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[391] Pandit Sundar Lai, for the appellant.

Mr. T. Conlan and Munshi Kashi Prasad, for the respondents.

OEDEE OF BEMAND.

EDGE, C. J., and MAHMOOD, J. On the report of the Taxing Officer
of this Court the stamp is sufficient. The Court below must try the suit
on the merits and decide on the evidence and the law as applicable to
it whether or not the plaintiffs are entitled to the declaration they seek.
We set aside the decree under appeal, and remand the case under s. 562
of the Code of Civil Procedure to be disposed of according to law. The
costs here and hitherto will follow the result.

Cause remanded.



1891

MAYS.

APPEL-
LATE
CIVIL.

13 A. 389-
11 A.W.N
(1891) 139.



A VII 32



249



13 All. 392



INDIAN DECISIONS, NEW SERIES



[Vol.



1891

MAY 14.

APPEL-
LATE
CIVIL.

ISA. 391 =

11 A.W N,
(1891) 141.



13 A. 391 = 11 A.W.N. (1891) 191.

APPELLATE CIVIL.
Before Sir John Edge., Kt., Chief Justice, and Mr. Justice Tyrrell



KALI DAS (Defendant) v. BIJAI SHANKAR AND ANOTHER (Plaintiffs).*

[14th May, 1891.]

Hindu Law Adoption by widow to deceased husband Died oj adoption, construction
of Powtrs of adoptive mothtr.

The widow of a separated Hindu nude.aa wbpiio;! to her deceased husband
under a power to adopt conferred upon her by her husbind'j will. Tbedead by
which the adoption, the validity of which was not; disputed, was evidenced,
contained, amongst othars. the following conditions : " that during my (ie. t
the adoptive mother's) lifetime 1 sball be iho owner and manager of the
estate and that after my death the adopted sin should have the same rights
and privileges as would havf baen enjoyed by- the natural SOT of Tshan
Ghandar Mukarji born of me. "

Held that these words conferred upon tha widow an interest and an authority
not less than she would have had as the widow of a separated sonlass Hindu to
whom no adoption had Iwen mide, HO far as her position as mtnagec was
concerned.

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of the Court.
Babu Jogindro Nath Chaudri, for the appellant.
Mr. T. Conlan and Pandit Sundar Lai, for toe respondents.

JUDGMENT.

EDGE, C.J., and TYRRELL, J. This appeal has been brought by ona
of the defendants in a suit which was for recovery of money, due under
notes of hand given by one Musamrn at Sri Matia Matangini Dabia. She
was the widow of one Babu Ishan Chandar [392] Mukarji, and after his
death she executed, on the 24th Fabruary 1878, a deed of adoption which,
so far as is material, was as follows :

" I, Sri Matia Matangini Debia, widow and heir of Babu Ishan
Chandar Mukarji, son of Babu Tarni Charan Mukarji, raise of the city of
Koel, do hereby declare that my husband, Babu Isban Ohaudar, on account
of his being childless, had a desire to a'lopfi soim one for tbe perpetuation
of his name and performance of religious ceremonies, and accordingly had
it distinctly recorded in the loajib-ul-arz of each of his zamindari villages,
that he, and after his death his wife, had authority to adopt (a son); that
he had selected to adopt Kali Das, son of his own brother Santi Ghandar,
that tbe time for performing the ceremonies of adoption had not
yet arrived, when he foil ill, and then he executed a will in the
Bengali character under his own signature authorising me to adopt,
and made it over to me ; that in execution of the will of my husband
[ have also selected the same lad a9 was chosen by my husband, and have
accordingly adopted to-day che abovenamed lad in the presence of the
members of the brotherhood, after performing all the ceremonies of adop-
tion according to the custom of the caste, and that for its stability
I execute this deed of adoption containing the following conditions :

" That during my lifetime I shall be the owner and manager of the
estate, and that after my death the adopted son should have the same



* First Appeal No. 28 of 1890 from a decree of Pandit Indar Narain, Subordinate
Judge of Aligarh, dated the 8th November 1889.

