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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 71 of 155)
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ClVIL. 8ens e- Why I think so is that the section commences with the words :
"Whenever at the hearing under s. 35Oit is proved." Now it seems to
14 A. 145= me that when the requirements of s. 350 have been satisfied and theexa-
12 A.W.N. mination of the applicant and the other requirements of that section have
(1892) 6. been concluded and there is sufficient proof on the recced to warrant the
Court refusing the application under s. 351, no option is left to the Court,
if a creditor or the, creditors apply to it to exercise its jurisdiction, but it
must do one of two things, either it must act on the materials on that record
taken before itself and then and there punish the applicant who has sought
to mislead the Court by a dishonest application or by dishonest proceed-
ings in regard to it, or must send the applicant before a Magistrate
to be dealt with in the ordinary course of law. If, as Mr. Amiruddin
suggests, s. 359 intended that the Court should hold a fresh and full
enquiry into all the circumstances again, it is a most singular fact to.
my mind that, assuming its conclusions to be adverse to the applicant, he,
under s. 588 of the Code of Civil Procedure, has no right of appeal. I
infer from that that what was intended by the Legislature to be appealable
was the result of the proceedings under s. 350 in regard to proof that
the applicant had done certain specific acts. I have only one more
word to add, and I am glad that the learned Chief Justice has
spoken with no uncertain voice on the subject, namely, that I entirely
and completely dissent from the view that Judges in administering
the statute-law are entitled to refer for guidance either to speeches in
Parliament or in the Legislative Council of this country or to reports made
by select Committees of that Council in reference to proposed legislation.
Our business is to administer the law as we find it on the statute book,
and not to endeavour to ascertain what this or that gentleman, no matter
how eminent he may be, intended to be the statute law. We must take his
intention from the words found in the section, and to accept any other
principle [154] or rule of construction would be to introduce an amount of
confusion and uncertainty into the administration of justice that would be
most undesirable. I believe it to be an axiom that the bofly of a bill is not
to be construed by its preamble, or, to put it more guardedly, if the preamble
provides for a wider mischief than the bill in its sections enacts, you are
not to give those sections a wider scope than their language properly
interpreted justifies. I think my brother Knox was right in holding that
the Subordinate Judge, having held on the 12th March, 1890, that certain
facts were proved in regard to the appellants, had no discretion when
moved by the respondent but to proceed to inflict such punishment as he
considered adequate to the misconduct of the applicants in regard to the
application they had made to the Court, provided that he did not exceed
the term of punishment allowed by the section. I dismiss the appeal
with costs.




14 A. 154 iF B.) = 12 &.W.N. (1892)13.

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


(Defendants)* [21st January, 1892.]
Civil Procedure Code, s. 559 Additionofa respondent by the Court Limitation.

Eeld by the Pull Bench that it is competent to a Court acting under s. 559 of
the Code of Civil Procedure to add a person as respondent in an appeal though
the time within which an appeal might have been preferred as against such person
has ezpiitd.

[F., 1 Ind. Gas. 518 ; R., 59 P.R., 1913 = 59 P.L.R. 1913 = 88 P.W.R. 1913 = 18 Ind.
Gas. 37 ; D , U A. 524.]

THIS was a reference mada to the Fall Bench by Elge, C. J., and
Mahmood, J. The facts of the case, so far as they are necessary for the
purposes of this report, appear from the judgment of Edge, G. J.

Pandit Sundar Lai, for the appellants.

Babu Jogindro Nath Chaudhri, for the respondents.


[155] EDGE, C.J. The question referred to the Full Bench is whether
a person brought in as a respondent to an appeal on an order made
under s. 559 of the Code of Civil Procedure is entitled to have the appeal
as against him treated under the Indian Limitation Act, 1877, as if it were
presented on the day on which the order of the appellate Court making
him a respondent was passed. The question is quite apart from any
question of limitation which might arise in the case of a person made a
party to the suit by an order passed under s. 32 of the Code of Civil Pro-
cedure, and in the answer which I now propose to give to this reference I
wish it to be distinctly understood that I am confining myself to the simple
question before me and expressing no opinion as to the limitation to be
applied in the case of an order made under any other section of the Code.
In this particular case the Bench which was hearing the appeal was satisfied
that one of the plaintiffs, viz., one Moti Gir, who was not made a party to
the appeal, was a person interested in the result of that appeal, and being
of that opinion that Bench directed notice to go, and ultimately Moti Gir
was added as a respondent to the appeal. At the time when he was
added as a respondent to the appeal the period of limitation within which
an appeal could have been presented as against him had elapsed. On the
further bearing of the appeal it was objected that, so far as Moti Gir was
concerned, the appeal was time-barred. Now it appears to me that the
power of the Court to act under s. 559 is only limited in two respects,
first, the person whom the Court may add under that section must have
been a party to the suit, and secondly, he must be a person interested in
the result of the appeal. When I turn to the Indian Limitation Act of
1877, I find no ceriod of limitation specified for the action of the Court in
that matter. Whether s. 22 of the Indian Limitation Act read with s. 4
of that Act would apply to the case of a person brought in under s. 32 of
the Code of Civil Procedure after the period of limitation, I need not con-
sider. There may be a difference so far as limitation is concerned, between

