Copyright
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 73 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 73 of 155)
Font size
QR-code for this ebook


lished a reasonably clear case. But he has failed to bring forward the
evidence which he ought to bave done, when he knew that this transac-
tion was called in question, and that the parwana and the receipt were
impeached as forgeries. There are no less than five persons who ought to

481
A VII 61



14 All. 175 INDIAN DECISIONS, NEW SERIES [Yol.

have been called in support of his case, but were not. The first person
Nov. 19. wa8 fcne plaintiff himself, although, as their Lordships have already said,

there is no evidence [175] establishing that he was party to this attempt

PRIVY fco fi x an untrue liability upon the heir of the Maharaja. It would have
COUNCIL keen better, to say the least of it, if he had come forward and described

' the transaction so far, at all events, as he was able. But he did not come

14 A. 169 forward. The second witness, whose evidence would have been of the

(P. C.)= last importance, was Dammal Pande, for he appears, according to Sukh-

19 I A. 9= deo's testimony, to have been the person who initiated the transaction by

6 Bar. P.C.J going to Sukhdeo and saying that he had been asked by the Maharaja to

106 = 15 obtain the Rs. 12,000. But Dammal Pande was not produced. The third

Ind. Jur. missing witness was Bhagauti Parshad. He is said by Sukhdeo to have

750. written the receipt, to have taken it to Sarab Mangla for her signature, to

have obtained her signature to ifc, and to have given it with the panoana

to Beni Misr. His evidence would have been most material. But he was

not called. The absence of Girdhar Das is still more extraordinary. He

is named in the receipt as being one of the three persons who paid over

the money to Sarab Mangla, the other two being Beni Misr and Sukhdeo.

Yet he was not called. Neither has there been any attempt to identify

the Muharrir, to whom no name has been given, who was alleged to have

written the parwana itself. It was suggested that he was the same person

as Bhagauti Parshad who wrote the receipt. But no evidence has been

given that this was so.

Thus, all the probabilities of the case are against the plaintiff. The
evidence of the handwriting is distinctly against him, and he has in no
way corroborated, as he might have done, the testimony of Beni Misr and
Sukhdeo. Neither has any trace been found in the books of the Maharaja
of any loan of this sort. To this Counsel for the plaintiff replied that, it
being a loan to this lady, who was his mistress, it was not a transaction
that would be likely to appear in the Maharaja's books. But the fact
nevertheless remains that no trace of it can be found there.

It appears to their Lordships that the decision arrived at by the
High Court on appeal from the Subordinate Judge of Benares, is right, and
they will humbly advise Her Majesty to affirm the decree [176] of the
High Court and dismiss this appeal. The appellant must pay the costs
of the appeal.

Appeal dismissed.

Solicitors for the appellant : Messrs. Banken Ford, Ford, and Chester.
Solicitors for the respondent : Messrs. T. L. Wilson and Co.



482



TJII] GAYA PBASAD V. BAIJ NATH 14 All. 177

li 1. 176 = 12 A.W.N. (1892) 25. 1892

APPELLATE CIVIL. JAN.JS.

Before Sir John Edge, Kt,, Chief Justice, and Mr. Justice Tyrrell. APPEL-

LATE

GAYA PRASAD (Defendant) v. BAIJ NATH AND ANOTHER, CIVIL.
(Plaintiffs).* [28th January, 1892.]

Lease Assignment by ths Official Liquidator of led.se hzld by a Company in liquidation ' w H
Assig-iment not in writin-j registered Suit for rent Use and occupation. " A.W.N,

In the oourae of the winding up of a Company, the Official Liquidator, with (*892) 28.
the sanction of the Court, sold the remainder of a lease for a long term of years
reserving a rent, which was held by the Company. No written assignment waa
ever executed, but the Official Liquidator handed over the lease to the purchaser,
who entered into possession. In a suit by the lessors against the purchaser for
rent,

Hied that whether the assignment was invalid because not in writing and
registered, or whether it fell within s. 2 (d) of the Transfer of Property Act (IV
of 1882), the defendant, even if not liable as assignee in law of the lease, was
liable for rent as for the use and occupation, and under such circumstances the
rent fixed by the lease would ba a fair basis for the amount to be decreed.

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

The Hon. G. T. Spankie, Mr. Mehdi Hasan and Babu Bajendro Nath
Mukarji, for the appellant.

[177] Mr. T. Conlan and Munshi Ram Prasad for the respondents.