250



YII]



KALI DAS V. BIJAI SHANKAR



13 All. 394



rights and privileges as would have been enjoyed by the natural son of
Ishan Chandar Mukarji, born of me. I have therefore executed this deed
of adoption that it may serve as evidence and ba used when needed. Dated
24th February 1878, corresponding with Phagun Badi (Ashtimi) Sambat
1934, Sunday."

It was signed by her and her signature was witnessed by the natural
father of the defendant-appellant-. The defendant-appellant was the boy
whom she adopted, and is now, we are informed by his Counsel, 26 years
old. The lady died in February 1688, whilst this suit was pending. The
defendant-appellant on the 29th March 1887, filed his written statement,
in which, although he [393] made several charges against the old lady,
he alleged that the capacity of the Musammat was that of a manager
of a Hindu family ; he said she had no right to transfer any property ; he
alleges that she has incurred unlawfully debts and done acts to his detri-
ment. The Subordinate Judge decreed the plaintiff's claim against the
defendant-appellant. On his hebnlf it ha? been contended here that the
notes of band in question were given by her in carrying on an indigo
factory, and that she had no power to incur any debts beyond those for
which she alone could be made personally responsible ; in other words,
that she was the owner of the' property aud was not in the position of
a Hindu widow of a separated sonless Hindu, but in the position of a
person who had an estate for life, and that when it was provided in the
deed of the 24th February 1878 that she should be owner and manager of
the estate it was intended that she should be manager of the estate on
her own behalf only and should not be in the position of the person who in
a Hindu family acts and is known as the manager. Reading that deed
in its uatural sense, we art of opinion that it conferred upon her an interest
and au authority not less than she would have had as the widow of a
separated son!e;S Hindu to whom no adoption had been made so far as
her position as manager is ccnecrned. The defendant-appellant, by the
third paragraph of his written statement, seems to have been of opinion
that her capacity as manager was such a capacity as we think was contem-
plated by the deed. We have been referred to Chitko Ragunath



Rajadiksh



1891
MAY 14,

APPEL-
LATE
QlVIL.



31

1* A.W.N.
(1891) 141.



anaki (1), Ramasami Aiyan v. Venkatramaiyan (2) as



showing that in Bombay and Madras such an arrangement as is repre-
sented by the deed of the 24th February 1878, would be held valid,
particularly as it is admitted that the defendant-appellant; ratified that
arrangement after he attained his majority. We have also been referred
to Bepin Behari Bundopadhya v. Brojonath Mookhopadhya (3) which shows
that the view of their Lordships of the Privy Council in the case above
referred to from Madras would [394] be equally applicable to a Bengali,
subject to the Hindu law of Lower Bengal. It is admitted that the
defendant-appellant here is such a Bengali. It appears to us, under the
above circumstaLces that the lady having given those notes of hand for
the bona fide purpose of carrying on the indigo factory, which, as a
matter of fact, had existed and bad deen carried on by her deceased
husband in her lifetime, the defendant-appellant is liable for the amount
decreed against him in the Court below. The appeal is dismissed with
costs.

Appeal dismissed:



(1) 11 B-H.C.R. 199.



(2) a M. 91 = 6 I A. 196.
251



(3) 8 0. 357.



13 All. 395



INDIAN DECISIONS, NEW SERIES



[Yol.



1891

MAY 26.

APPEL-
LATE
CIVIL.

13 A. 394-
11 A.W.N.

(1891) 148.



13 A. 394 = 11 A.W.N. (1891) 148.

APPELLATE CIVIL.
Before Mr. Justice Mahmood.



NOURANG KAI (Decree- holder] v. LATIF CHAUDHRI AND OTHERS

(Judgment- debtors).* [26bh May, 1891.]
Execution of decree Deere? to be executed wh(re there has been an appeal.