Second Appeal No, 169 of 1891.


JAN. 21,


14 A. 154
12 A W.N.
(1892) 13,


1892 the action of a Court under s. 559 and under s. 32. There is a wide
JAN. 21. difference between the wording of those two sections, particularly as to the
grounds upon which a person may be brought in as a party. [156]
FULL 8. 544 shows that in a case falling within that section a Court can in appeal
BENCH, afford, relief to a person such as is referred to there, although that*
person was not an appellant in the appeal, and although at the time when
14 A. 154 8uc h relief was granted such person could not have preferred an appeal by
reason of limitation. For the above reasons, and confining my judgment
i2 A.W.N. strictly to s. 559, I answer this reference by saying that there is no bar of
<1892) 13, limitation in regard to the hearing of the appeal as against Moti Gir.
STRAIGHT, J. I am entirely of the same opinion.
MAHMOOD, J. I also am of the same opinion and all the more
willingly, because all that has fallen from the learned Chief Justice, I
understand to be in full accordance with my judgment in the case of Sohna
v. Khalak Singh (1) where I discussed the scope of the powers exercisable
under s. 559 of the Code of Civil Procedure as to respondents, and en-
deavoured to show how the exercise of those powers, so far as limitation
is concerned, is distinguishable from the somewhat analogous powers
exercisable by Courts of first instance under s. 32 of the Civil Procedure
Code with reference to defendants.

KNOX, J. I agree with the learned Chief Justice and my brother
Judges in the answer which they have given to this reference.

14 A. 136 (F.B.) = 12 A.W.N. (1892) 22.

Before Sir John Edge, St., Chief Justice, Mr. Justice Straight,
Mr. Justice Mahmood and Mr. Justice Knox.

BAM KALI (Plaintiff) v. KEDAR NATH AND ANOTHER (Defendants) .*
[21st January, 1892.]

Limitation Suit by daughter entitled to possession cf imnoveable property on death of
Hindu widow Act XVof 1877 (Limitation Act), sch. ii, art. 141.

The daughter of a separated Hindu, who was entitled to succeed to her father's
immoveable property upon his widow's death, instituted, after the widow's
death, a suit for possession of such property against certain persons who, upon
the Hindu's death, had obtained possession and held it adversely to the widow.

Held, by the Pull Bench that art. 141 of soh. ii of the Limitation Act (XV of
1877) was applicable, and that limitation ran from the date of the widow's
death. Srinath Kur v. Prosunno Kumar Ghose ('2) followed.

[Diss., 20 A. 4<2 ; F., 23 A. 448 ; 25 A. 435 (437) 20 M. 493 ; R., 21 B. 646 (670);
D., 19 A. 857.]

[157] THIS was a reference to the Full Bench by Straight and
Knox, JJ. The facts of the case are sufficiently stated in the referring
order, which is as follows :

STRAIGHT, J. (Knox, J., concurring) The facts out of which the
question of law arises are as follows :

One Earn Sahai, to whom it is admitted the property in dispute
orginally belonged, died in the year 1862, leaving behind him a widow,
Musammat Phuledari, and a daughter, Musammat Bam Kali. It is
contended for the plaintiff that he was separate, and that succession to

* Second Appeal No, 908 of 1889.
(1) 13 A. 78. (2) 9 0. 934.