JUDGMENT.

EDGE, C.J., and TYRRELL, J. This was a suit for rent. The plain-
tiffs' suit was decreed by the first Court, and the defendant's appeal was
dismissed by the lower appellate Court. The facts of this case are as
-follows :

On the 1st December, 1883, the plaintiffs granted a lease of the land
and the buildings thereon in the city of Gawnpore to the Cawnpore Cotton
Ginning Company for a long term of years, reserving a rent. The deed
contained several covenants to be performed by the lessors, their succes-
sors and assignees.

The Company got into difficulties and was wound up under the
Indian Companies Act, 1883. In the process of winding up, the Official
Liquidator, with the sanction of the Court, sold the property of the
Company in the land in question, that is, their interest in the lease, by
auction. The defendant was the purchaser. There was no written
assignment ever executed, although the sale took place as far back as
the llth October, 1886. The Official Liquidator handed over the lease
to the defendant and the defendant entered into possession of the land
included in the lease and the buildings and the property thereon. If the
defendant is liable as assignee of the lease, the plaintiffs are entitled to the
decree for rent and interest which they have obtained. If, on the other
hand, by reason of there having been no assignment in writing registered
of the lease he is not in law, according to the Transfer of Property Act,
the assignee of the lease, it doas not follow in our opinion that he is not
liable for the amount which has been decreed. It has been contended on
behalf of the plaintiffs that the sale having been effected under an order of

* Second Appeal No. 671 of 1890, from a dearee of G- J Nicholls, Esq., District
Judge o! Cawnpore, dated the 20i h March, 1890, confirming a decree of Maulvi Akbae
fiusain, Subordinate Judge of Cawnpore, dated 1th February, 1890.

483



14 All. 178 INDIAN DECISIONS, NEW SERIES [Yol,

1892 a competent Courb sanctioning the act of the Official Liquidator, s. 2 (d)
JAN. 28. of the Transfer of Property Act, 1882, applies, and excluding the transac-

tion from the requirements of that Act, the defendant is in law the assignee

APPEL- O f the lease. Ife is undoubted that everything was done to make him assignee

LATE of the lease unless the case comes within the Transfer of Property

ClVlL, Act. It is by no means eaey to say whether or not the gale in the present
case was within the meaning of s. 2 (d) of that Act, a transfer by or in

11 A. 176= [178] execution of an order of a Court of competent jurisdiction. Certainly

12 JL.W.N. without the order sanctioning the sale the defendant would have got no
(1892) 23. title from the Official Liquidator. In one sense it might be considered that

the transfer in question was in execution of the order which was made.
However that may be, we do not think it necessary actually to decide
whether s. 2 (d) of the Transfer of Property Act, 1882, applies. Assuming
for the moment that the sale in this case was not a transfer within the
meaning of s. 2 (d), and that consequently there has been no good assign-
ment under the Transfer of Property Act, 1882, of the lease with its
benefits and liabilities to the defendant, we are of opinion that he
still is liable for the amount claimed. He purchased the interest of
the Company at the sale, he got, and holds, possession of the lease,
and he took, and since the date of the sale has held, possession of
the land and buildings thereon. He cannot be treated as a trespasser.
Although in one sense his title may be infirm, he was let into posses-
sion by the Official Liquidator acting under the sanction of the Court.
In the latter view, we consider that forsthe time in respect of which the
suit is brought, the defendant, even if not liable as assignee in law of the
lease, is liable for rent as for the use and occupation, and under such
circumstances the rent fixed by the lease would be a fair basis for the
amount to be decreed. The result is that in whichever aspect the defend-
ant's possession is regarded, and, whichever may be the true view of that
position, the defendant in our opinion is liable for the amount decreed.
That decree we shall not disturb. We ought to say in conclusion that
Official Liquidators who take leases and subsequently as such Liquidators
sell the interest of the lessee had better, for their own protection and to
avoid any question as to their continuing liability, execute in favour of the
purchasers written assignments of the leases and see that they are regis-
tered. We dismiss the appeal with costs.

Appeal dismissed.



14 A. 179 (F.B.) = 12 AWN. (1892' 49.

[179] FULL BENCH.

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



PEM SINGH AND OTHERS (Defendants) v. PARTAB SINGH (Plaintiff)'*

[10th March, 1892. J

Hindu Law Joint Hindu family Btpothe ation by father of joint ancestrnl estate
Property described as " Tiny haqug auminda*i opnn "- Decree, entori'na hipi>theca-
ticn - Attachment of estate Suit ty sons lor ceclara'.inn that only father's int&rest
was affected by hypothecation Burden of prcof.