Where the appallate Court has modified the decree of the Court below, the
decree of the appellate Court supersedes entirely that of the lower Court, and
is the only decree wbicl< can be executed Shohrat Singh v. Bridgman (1)
Gobardhan Das v. Oopal Ram (-2) and Muhammad Sulaimin Kha\ v, Muham-
mad Yar Khan (3) referred to.

CR., 50.C. 373(375).]

THE facts of this case sufficiently appear from the judgment of
Mahmood, J.

Munshi Kashi Prasad, for the appellant.
The respondent was nofe represented.

JUDGMENT-.

MAHMOOD, J. On the 29bh September 1885, the plaintiff-appellant's
claim for possession of certain property togathor with future mesne profits
was partly decreed by tho first Court. From the decree thus made an
appeal was presented only by the plaintiff, and on the 16th December

1885, his appeal was decreed and so much of the decree of the first Court
as had been passed agaicst him was modified.

[395] Under an application for execution made on the 22nd May

1886, possession of the property was delivered to the decree-holder, appel-
lant, on the 8fch July 1886, and he was also awarded his costs.

The second application for execution was made on the 15th December

1887, and it was struck off on the 24th November 1888.

The third application for execution, which was made on toe 3rd
January 1889, was struck off on the 14bh August 1889, in default.

The present litigation began with an application for execution made
on the 23rJ August 1889, which application relates solely to the question
of future mesne profits, and upon the application being made the judgment-
debtors ob joe ce 3, but their objections were disallowed by the first Court ;
but, upon appeal, the learned Judge of the lower appellate Court, reversing
the order of the first Court, allowed the objections of the judgment-debtors
upon grounds which can best be expressed in his own words :

" The decree to be executed is the decreae of the appellate Court and
that decree, varying the decree of the Court of first instance makes no
provision for future mesne profits, such profits therefore cannot be claimed
in execution."

Now in deciding this second appeal it is necessary to consider the
effect of the Full Bench ruling in Shohrat Singh v. Bridgman (1) as inter-
preted by the recent Full Bench ruling in Muhammad Sulaiman Khan
v. Muhammad Yar Khan (3). It is also necessary to bear in mind the
ruling in Gobardhan Das v. Gopal Ram (2).

* Second Appeal No. 241 of 1890 from a decree of ?V. R. Burkitt, Esq., District
Judge of Gorakhpur, dated the 5th December 1889, reversing a decree of Pandit Alopi
Prasad, Munsif of Basti, dated tha 3rd August 1889.



(1) 4 A. 376.



(2 7 A. 366.
252



(3) 11 A. 267.



YII] GATA SINGH V, UDIT SINGH 13 All 397

I am of opinion that the effect of these rulings is that the ouly decide 1891
which can be put into execution is the appellate decree of the 16th MAY 26.
December 1885, and that, inasmuch as it was not a simple decree of
affirmance, but a decree modifying the terms of the first Court, therefore, APPEL-
unless in the decree of the 16th December 1885, there was an order as to LATE
future mesne profits, no future me&ne profits could be made the subject of ClVIL.

execution. But the decree of tbo 16th December 1885, was not a decree

of simple [396] affirmance, but a decree modifying the original decree of 13 A. 394 =
the 29ih September J 885, and this circumstance in my opinion distin- 11A.W.N.
guishea this case from the cases above referred to. After having fully (1891) 148.
heard the arguments, I am of opinion that the learned Judge has arrived
at a correct conclusion, and I dismiss the appeal, but without any order
as to costs, as the respondent is not represented.

Appeal dismissed.



13 A. 396 = 11 A.W.N. (1891) 140.

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



SINGH AND OTHEBS (Defendants) v. UDIT SINGH (Plaintiff).*
[26bh May, 1891.J

Ex-proprietary tenant Rtlinguishment of ex-proprietary rights Act XII of 1631
(North Western Provinces Rent Act , ss. 9, 31.

