV of 1882 (Transfer of Property Act), ss.'52 and 82 Contribution Lis pendens.
Two properties, A and B, belonging to different owners, were mortgaged under
a joint bond for the same debt. The mortgagee put his bond in suit, and having
obtainted a decree caused property A to -be sold, the proceeds of which proved
more than sufficient to satisfy the whole mortgage-debt. Before such sale, how-
ever, X had, in execution of a simple money-decree, acquired a share in property
A. X accordingly sued for contribution from property B, in that, so far as his
share in property A went, he had satisfied the mortgage debt, and ultimately
obtained a decree in his favour; but, during the pendency of that litigation,
property B had been transferred to Y,

Held that Y must take the property subject to X's right to contribution from
it in respect of the loss of bis share in property A.

(R., 26 A. 407 (444) = A.W.N. (1904) 74 (88) ; 26 B. 379 (385) = 4 Bom. L.R. 61 ; 24 M.
96 (108).]

* Second Appeal, No. 1562 of 1888, from a decree of Maulvi Muhammad Abdal
Quaium, Subordinate Judge of Bareilly, dated the 27th March 1888, confirming a decree
of Babu Ganga Prasad, Munsif of Bareilly, dated the 16th December 1887.

(1) 10 C. 860.

236



YII]



BALDEO SAHAI V. BAI NATH



13 All. 373



TflE facts of this case sufficiently appaar from the judgment; of
Straight, J.

Mr. T. Conlan and Mr. Amir-ud-din, for the appellant.
Babu Jogindro Nath Chaudhri, for the respondent.

JUDGMENT.

STRAIGHT, J. It is unfortunate that the facts and dates relating
to the circumstance out of which this litigation has arisen were [372]
not more distinctly and specifically stated by the lower appellate Court
in a more concise form. To put it shortly, the matter stands thus. In
the year 1873, Ramji Mai and Nath Mai Das executed a simple
mortgage for Es. 625 in favour of one Bansi Dhar. As security for the loan,
Ramji Mai mortgaged his 1 biswa 14 biswansis of Namdarganj, and Nath
Mai Das his 1 biswa 5 biswansis of Siruli. In April 1877, the mortgagee,
Bansi Dhar, put his bond in suit, and, having obtained a decree, caused
Ramji Mai's 1 biswa 14 biswansis of Namdarganj to be brought to sale,
and it was sold for Rs. 1,525, which was more than sufficient to satisfy
and discharge the mortgage-debt. Bansi Dhar, therefore, disappears from
the transaction and need not be further mentioned.

Prior to this sale the present plaintiff, Baij Nath, on the 23rd
October 1876, in execution of a simple money-decree against Ramji
Mai bad acquired 17 biswansis 1 kachwansi out of the 1 biswa
14 biswansis of Ramji Mai's in Namdarganj. When, in execution
of that decree upon the mortgage, the whole of Ramji Mai's interest in
Namdarganj was sold, the plaintiff was deprived to the extent of the
interest which he had acquired therein ; namely, 17 biswansis 1 kach-
wansi. In other words, he, to the extent that that interest represented in
the sale, satisfied and discharged the mortgage-debt. He therefore, in my
opinion, became entitled to the equities provided for in s. 82 of the
Transfer of Property Act, and, as standing in the shoes of Ramji Mai, he
was entitled to call for contribution from Siruli in proportion to what
Siruli should have paid to the mortgage-debt.

A suit was instituted by the plaintiff, therefore, against Ramji Mai
and Nath Mai Das, Ramji Mai apparently being added more as a matter
of form. By that suit the plaintiff in explicit terms claimed from the
immoveable property of Siruli its fair contribution to the mortgage-debt,
which to the extent of his 17 biswansis 1 kachwansi in Namdarganj, he
had had to pay. That suit went through three Courts, ending in the decree
of this Court, by which it was found that the plaintiff was entitled to a
contribution from Siruli of Rs. 401-5-2.

[373] In my opinion that was not a more money-suit. That was a
suit which by operation of law affected the immoveabla property of Siruli
and was directed towards obtaining from that property, Siruli what by
law it was bound to contribute under s. 82 of the Transfer of Property
Act. Now it is not denied that, pending that suit, and obviously for the
purpose of defeating the just claim of the plaintiff Siruli was transferred
by Nath Mai Das to the present defendant, Baldeo Sahai. In my opinion
this was a transfer pendente lite which would come within s. 52 of the
Transfer of Property Act, and any such transfer so made would convey to
the transferee that property with all the imperfections upon its head thac
it would -be subject to under the suit that was then pending. Consequently,
the defendant, Baldeo Sahai, took the property in and under circumstances
that constrain him to hold that property subject to the decree that was
passed in that suit. The aim and object of the principle of Us pendens is

237



1891

MAY 27.

