Chas. A. Stevens & Bros.

The 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

. (page 72 of 155)
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 72 of 155)
Font size
QR-code for this ebook

to me to have gone as far as it was possible to go. Jn the present instru-
l84f]ments the words are: "I do hereby agree 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 his money, together with the interest
fixed by instituting a suit from my moveable and immoveable property,
my own 'milk,' I will offer no objection, hence this bond has been
executed that it may serve as a document."

It is contended for the plaintiff that we should regard these words as
amounting to a covenant of a mortgage, and that "my immoveable property"
is sufficient to satisfy that condition. It appears to me that the language
of this instrument is far too vague to hold any such view or to warrant
the inference that we are asked to draw that the parties at the time that
instrument was made contemplated the creation of a mortgage of a definite
estate. The terms really come to no more than this, that if the money is
not paid up upon the due date the obligee will be entitled by due
process of law to recover the amount of the debt which became due by
breach of the obligation. I am therefore of opinion that this bond of the
20th June 1876 did not constitute a mortgage within the well-understood
meaning of the term.

That being so, it seems to me the instrument was no more than a
single bond to which in direct terms art. 66 of the Limitation Law would
be applicable, the date for payment being mentioned in the bond ; but,
accepting the view that has always been adopted in that Court in such
matters, that, where the instrument is registered, art. 116 may be proper-
ly applied, and that the suit for the failure to pay the bond debt may be
regarded as in the nature of one for compensation in damages for such
failure to pay, I readily apply that article. That being so, the suit should
have been brought within six years from the 1st November 1876. But, as
I have stated, it was not brought until the 6th November 1888, and in view
of these facts it is barred. But it is contended for the plaintiff that by a
deposition made by one Ajudhia Prasad, on the 14th October 1882, an
acknowledgment of liability in respect of this bond debt was given by which
the defendant as representing the estate of the original obligor is bound.

[165] With regard to the authority of Ajudhia Prasad I was at first

(1) 12 A. 175. (2) 9 A.. 168.


All. 166



1892 somewhat inclined to doubt whether be was a duly authorised agent for
FEB. 19. the purposes of making' that acknowledgment. But upon examining the

terms of the power-of-attorney of- the 12bh April 1880, made by the

APPEL- Sarbarahkar and wife of the disqualified proprietor in favour of that person,
LATE and to tbe circumstances in connection with this property, I think it may
CIVIL perhaps be inferred that he was entitled to make such an acknowledg-

rnent, and that Lala Pirthi Singh, the disqualified proprietor, is bound by

14 A. 162= that acknowledgment. But supposing this authority to be, as I have
12 A.W.N. said one that would bind the disqualified proprietor, it would still be
(1892) 27. insufficient to prolong the period of limitation up to the date when the
suit was in fact brought. The mode in which the plaintiff gets out of
this further difficulty is by contending that a notice issued by the Collector
of Etawah on the 12th April 1888, was another acknowledgment on
behalf of the disqualified proprietor of the existence of this debt. It
becomes important to see exactly the circumstances under which than notice
was issued. It purports to be signed and was signed in fact, or initialled
rather, by the Collector of Etawab, and in the deposition which he made in
March 1889, a print of which is upon this record, we are very clearly
informed as to the precise circumstances that were present to him at
the date of his issuing that notice. He says in effect that at that time he
was inquiring into the question as to whether a petition of the wife of the
disqual fied proprietor that the estate should be taken under the Court of
Wards should be acceded to, and he says when asked this question :
" Did you by this order of the 12th April 1888, marked A, mean directly or
indirectly to admit the debt of any creditor?" "I did not up to that time
know even the names of the creditors of the riasat. I came to know within
three months from the 7th Anril 1888, that there was one other bond in the
name (in favour) of Gopal Jai Kishen Dap." What I mean is: "How much
money Eani Kishori claims against the Harchandpur estate on the basis of
the bond, which document was in the name of Gopal Jai Kishen D,is?" " Up
to [166] the 12 l .h April 1888 I was not aware of any particular document
or debt. My object in passing that order was to know what waa the
amount of the debt and who were the creditors. I do not think I have
power to settle any debt without the sanction of the Board. I wrote to
the creditors that what I bad settled was with the sanction of the Board,
and I made a report of that to the Board also. Information of the
Harcbandpur estate having been placed under the Court of Wards was
received in the Collectorate of Ef.awah from the Board on the 7th April
1888, and that very order contained a direction that a report should be
made after ascertaining a detail of the debts, and under this order the
order of the 12th April 1888 was issued."