Where a Hindu son comes into Court to assail either a mortgage made by his

father, or a ...decr.es. passed against his father, or a sale held or threatened in

execution of such decree whether it be upon a mortgage security or in respect
of a simple mone^ debt where there is nothing to show any limitation of the

* Second Appeal No. 893 of 1889.



YII]



PEM SINGH V, PARTAB SINGH



14 All. 180



interest sold or threatened with sale or charged in a security or dealt with by a
decree, it rests upon him, if he seeka to escape from having his interest affected
by the eale, to establish that the debt which he desires to be exempted from
paying was of such a nature that he, as the son of a Hindu, would not be under
a pious obligation to discharge it, or that his interests in the property were not
covered by the mortgage or touched by the decree or nffeoted by the pale certifi-
cate. Beni Madho v, Basdeo Patak (1) and Bhawani Bakhsh v. Bam Das (2)
approved.

In a suit by the sons of a Hindu for a declaration that certain joint ancestral
property was not liable to sale in execution of a decree upon a hypothecation
bond of such property executed by their father in which the property was
described as " haq haquq aamindari apna," and that the bond and decree were
limited to the father's own interest, held by the Full Bench that, if the plain-
tiffs could not show that the interest which was hypothecated was a limited
interest, the Court must take it, as against the plaintiffs, that the family
property was hypothecated.

CF., 16 C.P.L R. 169;Appr., 14 A. 190 ; R., 1 O.C. 53 ; D., 28 A. 508 = 3 A.L.J.
274 = A.W.N. 1906, H7 ; 4 Bom. L.R. 587 (600).]

THIS was a suit for a declaration that certain immoveable property
should be released from attachment and exempted from sale in execution
of a decree obtained by five of the defendants against the first defendant,
who was the father of the plaintiffs (the family being a joint Hindu family),
on the allegations that the property was the joint ancestral estate of the
judgment-debtor and the plaintiffs ; that the decree was passed upon a
hypothecation bond which did not charge the whole joint ancestral estate
but only the mortgagor's interest therein ; and that only the judgment-
debtor's one-third share was liable to attachment and sale in execution of
the decree.

[180] The property in suit consisted of zemindari shares in four
villages, Eampura Eoayetpur, Rupura, Nahna, and Nagain Datnagar. It
was hypothecated by the first defendant Baldeo Singh in favour of the
ancestors of the defendants 2 to 6 by a bond dated the 24th December,
1875. The bond was as follows :

" I hypothecate my rights and interests in the zamindari (haq haquq
zamindari apna) in the villages of Supura, Rampura Enayetpura, Nahna,
Dehat pargana tabsil Karaur, and also Nikasdatnagar, tahsil Aonla, (haq
haquq zamindari Anola) Bareilly, in satisfaction of the creditors for the
recovery of the said amount. I hereby promise that till the payment of
the entire amount I shall not alienate, sell, mortgage or make a gift of the
property hypothecated in the bond, if I do so it shall be null and void."

Upon this bond the obligees brought a suit against Baldeo Singh,
and on the 23rd February, 1866, they obtained a decree for enforcement of
hypothecation, and in this execution of this decree the property mentioned
in the bond was attached. Hence this suit. The defendants pleaded
that inasmuch as the debt contracted by Baldeo Singh and secured by the
bond was not of an immoral character, but was incurred for family pur-
poses, the plaintiffs were bound by it, and that the hypothecation and the
decree thereon were sufficiently wide to cover not merely Baldeo Singh's
interest but that of the whole family in the ancestral estate.

The Court of first instance (Munsif of Bareilly) and the lower appel-
late Court (Subordinate Judge of Bareilly) decreed the suit, holding on
the construction of the bond of the24tb December 1875, that the hypothe-
cation was limited to the interest in the ancestral estate of the mortgagor
Baldeo Singh. The defendants appeal to the High Court.



1892

MARCH 19.

FuLi
BENCH.

14 A. 179=?

(F.B,) =

12 A.W.N.

(1892) 49.



il) 12 A. 99.



(2) 13 A. 216.



485



14 All. 181



[Yol.



1892 Munshi Ram Prasad, for the appellants.

MARCH 10, Babu Bishan Chandra Moitro for the respondent.