APPEL-
LATE
CIVIL.

ISA. 371 =
11 A.W.N.
(1891) 133.



13 All. 374 INDIAN DECISIONS, NEW SERIES [Yol.

1891 to avoid multiplicity of litigation, and if some such doctrine were not

MAY 27. to hold good, the party to a litigation in which immoveable property was

concerned might part with that property to a dozen different transferees,

APPEL- with the result that a dozen different suits would have to be brought for

LATE setting aside those transfers. For the reasons I have given I hold that the

CIVIL. Decree of the lower appellate Court is right, and that this appeal should be

and it is dismissed with costs.
ISA. 371= KNOX, J. I concur. Appeal dismissed.

11 A.W.N.

(1891) 183. 13 A 373=3 lt A w N ( , 891) 136

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



JASODA NAND AND ANOTHER (Defendants} v. KANDHAIYA LAL
(Plaintiff)* [28th May, 1891.]

Pre-emption Wajib-ul-arz, construction of Muhammadan Law.

In a suit for pre-emption baaed on a wajib-ul-arz the material words of tbe
wajib-ul-arz under the heading of "custom for pre-emption" were as follows :
" At the time a proprietary share is transferred a right of purshase will [374] vest,
first, in a co-sharer of the same family, and then in the other co-sharers of the
village in preference to a stranger, provided that the same price is paid by the
co-sharer as is offered by the stranger."

Held that these words were intended to define a special custom of pre-emption
and did not merely mean that the custom of pre-emption according to the
Muhammadan law was to be followed.

Ram Prasad v. Abdul Karim (1) distinguished.

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

Mr. D. Banerji, for the appellants
Pandit Sundar Lai, for the respondent.

JUDGMENT.

STRAIGHT, J,, (KNOX, J., concurring). This was a suit for pre-
emption and the vendee is the appellant. The plaintiff is an admitted
co-sharer within the terms of the wajib-ul-arz and the defendant is a
stranger. The terms of the wajib-ul-arz are as follows, under the head
of " custom for pre-emption " : At the time a proprietary share is
transferred a right of purchase will vest, first, in a co-sharer of the same
family, that is, of the vendor, and then in tbe other co- sharers of the
village, in preference to a stranger, provided that the same price is paid
by the co-sharer as is offered by the stranger. "

The Court below has decreed tbe claim, and it is contended by
Mr. Banerji on behalf of the vendee-appellant that this passage in the
wajib-ul-arz merely defines the parties entitled to enjoy the custom of pre-
emption and that it does not specify or define the custom, which must be
looked for in the Muhammadan law, which law, in the absence of contract
or custom to the contrary, supplies the custom. In support of this view,

* Second Appeal, No. 1594 of 1888, from a decree of J. Deas, Esq., District Judge of
Jaunpur, dated the 30th July 1888, reversing a decree of Maulvi Muhammad Said Khan,
Subordinate Judge of Jaunpur, dated the 19th March 1888.

(1) 9 A. 513.

238



YII] KODAI SINGH V. JAISRI SINGH 13 All. 376

he called our attention to the oase of Ram Prasad v. Abdul Karim (1), 1891
which was a considered judgment of the learned Chief Justice and MAY 28.

my brother Mahmood. It seems to me that that case is clearly dig-

tinguishable and that the language used there in the wajib-ul-arz is APPEL
wholly different from that used here. There the words of wajib-ul-arz LATE
[375] were " the custom of pre-emption prevails according to the usage CIVIL
of the country," and, as I understand the learned Chief Justice, there
was no evidence in that cause beyond the declaration contained in 13 4. 373 =
the wajib-ul-arz of what the nature of the custom was, and the learned n A.w.N,
Chief Justice therein said, what I entirely agree in, namely, that where (1891) 135.
such general terms are used, the custom that must be looked for is that
custom which mostly prevails, viz., the custom as recognised by the
Mubammadan law. But in the present case it appears to me that the
wajib-ul-arz itself defines and declares what the custom is, and that with-
in the four corners of the paragraph to which I have called attention the
mode in which that custom is to be exercised and regulated is specifically
fixed, in other words, that the right of pre-emption vests primarily in the
co-sharer ekfaddi, and secondly in the co-sharer of the village, and that
as to both of them there is this proviso that they must give the same
price for the property sold as a stranger was prepared to give for it. The
interpretation then I have placed upon the case of Ram Prasad v. Abdul
Karim (1) is consistent with what the learned Chief Justice himself said
in Husain Khan v. Umedi Bibi (2) and in unison with the remarks of
Mahmood, J., in Muhammad Rustam Ali Khan v. Niadar Singh (3). I
therefore think that the claim of the plaintiff was rightly decreed, and he
was entitled to pre-empt the property in suit. While dismissing the
appeal with costs, we direct, in accordance with the rule laid down in
the recent Full Bench of this Court, that the time for the payment of
money be extended to the 1st of August 1891, and the decree will declare
that if the money is paid in by that date, the plaintiff will get the
property, and if the money be not paid by that date, the olaintiff's suit
will stand dismissed with costs. To leave no doubt upon the question,
I think it well to add that in the event of the money being paid in by
the specified date, the plaintiff will have his costs in all the Courts.