I find myself wholly unable to hold that upon this state of facts which
must be borne in mind in order to gather the meaning of the language of
the notice of the Collector of Etawah, he in the sense of a. 19 of the Limita-
tion Act admitted any liability on behalf of the disqualified proprietor in
respect of the debt due under the bond made by Laik Singh in favour of
Kishen Das. The suit in my opinion is barred by limitation.

But it is further contended, and this upon the strength of the view
taken by the learned Subordinate Judge, that in reference to certain
litigation that went on between the parties, the plaintiff as the purchaser
of the bond in suit under the execution eale of March 1887, is entitled to
allowance for the considerable period of time during which those proceed-
ings were pending. The learned Subordinate Judge has given the plaint-
dff the benefit of the period which elapsed from the 17th May 1881 to



the 7th March, 1887, and no doubt, if that concession were to ba made 1892
in her favour her suit would be within time. But it is necessary to FEB. 19.

examine the precise nature of the facts upon which the learned Subordi-

nate Judge came to his conclusion, in order to see how far in law it is APPEL-
warranted. LATE

I have stated that the bond of the 20th June, 1876, was made
by Laik Smgh in favour of Kishen Das. It appears that on the 5th
May, 1881, one Rani Kishori, who had an account with the firm of H A. 162 =
[167] Gopalji Kishen Das, of which Kishen Das, the obligee, was one of 12 A W.N.
the members, instituted a suit for an account of her dealings with that (1892) 27.
firm, and on the 17th of the same month she obtained an order of attach-
ment before judgment under s. 485 of the Code of Civil Procedure. On
the 20th September, 1881, she obtained a decree and threatened with sale
in execution the bond which had been so attached. One Kirpa Dial then
brought a suit for a declaration of his title to the bond upon the allegation
that it had been assigned to him by the obligee on the 17th April, 1881.
On the 21st August, 1882, Kirpa Dial got an injunction directed to Rani
Kishori, the successful decree-holder in the other suit, restraining her
from bringing to sale in execution of her decree the bond of the 20th
June, 1876. The suit of Kirpa Dial was dismissed by the first Court
on the 7;h June, 1881, and an appeal was preferred to this Court from
that decision by Kirpa Dial, pending the determination of which appeal
Kirpa Dial came to this Court, and I, by an order of the 4th August,
1884, granted a fresh injunction restraining Rani Kishori from selling
the bond. The appeal of Kirpa Dial was subsequently dismissed, and in
execution of Rani Kishori's decree the bond of 20th June, 1876, was sold
upon the 7th March, 1887. and was purchased by the plaintiff-respondent,
and this is the title upon which she comes into Court. The learned
Subordinate Judge has treated the period from the date of the aUacbment
of the bond by Rani Kishori in her suit, viz , the 17th May, 1881, to the
date of the purchase by the plaintiff, on the 7th March, 1887, as a period
during which by reason of the attachment and injunction the party enti-
tled to recover the amount of that bond was prohibited from putting that
bond into suit and recovering on it, and in this view of the matter has
applied the principle of s. 15 of the Limitation Act.

I am not preoared to concur in that view. I think that the learned
Chief Justice in the case of Shtb Singh v. Sita Bam (1) has very satis-
factorily and clearly dealt with the question that thus arises, and I
unhesitatingly adopt his view ia preference to thau expressed by Sir
Charles Turner in the case of Shunmugam v. [168] M'jidin (2). It is true
that according to the terms of s. 486 of the Civil Procedure Code an
attachment before judgment is to be made in the manner provided for the
attachment of property for the execution of decree for money, but I am
not prepared to say that the words used in s. 268, cl. (z>, " the creditor from
recovering the debt " mean tiiat the creditor is prohibited from instituting
the suit he is entitled to bring to assert his right to the debt. What I under-
stand s. 268 to mean is that the debt is not to be realized by the judg-
ment-debtor who is a creditor of some third party ; and not that he is to
refrain from, in the ordinary course of law, putting his claim into Court
and asserting his right to such money as may be due to him. Neither
under this order of attachment which, though not before us, I must pre-
sume to have been drawn up in the ordinary way, nor in the injunction

(1) 13 A. 76, (3) 8 M, 229.