Though an ex-proprietury tenant cannot transfer his rights as such (or a con-
sideration, there is nothing to prevent nig voluntarily relinquishing those rights.
R. ( 10 O.G 235 (237) ; D.. 20 A. 219 (232} = 18 A.W.N. 47 (51) = 33 A. 695 (699) ; 8 A.
L.J. 826 (830) = 11 led. Gas. 17 (18).]

THE facts of this case are fully stated in the judgment of Straight, J.

Mr. Niblett, lor the appellants.

Mr. Abdul Majid, for the respondent.

JUDGMENT.

STRAIGHT, J. It is necessary in order to explain the conclusion ab
which I have arrived to state in detail the facts of this case. One Gaya
Singh aud his brother Kunj Behari and his son Baideo were the owners
of a certain bigkadam zemindari interest in the Azamgarh district. Appur-
tenant to that bighadam interest was an interest in certain sir lands
which were cultivated by Gaya Singh, his brother and his son. The
present plaintiff-respondent, Udit Singh, brought a suit against Gaya
Singh, and in execution of his decree sold the property and purchased
it at auction Subsequently to that purchase Kunj Behari and Baideo
Singh, the brother and son of Gaya Singh, brought a suit to avoid that
auction purchase, and made as parties thereto the present plaintiff, Udit
Singh and Gaya Singh. That suit was dismissed by the first; Court, and
thereupon the plaintiffs appealed to the Court of [397] the DL-tricfc
Judge. While that appeal was pending, the. parties entered into a
compromise, the effect of which was that the plaintiffs' suit was to
be decreed to the extent of of the property and dismissed as to
the residue. In that compromise to which all the rarties to the suit

Second Appeal No. 1508 of 1888 frcm a decree of E. Galbraitb, Esq., District
Judge of Azamgarb, dated the 5th June 1868, cr.nfitming a decree of Mutuhi Man Mohan
Lai, Subordinate Judge of Azimgarb, dated the 30th November, 1887.

253



13 All. 398 INDIAN DECISIONS, NEW SERIES [Vol.

1891 were joined, Gaya Singh relinquished his rights in the i property in
MAY 26. favour of the present plaintiff, Udit Singh, and he declared that be would
not now or at any future time make any claim to the sir land or raise
APPEL- any claim to his ex-proprietary rights. Upon the basis of that compro-
LATE mise a decrae was prepared on the 7th April 1885. By that decree I of
OiVIL. * ne plaintiffs' claim was decreed and the rest of their claim wag dismissed.
On the 5th July 1887, the plaintiff Udit Singh c*ine into Court with his
13 A. 396= present suit, and, to put ib shortly, be alleged that, subsequntly to the decree
11 A.W N. of the 7th April 1885, having obtained possession of i of fche sir apper-
(1891) 140. taining to the i zemindari interest of Gaya Singh, namely, on the 26tih of
July 1865, and having cultivated the same, he was, upon the 6th
December 3885 disturbed in the possession of that -3 sir tha crops that
he had planted removed, and up to the date of suit he had been kept out
of possession, and therefore claimel a deoroe for joint possession of
6 bighas, 10 biswansis, 13| dhurs out of 19 bighas, 12 dhurs, representing
the -3 interest of Gaya Singh, and for damages in shape of profits of which
he had been deprived amounting to Ks. 286-15-11. The first Court
decreed the plaintiff's claim in part, thoug'i it negatived his allegation
that he had obtained possession of the sir, and also gave him Rs. 103 6-4
as damages. The lower appellate Court, to which an appeal was preferred
by the defendants, upheld that decision of the first Court, soecifically
holding that by the terms of the compromise and decree Gaya Singh had
relinquished his ex-proprietary rights. It is contended, now, in second
appeal on behalf of the defendants-appellants that whatf was done at the
time of the compromise of 1885 amounted to a transfer by Gaya Singh of
his ex-propripdary interest, and that in that case, such transfer, being prohi-
bited by law, could not be re cognised, and that, although the defendants
had been [398] parties to that compromise, they were nevertheless entitled
to maintain the plea they have now taken and to set up the illegality of the
transaction to which they were parties. No doubt there is authority for
that latter contention in the case of Phalli v Matabadal (1) and I am not
going to depart from what I said on that occasion, nor am I going to hold
that the defendants cannot make the defence they have set up. But the
question that arises to my mind is whether what was dene at the time of
the compromise amounted to a transfer of ex- proprietary rights. Now it
would not be denied for a moment that if there had been a transfer for a
consideration, either in money or in other respects, of that ex- proprietary
holding it would have been prohibited by law and could not have been
recognised by this Court. But in the Eull Bench case of Gulab Rai v.
Indar Singh (2) it was indicated that, although a transfer would be pro-
hibited by law, yet that the question of a simple relinquishment might
stand upon a different footing, and ib left that point open for determina-
tion upon a subsequent occasion.