Appeal dismissed.



13 A. 376 (F.B.).
[376] FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, Mr, Justice
Brodhurst, Mr. Justice Tyrrell and Mr. Justice Mahmood.



KODAI SINGH (Plaintiff) v. JAISRI SINGH AND OTHERS (Defendants).

[10th December, 1889.]

Pre-emption Decree conditional on payment o( price stated ivithin a fixed pariod, other-
wise &uit to stand dismissed Non-payment of pre-emptive price Appeal after
expiration of period fixed by decree.

The plaintiff in a pre-emption suit obtained a decree in his favour for pre-
emption of the share in suit on payment of a fixed sum within a period specified
in the decree, otherwise his suit was to stand dismissed.

Held, that such plaintiff could appeal from such decree after the period pres-
cribed therein had elapsed without bis paying in the pre-emptive price fixed



(1) 9 A. 513, (2) 9 A.W.N. (1889) 192. (3) 6 A.W.N. (1886)

239



13 All. 377 INDIAN DECISIONS, NEW SERIES [Yol.

thereby, both as to the correctness ol the pre-emptive price and as to the reason-
ableness of the time allowed for payment.
DEC 10

_ ' [R., 14 A. 350 (354); 14 A. 529 ; 16 A- 126 (128)= 14 A.W.N. 3 (4); 18 A. 223 (226)
FULL =16 A - W - N 43 < 44 ' 104 P.L.R. 1906=- 48 P.R. 1906 ; 11 O.C. 144 (147).]

[N.B. This* is the same ai 13 A. 189. Bat thli caie contains a fuller report

BENCH. of the cage in 13 A



13 A. 376 THE facts of this case are given in the referring order of Mahmood, J.,

(F.B.) of the 28th May 1889, which is as follows :

MAHMOOD, J. This appeal has arisen out of a suit for pre-emption
in which the right was sought to be enforced in respect; of a sale which
took place on the 14th January 1886.

The suit was instituted on the 14th January 1887 and resulted in a
decree in favour of the plaintiff passed by the Munsif who presided in the
Court of first instance on the 28tb April 1887. By the decree it was
found that the real amount of the purchase money was Rs. 799, while the
plaintiff had alleged that the real price was only Rs. 700. The time fixed
for payment of such money was 15 days from the date of the decree.

From the decree of the Munsif the defendants did not appeal, but the
plaintiff appealed only in respect of the sum of Rg. 99, that is to say, the
excess over Rs. 700, which the plaintiff had alleged was the right amount
of the consideration money. The plaintiff-appellant also complained in
the grounds of appeal to the lower Appellate Oourt that the time fixed
for payment of the consideration money was unreasonably short.

The appeal was presented on the 27th May 1887, and ib was decided
by the lower Appellate Court on the 2nd February 1888.

[377] In deciding the appeal, however, the learned Judge of the lower
appellate Court has not gone into the merits of the case as to the amount
of the purchase money which the plaintiff alleged was in excess of the
real purchase money, but dismissed the appeal before him upon the
ground that, the term within which the money was to be paid under the
decree of the first Court having expired, the plaintiff had no right of
appeal. This is practically what the learned Judged has held, and there
is no finding in the case as to the sum of money, namely, Rs. 99, as to
which the appeal had been preferred to him.

In disposing of the case tha learned Judge has relied upon a ruling
of my own in Chhidda v. Imdid Husain (1). To the views which I
expressed in my judgment in that case I still adhere but I am of opinion
that there is nothing in the judgment to have allowed the learned Judge
to obviate the necessity of having to try the case upon the merits.

From the decree of the lower appellate Court this second appeal has
been preferred, and Mr. Jwala Prasad's argument in support of the
appeal seeks that the case should be remanded for trial upon the merits
under s. 562 of the Code of Civil Procedure. The argument is, however,
resisted by Mr. Bam Prasad, who, I think, is entirely within his rights
when he relies upon two Division Bench rulings of this Court, one being
M ulu Singh v. Rahim Kuar (2) in which the learned Chief Justice and
my brother Brodhurst concurred, and also upon an unreported ruling of
the learned Chief Justice and my brother Tyrrell, in first Appeal No. 25
of 1888, decided on the 8th May 1889. Both of these rulings support
the contention of Mr. Earn Prasad because at the time when the learned
Judge of the lower appellate Court had to decide the appeal before him
and, indeed, because at the time when the appeal to him had been preferred.