EDGE, G. J. The plaintiff in this suit sought a decree declaring

FULL that the property in suit should be exempted from sale in execution under

BENCH, a decree obtained by the defendants two bo six against [181] the defendant)

No. 1, who was the plaintiffs father. The seventh defendant is a brother

1* A. 179= of the plaintiff and a pro forma defendant. The decree was obtained on a
ff.B.)=> hypothecation bond executed by the defendant No. 1, Baldeo Singh, the

12 A.W.H. father of the plaintiff;

(1892) 59. The first Court on the construction of the bond held that Baldeo

Singh had hypothecated his own particular share only in the family
property. The second Court in appeal construed the bond as the first
Court had done. The defendants two to six have brought this appeal. The
defendant Baldeo Singh had described the property which he was hypothe-
cating, so far as this appeal is concerned, in the following words "main
ne hag haquq zamindari apna, dc, t " giving the names of the villages and
the pargana in which the property was situated. It appears to me that
that description was capable of covering the whole property referred to in
the deed in which Baldeo Singh had an undivided interest, that is, the
whole of that family property. It is possible that the intention of the
parties was that his own particular interest as distinguished from the
interest of the joint family only was intended to be hypothecated.

Now, taking the view which I do of the wording of the deed, I
think the law to be applied is to be found concisely stated in the
judgment of my brother Straight, which was concurred in by my brother
Mahmood, in the case of Beni Madho v. Basdeo Patak (1). It is to be
found in the following portion of the judgment at the foot of page 104 :
" These rulings seem to me to have gone somewhat further than the former
ones, and the outcome of the whole of this body of decisions appears to
be this, that where a Hindu son is coming into Court to assail either a
mortgage made by his father or a decree passed against his father or a
sale held or threatened in execution of such decree whether it be upon a
mortgage security or in respect of a simple money debt where there is
nothing to show any limitation of the extent of interest sold or threatened
with sale or charged in a security or dealt with by a decree, it
rests upon him, if be seeks to escape from having his [182] interest
affected by the sale, to establish that the debt he desires to be exempted
from paying was of such a character that be, as the son of a Hindu,
would not be under a pious obligation to discharge it, or that his
interests in the property were not covered by the mortgage or touched by
the decree or affected by the sale certificate." That proposition was
approved of by our brother Straight and our brother Tyrrell in Bhawani
Bakksh v. Bam Dai (2). The judgments in those two cases referred ta
all the material cases which I am aware of relating to the point in question.
Taking this view of the case I think we should set aside the decree of the
lower appellate Court and remand this case under s. 562 of the Code of
Civil Procedure for trial upon the merits.

Now one point which it appears to me the lower appellate Court will
have to try, if there is material on the record for the purpose or if the
evidence is tendered, is what was the real intention of the parties to
the hypothecation bond ? If the plaintiff is not in a position to show that
the interest which was hypothecated under the hypothecation band was-



(1 19 A. 99.



(2) 13 A. 216.



YII] PEM SINGH V. PARTAB SINGH 14 All. 18

a limited interest, then the Court below must take it as against the 1892
plaintiff, that the family property was hypothecated. There may be MARCH 10.
several other issues to be tried in this case which must be tried when the
case is tried on the merits. I would accordingly remand this case under FULL
s. 562 and order that the costs here and hitherto should abide the result. BENCH.

STRAIGHT, J. I only wish to add a word to what has fallen from
the learned Chief Justice, in wh'ose remand order I entirely concur. The ** * *^ 9 =
learned Subordinate Judge has in the course of his judgment referred to ($.&
ruling of my brother Mahmood and myself in Raghubar Singh v. Lachmi 12 *- w - N -
Narain (1). If the learned Subordinate Judge had examined that judg- ( 1892 ) * 9 -
ment more closely, he would have seen that, in advertence to a ruling of
their Lordships of the Privy Council in Simbhunath Pande v. Golap
Singh (2), I was of opinion that the terms of the sale certificate,
which was the document of title of the auction-purchaser in that
[183] case, passed no more than the rights and interests of the father, and
applying the rule laid down,in the Privy Council ruling to which I referred,
I held that only the father's interest passed. The present case is a very
different one, as pointed out by the learned Chief Justice.