the property left by him should have gone to his widow, and after her to 1892
his daughter. It is found as a fact that the widow never had any posses- J AN a *
sion at all, but that from the time of the death of Bam Sahai, bis nephew
Janki, father of the present minor defendant Kedar Nath, took possession FULL
of the property and continued to hold it, and that property is now in the BENCH.
possession of the minor defendant. Musammat Pbulesari died in Sep-
tember 1887, and the present suit was instituted on. the 18th November ** * ls<
1887, and by it the plaintiff seeks to have her right to the property j^i!^
declared and possession of it given to her. Both the lower Courts have A.W.Hi
dismissed the plaintiff's claim, upon the ground that it is barred by I* 892 ' Z2t
limitation, in that the defendant and his father before him have acquired
a prescriptive title by adverse possession for a period of more than twelve
years. It is contended by Mr. Ghnlum Mujhtaba, upon the authority of a
Full Bench of the Calcutta High Court in Srinath Kur v. Prosunno Kumar
Ghose(~L), of a decision of the Madras High Court, Sambasiva v. Ragava (2),
and of the Bombay High Court in Cursandas Govindji v. Vundra-
vandas Purshotham (3), that the Courts below wrongly applied the princi-
ple of adverse possession to the facts of the present case, and that the
plaintiff, under article 140 or 141 of the Limitation Act, was entitled to
institute a suit, either upon the date when in the character of a reversiooer
the estate fell into her possession, or as a party, who on the date of the
death of a Hindu female was entitled to possession of immoveable property.

[158] On the other hand, Mr. Kashi Prasad has relied upon some
remarks of their Lordships of the Privy Council in Aumirtolall Bose v.
Rajoneekant Hitter (4), and Saroda Soondury Dossee v. Doyamoyee
Dossee (5), and reference has also been made to two rulings of my brother
Tyrrell and myself in Adi Deo Narain Singh v. Dukharan Singh (6), and
Ghandharap Singh v. Lachman Singh (7).

I am disposed to think that the current of authority in this Court
has always been to regard possession held adversely to the widow otherwise
entitled to possession of her deceased husband's estate, as running, not
only against the widow but against the reversionary heir or heirs. As,
however , there is the Full Bench ruling of the Calcutta High Court and
the rulings of two other High Courts taking a contrary view, and the point
is one of considerable importance upon which, if possible, uniformity of
decision should be secured, I think it would be best to refer for the consi-
deration and reply for the Full Bench the following question :

Does possession of the estate of a deceased separated Hindu held
adversely to his widow entitled to its possession operate for the purpose
of constituting adverse possession to the reversioner or reversioners
entitled to succeed upon her death to that estate ?

Maulvi Gulam Mujtaba, for the appellant.

Munshi Kaahi Prasad, for the respondents.


EDGE, C. J. The question referred to us is : " Does possession of
the estate of a deceased separated Hindu held adversely to his widow
entitled to its possession, operate for the purpose of constituting adverse
possession to the reversioner or reversioners entitled to succeed upon her
death to that estate? " The facts as stated in the referring order are, that
one Earn Sahai was the owner of the immoveable property in suit, and that

(1) 9 C. 934. (2) 13 M. 512. (3) 14 B. 482, (4) 2 I. A. 113.

(5) 5 0. 938. (6) 5 A. 532. (7) 10 A. 485.



1892 be died in 1862, leaving behind him a widow, who died in 1887, and a
JAN. 21, daughter, the plaintiff who brings this suit for possession. Bam
Sahai was a separated [159] Hindu, and assuming that the referring
FOLL order correctly states the facts, bis brother's son, on the death of Earn
* BENCH. Sahai, entered into possession of the property, and that nephew and
his son, Kedar Nafch the defendant, after the death of the nephew,
*$ A. 156 continued in possession up to the time of the suit. There is no
(F.BJ= question of an alienation here ; it is a simple question of whether the
12 A.W.N. plaintiff is barred by limitation from bringing this suit for possession
(1892) 22. the possession of the defendant and bis father being, according to
the referring order, adverse, and without title unless title was obtained by
limitation. There have been conflicting rulings on this point. There is a
Full-Bench decision of the High Court at Calcutta in Srinath Kur v.
Prosunno Kumar Ghose (I) in which it was held that under art. 141 of sch. ii
of Act XV of 1877, a Hindu reversioner who succeeds to immoveable
property has twelve years within which to bring his suit for possession
from the time when bis estate falls into possession. It is quite plain from
the dates that Act XIV of 1859 rtoes not apply to this case. The article
of the second schedule of Act IX of 1871 which would, I think, have
applied, if that Act had not been repealed by Act XV of 1877, is the same
in terms as art. 141 of sch. ii of Act XV of 1877. Consequently, if either
of those articles applied, having regard to the dates, this suit was within
time. I um of opinion that art. 141 does apply expressly in this case, and
that the twelve years began to run from the death in 1887 of the widow
of Earn Sahai and consequently that the suit is within time. In order
not to be misunderstood, I desire to say that I express no opinion as to the
article of Bfth. ii of the Limitation Act which might apply if in this suit
the plaintiff in order to succeed bad to get rid of, for example, an adop-
tion, an alienation or a deed. Until the question arises I will reserve my
judgment on that point. That is my answer to the question referred.