(1) 8 A, W. N. (1888) 4. (2) 8 A. W. N. (1888). 23.

240



YII] KODAI SINGH tf. JAISBI SINGH 13 All. 379

tha 15 days' period provided by the.Firsfi Court for pay meat oi thu purchase 1889
money bad expired, there could be no reason for the learned Judge to go DEC. 10.
into Lbe merits of the case.

[378] Mr. Jwala Prasad for tbe appellant has argued that, though
these cases are opposed to his case, he is prepared to argue the point BENCH.
de novo, if I should allow hira to cpeu tbe question, which would require ^3 j 373
my goine behind the conclusions and judgments of the two rulings to (p g >
which Mr. Bam Prasad has referred.

I do not think that I should, sitting here as a single Judge, reopen
the question in connection with the two Division Bench rulings ; but I
feel some difficulty in accepting them, and I think the proper course is to
refer the case to a Bench consisting of two Judges, wita a further recom-
mendation that the case be laid before the learned Chief Justice for orders
as to whether or not, in view of the rulings that I have cited, it is a fit
case to be considered by the Full Bench.

The case was accordingly laid before the Full Bench, and the follow-
ing judgments were delivered :

JUDGMENT.

STRAIGHT, J. The learned Judge appears to have refused to enter
into the question of price because, tbe Es. 799 not having been
paid within the time directed by the decree of the First Court, he was
of opinion that there was no subsisting decree from which an appeal
could be preferred. Strictly speaking, the exact decree which stood at the
date of tbe plaintiff's filing his appeal was that of dismissal of bis suit by
reason of bis having failed to deposit the Rs. 799 within. 15 days, and had
he appealed against it on that footing be might have raised questions as to
the propriety of the First Court's finding on the matter of price and the
time allowed him within which to pay the amount into Court. I think,
therefore, in this case it must betaken that there was a decree from which
an appeal could be entertained, and that the plaintiff was entitled to get a
determination of the question of price, which when decided might properly
guide the Judge's conclusions upon the further point as to whether the
time allowed by the First Court was reasonable.

We in no way wish to depart from what was thrown out in the Full
Bench ruling of this Court reported in the N. W. P. Reports for 1868,
p. 54, and followed by Pearson and Spankie, JJ., in I.L.R. [379] 2 All.
p. 744, that an appellate Court in its discretion may vary the decree of a
first Court in the matter of time for payment, even though such time
expired before the appeal was filed.

Tbe effect of this view upon the present appeal is that it will be decreed
and the appeal be remanded to tbe Court of tbe Judge of Gorakhpur for
restoration to his file of pending appeals and disposal in ordinary course
as an appeal upon the pleas, including that of time, taken by the plaintiff-
appellant. Costs hitherto incurred will follow tbe result.

MAHMOOD, J. This case has arisen out of a reference made by me,
and the circumstances which gave rise to the reference are stated in my
order of reference, dated the 28th May 1889, and I do not wish to repeat the
circumstances of tbe case further than saying that my judgment in this case
depends on, and refers to, that order and the facts stated therein for the
consideration of the question of law which arises here. This being so, it
is, I, think, important for me specially, as the referring Judge in the case,

241
A VII 31



13 All. 380 INDIAN DECISIONS, NEW SERIES [Vol.

1889 to explain that my ruling in Chhidda v. Imdad Husain (l) is not inconsist-
DEC. 10. ent with the view expressed in the judgment which has just heen delivered.
That was not a case of a regular pre-emption decree which was the subject of
FULL appeal, but the appeal related to the execution of such a decree which fixed
BENCH, one month as tbe time for payment of price. That decree had become
final by being affirmed by the appellate Court on tbe 15th January
13 A. 376 1885, without any alteration as to the fcerm of one month ; but the deposit
(F.B ) of the purchase-money was not made till the 16th February 1885, that
is, after the fixed period of one month, even as calculated from the
appellate decree of the 15th January 1685. The appellate Court in
that case in passing its decree of the 15th January 1885, had, no doubt,
power to decline to extend tbe period, as was held by the Full Bench in
Sheo Pershad Lall v. Thakoor Bai (2), to which I referred, and, as a Court
executing a decree, declined either to hold that the decree in fixing a
period for pnymenfc of price was illegal or that the period of one month
which it nreecrihed could be extended by the Court execut-[380]ing the
decree. The argument that the period of one month should be calculated
from the final appellate decree of the 15th January 1885 could
not very well be pressed in that case (as indeed it was not pressedh'n
favour of tbe pre-emptor, decree-holder, because, as I have already said,
even upon that calculation his deposit of the price on the 16th February
1885 was beyond time. The case is therefore distinguishable from the
present case. The real difficulty in connection with pre-emption decrees,
and specially with reference to the point which has given rise to this



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 37 of 155)