14 All. 169



1892 which went first under the order of the lower appellate Court in the
FEB. 19. suit of Kirpa Dial, and next under my order in the appeal of Kirpa
Dial to this Court, was there any prohibition to the party in whose
APPEL- hands the bond of the 20th June 1876 was, to restrain him from putting that
LATE bond insult and obtaining a decree. If the decree had been obtained there
CIVIL, would have been nothing to prevent the judgment-debtor under one of the
clauses of s. 268 from paying the money into Court, while under the same
14 A. 162= section, cl. (a), there would have been a prohibition to refrain from realizing
12 A.W.N. fc}j e amount. I do not think that either in the order of attachment or in
'(1892; 27. the injunction granted by the lower appellate Court or by this Court was
there anything amounting to an injunction or order to restrain the obligee
from maintaining an action upon the bond of the 20!;h June, 1876, and I
am unable to appreciate or understand any defence that the obligor could
have set up on the facts, as I have stated them, which would have been a
successful answer to the suit. This being the view which I take, it seems
to me that there is in the way of the plaintiff succeeding an insuperable
bar of limitation and that she must fail. Decreeing the appeal, I reverse
the decree of the lower Court, and the suit of the plaintiff will stand dis-
missed with costs in all Courts.

[169] TYRRELL, J. I entirely agree with the order which my
brother Straight had just made with regard to the disposal of this appeal
and with bis reasons for making that order ; but I think it right to add
that in one respect I am not altogether in accord with my learned brother,
for I agree with the Court below in its finding that Ajudhia Prasad was
not an agent duly authorized to acknowledge and sign an acknowledg-
ment on behalf of Laik Singh in respect of his liability under the bond of
the 20fch June, 1876. I think that the learned Subordinate Judge has
given sufficient and sound reasons for coming to this conclusion. I agree
that the appeal should be decreed and the suit of the respondent should
be dismissed with costs here and below.

Appeal alloived.

14 A. 169 (P.O.) = 19 I. A. 9 = 6 Sar. P.C.J. 106 = 15 Ind. Jur. 750.



Lords Watson, Hobhouse and Morris, Sir R. Couch and Lord Shand.
[On Appeal from the High Court for the North-Western Provinces.]


(Defendant). [19th November, 1891.]
Evidence Failure to prove an alleged transa-tion of lending money.

Upon the evidence the decision of the High Court was affirmed a" to a question
of fact, viz., whether the defendant's deceased father had, or had not. in his
lifetime, in consideration of a payment to hia order by the plaintiff, promised
repayment. The High Court, reversing the decree of the first Court, had found
that there had been no sufficient proof of the alleged transaction. This was the
conclusion, also, on this appeal ; and although it was possible that the money
might (as it was indicated in the judgment) have been wrongly obtained from
the plaintiff by persons about him, it was not shown to have been received by the
alleged borrower.

APPEAL from a decree (1st May, 1888) of the High Court, reversing
^ decree (10th December 1886) of the Subordinate Judge of Benares.



The appellant, who carried on business in Benares as a banker,
obtained a decree in the Subordinate Judge's Court for Rs. 17,614 against p NOV. 19.
the respondent, ttre Raja of Befctiah, district Sarun, who succeeded his
fcfcher, on the death of the latter, on the 27bh December, [170] 1883. PRIVY
By his plaint the appellant claimed Rs. 12,000, with interest at 12 per COUNCIL.

cent, per annum, which he alleged that he had advanced to Musammat

Sarab Mangla qn the 28fch November, 1883, under ao order of that date, ** * 16S
signed by the late Raja, Rajendro Kishore, a month before his death. (P.O.)

Filed along with the plaint was an alleged parwana or order purport- 19 !* 9=
ing to have been signed by Raja Rajendro Kishore, in which he acknow- 6 Bar- P.C.J,
lodged the advance at his request, of Rg. 12,000 to Musammat Sarab 106=13
Mangla, and promised to repay this sum with interest at the above rate I 01 ^ JUK.
on or before the 16th November 1884. Also was filed what purported to 78 -
be a receipt of the same date, signed by her, for that sum, stated to have
been received through Sukdeo Girdhar Das and Beni Misr.