ST'RIGHT, J. Toe suit here was precisely one of the character con-
templated by art. 141 of sob. ii of the Limitation Act, 1877. The plaintiff
was a Hindu female entitled to the possession of immoveable property at
the death of her mother. Until the death of her [160] mother she had no
title to possession. We are told that the article as to adverse possession
is only to be applied to a suit where there is no other article applicable
to the kind of suit. Here, there is article 141 which is naturally applic-
able, and I think it should be applied ; and I agree with the view expressed
by the Calcutta High Court in the case reported in I.L.R., 9 Gale. 934. I
only wish to add as to the two cases reported in I.L R-, 5 All. 532 and
I.L.E. 10 All. 485 that, as to the first, no question of limitation arose,
and as to the second, it was not argued that the possession held adversely
to the widow was not adverse to the reversionary heirs ; on the contrary,
it was conceded in argument that it was. I accordingly answer this refer-
ence in the same way as the learned Chief Justice.

MAHMOOD, J. I have arrived at the same conclusion as the learned
Chief Justice and my brother Straight in answering the question enunciated
in the order of reference made by my brother Straight with the concurrence
of my brother Knox on the 21sb December 1891, and in what I am going
to say now my remarks will proceed on accepting the facts therein stated
as the grounds of my judgment.

The present suit was begun on the 18th of November 1887, so that

11) 9 C. 934.

Vll] BAM KALI V. KEDAE NATH 13 All. 161

according to the law as it then stood the limitation applicable is that 1892
prescribed by Act XV of 1877. The law of limitation as laid down in that J AN . ai/

enactment as also in the two preceding enactments, viz., IX of 1871 and

XIV of 1859, has two aspects, the principal one being that of laying down FULL
rules of law ad litis ordinationem giving the limits of the time within BENCH.
which a remedy may be sought for in a Court of justice, and the second
being that of laying down rules ad litis decisonem or rules of substantive ** * 138
law regulating one of the modes of acquisition of ownership, viz., by (F.B.)
prescriptive title. 12 * W.N,

Now, in the present case, the date of the suit having been noticed by ' '
me and the title of the plaintiff as asserted by her never having been tried
on the merits, her suit could fail only in one of the two ways which I
have above described, viz., either by showing that bv dint of the lapse of
the prescriptive period her title had vanished, [16 i] or by showing hat
her suit as a matter of seeking remedy was barred by law.

Now on the facts as stated in the order of reference Earn Sahai died
some time in 1862. The lapse of twelve years from that date would bring
such property as he lefb behind him to about the year 1874, when the
Limitation Act of 1871 had already come into force, so that it seems to
me clear on the facts that the plaintiff's title could not have vanished by
reason of anything in that enactment, because art. 142 of sch. ii of that
Act, corresponding to art. 141 of sch. ii of the present Limitation Act,
leaves no doubt in my mind on that matter.

It follows from what I have said that at the date of the present suit,
viz., the 18th November 1887, the question of prescriptive title, such as is
asserted aeainst the plaintiff, is governed by the present Limitation Act of
1877, and the learned Chief Justice and my brother Straight have already
explained that in this aspect of the case art. 141 of the present Act leaves
no room for doubt [as the Calcutta Court in the case of Srinath Kur v.
Prosunno Kumar Ghose (1) have held] that the present suit was not
barred by limitation. As to the prescriptive part of the defence, that
again rests on s. 28 of the present Limitation Act, but that section again
turns us back to the periods mentioned in sch. ii of that Act read with
the rules in the body of the enactment. For these reasons my answer to
the reference is the same as that of the learned Chief Justice and my
brother Straight.

KNOX, J. I agree with the learned Chief Justice as to the answer
which should be returned to this reference and have nothing further to
add to the judgment delivered by him.

A VII-60

e. 934.


1* A. 162 = 12 A.W.N. (1892) 27.


APPEL- Before Mr. Justice Straight and Mr. Justice Tyrrell.