Now as I understand the Eent Acb, and indeed I have expressed
myself fully as to the meaning of s. 9 of the Eent Act in the Pull Bench
case last referred to, the law prohibits an occupancy-tenant not at fixed
rate from transferring his holding ; but it also provides within the four
corners of the Act that he may relinquish his holding in such a way as to
relieve himself from liability for the rent of the same, and the one mode
in which that is to be done is provided in s. 31 and the following sections
of the Act. If then, for the purpose of relieving himself from his liability
to rent, a tenant may relinquish his holding, I cannot understand why

(1) 3 A.W.N. (1883) 7. (2) 3 A.W-N, (1883) 207.

254



GAYA SINGH V. UDIT SINGH 13 All. 400

there should be any general prohibition, either on grounds of public 1891
policy or other grounds, to prevent a man saying : " I no longer desire MAY 26.
to cultivate this particular land, or to exercise this particular right of
tenancy, or to remain in occupation of this particular piece of land." And APPEL-
unless I ?ee that there is in the statute a very clear and distinct prohibition LATE
to his doing so, [399] I shall certainly not go to the length of holding that there ClVIL
is any such prohibition. It is not pretended that the ex-proprietary interest
acquired by Gaya Singh upon the sale of his proprietary rights to the 13 A. 398 =
plaintiff was sold or transferred to the plaintiff for money consideration or 11 AWN.
the equivalent. Whatfrhe compromise does say is that Gaya Singh under- (1891) 140.
takes nover, now rr at any future time, to make any claim to the sir land
or to raise any claim to his ex-proprietary rights. I need not discuss the
possible difficulty that might arise in regard to the other incidents of
s. 9 of the Kent Act, namely, that which is concerned with the rights and
interests of the parses interested in the cultivation with the occupancy-
tenani-, because in this particular case those parties joined in the com-
promise by which Gaya Singh made the relinquisbrnent that he did.

Under these circumstances I am of opinion that the lower appel-
late Court took a right view and placed a proper construction upon
what was done by Gaya Singh at the time of Lhe compromise of
1885, aud thai; the decree has been rightly given to the plaintiff by which
he has been declared entitled to participation in the sir appertaining to the
zemindari interest to the extent of a i interest in the sir enjoyed by Gaya
Singh who relinquished all claims to that interest.

I dismiss the appeal with costs.

KNOX, J I will not go over the facts of this case, as they have
already been fully given by my learned brother Straight. I fully concur in
what has been said and in the decree which he proposes to pass in this
appeal. From a careful consideration of the facts of this case, and more
especially from the terms in which the compromise is expressed, I am of
opinion chat Gaya Singh when he had executed the compromise then and
there did not transfer, but voluntarily abandoned, his ex-proprietary rights
in the sir land. The words used in the compromise which relate to the
transfer of zemindari rights differ from those which relate to the abandon-
ment of the ex- proprietary tenure. The words are these :

[400] "Eksuls hissa par Udit Singh mudailah mai jumla hakuq
zamindari maiek suls baq sir sakit-ul-milkiyat va do suls hissa par mudai
malikana va zamindarana kabiz va dakbil rabe aur ek suls haq kasht
saikt-ul- milkiyat se musta'fi hain."