The defence was that the parwana did not bear the signature of the
late Raja ; that it was a forgery ; and that no such advance was made on
his authority, The issues were as to the genuineness of the alleged
parwana, and the liability of the defendant 'to pay the amount.

The decree of the first Court having been reversed by the High
Court (STRAIGHT and MAHMOOD, JJ.), on this appeal, Mr. J. Graham,
Q. C., and Mr. H. Cowell, appeared for the appellant. They contended
that the proofs were sufficient. .

Mr. R. B. Finlay, Q. C., and Mr. B. V. Doyne, for the respondent,
were not called upon.

Their Lordships' judgment was delivered by LORD MORRIS.


LORD MORRIS. This is an action brought by a banker, or money
lender, against the heir of the deceased Maharaja Rajendro Kishore, and
for the recovery of a sum of Rs. 12,000, and interest, alleged to have been
borrowed from him by the Maharaja shortly before his death. The
transaction is said to have occurred on the 28th November, 1883, and
the Maharaja died on the 27th December following. In an action brought
to recover money against an dxecutor, or, as in this case, the heir of a
deceased person, it has always been considered necessary to establish as
reasonably clear a case as the [171] facts will admit of, to guard against
the danger of false claims being brought against a person who is dead and
thus is not able to come forward and give an account for himself.

The present case depends upon the testimony of two persons, Beni
Misr and Sukhdeo, who detail a transaction which is in many respects
of an improbable character, and would in any event require corroboration.
Beni Misr is a Gomashta of the plaintiff. Sukhdeo appears to be a
broker. He is described, in the judgment of the High Court, as a person
who " hangs about the Bazaar ready to give his services in any way people
" may feel disposed to employ him .... a sort of tout, willing to
11 mix himself up in any sort of transaction, out of which he can obtain
11 some remuneration for his trouble." He says that he was one day
accosted by a servant of the Maharaja, named Dammal Pande, and
requested to raise a loan for the Maharaja. He describes the conver-
sation between himself and Dammal Pande, and his going to Beni Misr.
He relates the terms upon which Beni Misr agreed to the loan for the
Maharaja, namely, 1 per cent, per mensem, and how Beni Misr required
that tha Maharaja should execute a document upon a hundi or stamped



paper. He describes how be went back to Dammal Pande and informed

Ncv. 19. him of the terms of the loan ; bow Dammal Pande went inside the house

where the Maharaja was, and came back saying that the Maharaja agreed

IrBivY j. Q k e t errngi an d how he got a sum of Rs. 9 from Dammal Pande to

COUNCIL, purchase the hundi paper. He says specifically that he purchased the

1 ,'7~Tgg Inundi paper a " day before that on which the Maharaja signed the

p ' hundi," namely, on the 27th November 1883. But the hundi paper baa

19 1 A' 9= u P n ^ ^ De oaemorandum of the date of its sale, namely, the 28th

6 s ' P C J November 1883, the day upon which the Maharaja is alleged to have

106 = 15 ' s ^ ne d it. It is, therefore, in the absence of explanation, impossible that

, he could have bought it on the 27th* seeing that on the face of it ib

purports to have been issued on the 28th. The evidence of Sukbdeo,

' " therefore, at the. outset is met by this grave discrepancy, which is not a

mere inaccuracy of date, but an inaccuracy which goes to the very root

of the transaction which he purports to describe.

[172] The other witness, Beni Misr, disposes to the fact of his
having accompanied Sukhdeo to the house of the Maharaja. There is
some want of distinctness as to whether he alleges that he saw the
Maharaja sign the parwana or'not. He only states that the Maharaja
signed it; whereas Sukbdeo says that he and Beni Misr went into the
Maharaja's room, and that the Maharaja signed it. Their Lordships
would point to the difference between his having merely said that the
thing was done, and bis having said that, he had seen it done.

The case of the plaintiff therefore, who appears to have had no
personal dealing whatsoever with the Maharaja in this transaction, and
who never saw him, depends altogether on the evidence of Beni Misr and
Sukhdeo, and by their evidence he must stand or fall. There has been
no corroboration of any kind of the story of these two witnesses brought
forward on the part of the plaintiff. Indeed at the trial, and certainly in
the argument of counsel on his behalf here, counsel seemed to think that
the fact of two men having sworn to the signature of the Maharaja to
this instrument; establishes the case so completely as to render it almost
unnecessary to corroborate it on any particular. Their Lordships cannot
corncur in that view.