_ (Plaintiff)* [19th February, 1892.]

S W N Mortgage Bond stipulating for recovery of loan " from my moveable and immcveable
property" Such imt>umtnt not a mortgage Limitation "Act XV of 1877 (Limv-
(1892) 27. tation Act], sch. ii, at is. 66, 116 Attachment of debt before judgment Civil Pro-

cedure Code, ss. 485, 486, 268 (a) Act XV of 1877, s. 15 Injunction or order
staying a suit.

A bond containing a stipulation " that if the principal and interest is not paid
up at the stipulated period, then the obligee will be at liberty to recover the
whole of bis money to gether with the interest fixed by instituting a suit from my
moveable and immoveable property, my own "milk" does not create a mortgage
upon any property of the obligor.

Too such a bond art. 66 of sob. ii of the Limitation Act (XV of 1877) is appli-
cable ; but where the instrument is registered, art. 116 may be applied to a suit
for failure to pay the bond debt.

An attachment before judgment under s. 485 read with s. 486 and s. 268 (a)
of the Civil Procedure Code, of a debt secured by a bond ; or an injunction
obtained by a third party and restraining the attaching creditor from subse-
quently bringing the bond to sale in execution of his decree : is not an injunption
or order staying the institution of a suit upon the bond by the obligee, within
the meaning of s. 15 of the Limitation Act. Shib Singh v. Sita Ram (1) followed.

[F., 8 Ind. Cas. 864 (866) ; 19 Tnd. Gas. 221 (222) = 24 M.L.J. 479 (481) = 13 M.L.T.
327 (329) = (1913) M.W.N. 335 (336) ; 1 O.C. 191 ; R., 8 O.C. 227 (231).]

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

Mr. A H. S. Reid for the appellant.
Mr. W. M. Colvin for the respondent.


STRAIGHT, J. The plaintiff-respondent at a sale in execution of a
decree on the 7th March 1887, purchased the bond upon which the present
suit. has been brought. That instrument is dated the 20bh June 1876,
and it was executed by one Lala Laik Singh, in favour of Kishen Das,
the proprietor of the firm of Gopalji Kishen Das, bankers, of Etawah.
The amount borrowed was Es. 7,000, the due f 163] date was the 1st
November. 1876, and the interest stipulated for was at the rate of Ee. 1
annas 8 per cent, per mensem. That bond was not paid upon the due
date and -the present suit was instituted upon it on the 6fch November
1888, that is to say, five days beyond twelve years from the due date of
the bond. The defendant-appellant in tho suit, namely, the Collector of
Etawah, as representing the Court of Wards, is in possession of the estate
of Lala Laik Singh, Lala Laik Singh has been for some time deceased, and
the present owner of the estate is Lala Prithi Singh, his nephew, who is
a disqualified proprietor by reason of his unsoundness of mind. One
Musammat Thakurani Eaj Kuar is the wife of Lala Pirthi Singh, and she
has been treated as Sarbarahkar of her husband's estate by the Court of

* First Appeal, No. 131 of 1889, from a decree of Babu Ganga Saran, Subordinate
Judge of Mainpuri, dated the 8th April 1889.

(1) 13 A. 76,



The suit of the plaintiff is met by the plea of limitation, and that 1892
plea proceeds upon the interpretation which the defendant contends should FEB. 19,

be placed upon the language of the bond of the 20th June 1876. If

it creates a mortgage of immoveable property, admittedly the suit is APPEL-
within time, if it does not create a mortgage of immoveable property, LATE
then either art. 66 or art. 116 of the Limitation Act is applicable, and in CIVIL,
the aspect of either of those two articles, the suit is barred, unless the
plaintiff is entitled to pray in aid certain acknowledgments made on II A. 162
behalf of the obligor, which would come within the meaning of s. 19 of 12-A.W.N,
the Limitation Act. It is obviously necessary, therefore, in the first place (1892) 27.
to examine the language of the bond of the 20th June 1876, in order to
see if it does create a mortgage upon immoveable property. I presume
there can be no question that an instrument that is so obscure and indefi-
nite in its terms as to be incapable of having effect given to it, must be
treated as void for uncertainty. In the case of Shadi Lai v. Thakur Das (1)
I said what I had to say upon the subject, and I took occasion then
to refer to a ruling of the learned Chief Justice and my brother Tyrrell
in Bamsidh Pande v. Balgobind (2) as to which I remarked that it seemed

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 71 of 155)