I see nothing in the Eent Act of 1881, by which any such voluntary
vacation of tenure by a person who has acquired an ex -proprietary right is
prohibited.

For these reasons I agree in the decree proposed.

Appeal dismissed.



255



13 All. 401



INDIAN DECISIONS, NEW SERIES



[Vol.



18gi



APPEL-

LATE

CIVIL.

-~~
13 A . 400

11 A W N
' ' '



13 A. 400 = 11 A.W.N (1891) ISO.

APPELLATE CIVIL.
Before Mr. Justice Mahmood.



RAM LAL DDBE AND OTHERS (Judgment-debtors'] v, HAB NABAIN
AND ANOTHEB (Decree-holders)."' (2nd June, 1891.]

Execution of rfezree Decree conditional onpaimeit of a certain sum'within a fixed time
Payment after time sfe:ifi(d in dfcree.

A Court having framed a decree conditioned on \be payment by the plaintiff
of a certain sum within a specified time has no power tc extend the time for
payment after the period mentioned in the decree has elapsed. Raja Ear
Narain Singh v. Chiuchrain Bhagwant Knar (I) referred to.

THE facts of this case sufficiently appear from the judgment of
Mahmood, J.

Mr. Niblett, for the appellants.

Munsbi Jwala Prasad, for the respondents.

JUDGMENT.

MAHMOOD, J. The facts of this case as they have been put before
me by Mr. Niblett for tho appellant's and Mr. Jwala Prasad for the res-
pondents, may be stated to be the following :

The decree-holders, respondents, are alleged to have executed a usufruc-
tuary mortgage with possession in favour of the judgment-debtors, appel-
lants, about thirty years ago. Under fcba mortgage the mortgagees are
admitted to have been placed in possession, and on the 2nd October 1888,
the decree-holders, respondents, obtained [401] a decree for possession of
the property by redemption on payment of Bs. 40, payable within 60 days
from the date of the decree.

The terms of this decree, dated the 2nd October, 1888, are important
because, in my opinion, the fate of this case turns upon the terms
the decretal order which is as follows :



This may be translated into English in the following words almost
literally :

" It is ordered and decreed that the plaintiffs' claim for redemption
of the mortgage be decreed, subject to the condition that the plaintiffs do
deposit Es. 40, in Court within 60 days from to-day for the defendants ;
the rest of the claim be dismissed, the plaintiffs paying their own costs
and also the costs of the defendants."

I have quoted the exact terms of the decree in order to indicate the
ground upon which my judgment will proceed, irrespective of the question



* Second Appeal No. 35 of 1890 from a decree of E. J. Kitta, Esq., District Judge
of Jaunpur, dated the 19th September, If 89, confirming a decree of Babu Promotho
Nath Banerji, Munsiff of Jaunpure, dated the 15th July, 1889.

(1) 13 A. 300.

256



11] RAM DAL DUBE V. HAR NARAIN 13 All. 403

whether or not this decree was properly made or properly framed. The 1891
decree became final and ifes terms cannot be interfered with by the Court JUNE 2.
executing the decree.

What happened next was that on the 21st May, 1889, the decree- APPEL-
holderg, respondents, made an application for execution of the decree of LATE
the 2nd October 1888, depositing with their application the above-mentioned CIVIL

sum of Rs. 40. The said sum was apparently accepted by the Court and '

ordered to be deposited, but on the same day the office reported that the 13 A. 400=
deposit was in contravention of the terms of the decree of the 2nd October 11 A.W.N.
1888. But notwithstanding this, the Court executing the decree allowed (1891) 150.
the application to be registered by its order of the 22nd May 1889.

The application having thus been registered, objections were raised to
it by the judgment-debtors (appellants before me) mainly upon the ground
that, by the dint of the terms of [402] the decree itself, that decree ceased
to be capable of execution, since the period for deposit had already elapsed.

These objections were disallowed by both the Courts below and 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 39 of 155)