TYRRELL, J, I quite agree with the views expressed and the order
passed by the learned Chief Justice, and I think that his opinion is
fortified by the consideration that whereas the mortgagor in respect of part
of the mortgaged property situate in mauzas Baupur and Eampura used
the words "haq haquq zamindari apna," he described another portion of
the property hypothecated situated in another pargana as " haq haquq
zamindari Aonla" without the qualifying word ''apna." Now there is no
suggestion that any difference exists or was intended to exist as to the .
extent of the rights and interest hypothecated in the two properties
respectively. Tbe bond should be read according to the ordinary rules of
interpretation in such a way as to make the description, so far as the word
"apna,' is concerned, consistent with the description of similar property
in the same document where it is not used. I concur in the order
proposed.

MAHMOOD, J. The rule of law which I would apply to this case is
exactly the principle upon which my brother Straight proceeded with my
concurrence in the case of Beni Madho v. Basdeo Patak (3) and where all
the principal ruling of their Lordships of the Privy Council upon this
somewhat complicated question were reviewed and considered and a deci-
sion arrived at in which I delivered no judgment other than saying that
I was entirely of the same opinion. The other case is Bhawo.ni Baksh v.
Bam Dai (4) in which my brothers Straight acd Tyrrell, whilst discussing
a cognate case, expressed views which are wholly consistent with the case
to which I have referred before.

Here the difficulty arises, not over my having any doubt as to
the soundness of those rulings nor any difficulty over a question of
law, but a difficulty over a question of interpreting a document. [184]
Fortunately this document happens to be in a language which is my
own, and I may, therefore, say with some confidence that the interpreta-
tion placed upon this?document of the 24th December 1875 by the learned
Chief Justice is exactly as I understand the document ; acd I amusing
the language for which I am indebted to my brother Tyrrell when I say
that even if we allow the fullest import to the single word " zamindari "

(1) 7 A.W.N. (1887) 291. (2) 14 C. 572. (3) 12 A. 99.

(4) 13 A. 216.

487



All. 183



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

MARCH 10,

FuiL
BENCH.

14 A. 179 =

(F.B.).
12 A.W.N,
(1892) 49,



in respect of some only of the villages, I would understand the word
to cover the whole property of the mortgagor, who would, and doubtless
did. hold himself to be the owner of all the zamindari of himself and his
infant children.

This interpretation is exactly what I understand the language of this
deed to mean because these words, " hag haquq zamindati apna " do not
by dint of the use of the word " apna " exclude other rights such as would
in ordinary Urdu idiom exclude those rights. A Hindu father holding
property belonging to his children does describe his zamindari to be his own.
He does nob call it the zamindari of himself, his children, wife or wives.
The order " apna " has no significance other than saying " my zamindari
rights." It certainly cannot mean the exclusion of such other rights aa
the father may hold under the system of joint Hindu family property.

An attempt was made to show by dint of a ruling of a Calcutta
Division Bench in Uporoop Tewary v. Lalla Bandhjee Suhay (1) that the
use of a word like this would mean that there was exclusion of the shares
of other members of the joint family when the father of the family,
let me call him paterfamilias, deals with the whole property of that
family. On account of this discussion it was by our order that the
original deed of the 24th August 1864, which was the subject of con-
sideration by the learned Judges of the Calcutta Division Bench in the
case to which I have referred, has been sent for, and it is now before me.
It is a document in Persian, and I think I should he taking up more time
than necessary if I had to show that the word "apna," which is the Urdu
[185] word as it occurs in this deed, is not to be understood in the sence
in which that document uses the word " khud," nor how far that docu-
ment was fully apprehended by the Calcutta Court.

All I think is this. This is a deed which conveyed all that the
excutant thereof intended to convey: that he as head of the family
intended that all that he called his own should be conveyed, and his
position is not that of an ordinary karta. In the cases to which my
brother Straight referred, in the two judgments to which I have alluded,
and in other cases also, the Privy Council has distinguished the position
of a father as the managing member of the family from that of an ordinary
managing member. Therefore in this case the executant being the father,
his position must not be confounded with that of any other manager of a
joint Hindu family. This being so, the two rulings to which I have
referred leave no doubt in my mind that unless it can be proved that the
mortgage for which the bond of the 24th December 1875, whereupon the
decree of the 23rd February 1886 was passed, was due to immorality of
the executant, namely, the father of the present plaintiff, I should be
inclined to hold that there is no case made out why that bond should be
set aside or why it should be held that only the share of the executant and
not of his children passed by that deed. I may also add that the decree



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 73 of 155)