The transaction is open to a good deal of comment, both as regards
its inception and the mode in which it was darried out. The Maharaja
had persons who were acting for him in the management of his affairs of
considerable importance in his household, and it seems unlikely that
Dammal Pande would have been employed at all by him in the matter.
Then there is the significant fact of this large sum of money being raised
by him just a month before his death, and with nobody of his household,
apparently, brought into privity with it, or knowing anything about it.
The discrepancy of date has been already mentioned. There is also a certain
degree of difficulty attending the fact that the parwana purports to be
drawn at twelve months' date, whereas no application for the money
appears to have been made for some tnonths afterwards, at all events to
Mr. Gibbon, the manager, to whom the plaintiff ultimately [173] wrote.
He alleges in his first letter to Mr. Gibbon, of the 30th March 1885, that
he had previously written for the money, but there is no distinct testimony
of that. A reply was written to him by Mr. Gibbon, requiring to know for
what necessary purpose, in what manner, and through whom the money
was advanced, and what evidence the plaintiff had in his possession that
it was advanced, seeing that it did not appear from the inquiry and state-
ments of the managers of the private expenses of the Maharaja that it was



drawn by him. To that letter the plaintiff does not appear to bave given
any direct answer. He alleged that he was ready to show the parwana, Nov. 19.
but he passed by all the other demands made upon him to state the circum-
stances ucder which the money was advanced. Possibly, as stated by PBIVT
Counsel for the plaintiff, parties in India, when a dispute on such a matter COUNCIL.

has arisen, may be chary of showing their hand, and, although they have

an honest case, may wish to state as little as they can when they see that ** A. 1S9
their claim is going to be resisted. (P.O.)

The patwana purports to declare that a thing bad been done which 19 1-A- 9 =
in reality was only going to be done ; because it says. "As you have 6 Sar - &.Q.
paid Rs. 12,000 to Musammat Sarab Mangla according to my permission, 106 = 15
this money is due to you from me ; and so 1 declare it in writing that I I D< * Jur.
shall pay to you the principal amount, together with interest at 1 per '^.
cent, per mensem, within a year, and take back this panoana " Whereas
in any case the money had not been paid at that time. The explana-
tion given is that the parwana was entrusted by the Maharaja to one of
his own servants to be deposited with Sarab Mangla, and that she was
not to hand it over until she had actually got the money.

In addition to her banding over the parwana the plaintiff appears to
have required from her a receipt for the money, which has been relied
upon by him as being a document of the last importance. In is in the
following terms : " I, Sarab Mangla, do declare that according to a
parwana of the Maharaja of Bettiab with a direction for pay-
ment of money to me, I have received the sum of Rs. 12,000 in a lump
sum from them through Sukhdeo, Girdhar [174] Das, and Beni Misr,
and there is now nothing due. I bave therefore granted this receipt in
order frliat it may be of use when needed."

The document, as well as the parwana itself, is impeached as n forgery.
As regards the parwana itself, there is the evidence in favour of it, as has
been already observed, of Beni Misr and Sukhdeo. As against ib there is
the evidence of three witnesses on the question of handwriting, namely,
Mr. Gibbon, an Englishman, who was the manager of the Maharaja ;
Madbo Narain, his paymaster ; and Har Prasad, his office-keeper. These
three witnesses all depose that the signature to the parwana is not in the
handwriting of the Maharaja. Sarab Mangla deposes that she never
got the Rs. 12,000, and that the receipt referred to does not bear her

If these documents were forgeries it does not follow that the plaintiff
is involved in them. He may have given his money, and upon the evi-
dence it. would appear that he did give ; bis money, to Beni Misr, to be
handed over to the Maharaja. He may bave been misled by Beni Misr,
and Beni Misr and Sukbdeo may have been in a conspiracy to obtain the
moriey for themselves, and the money may have gone from the coffers of
the plaintiff and still never have reached Sarab Mangla, whom the Maha-
raja is said to have expressly ordered to receive it. It therefore rioes not
appear to their Lordships that it is at all necessary to hold, i or that
there if evidence in the case which would lead to the conclusion, that the
plaintiff was in any way a party or privy to such a transaction.

It should never be forgotten that the onus of proof in this case lies
upon the plaintiff. It is for him to satisfy their Lordships that he has estab-

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 72 of 155)