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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 82 of 155)
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officer in open Court at the time of pro-[272]nounciog it. It

shall specify the offence (if any) of which, and the section of the 14 A. 242
Indian Penal Code or other law under which the accused is convicted 12 A.W.N.
and the punishment to which he is sentenced. When the con- (1892) 83.
viction is under the Indian Penal Code, and it is doubtful under which
of two sections, or under which of two parts of the same section of that
Code the offence falls, the Court shall distinctly express the same and pass
judgment in the alternative. If it be a judgment of acquittal, it shall
state the offence of which the accused is acquitted and direct that he
be set at liberty," &c.

There can be no pretence for suggesting that the judgment required
to be delivered and pronounced under sections 366 and 367, whether it be
a judgment of conviction or a judgment of acquittal, need not contain the
particulars required by sections 367, or need not be pronounced, that is,
read out in open Court, and need not be dated and signed by the presiding
officer at the time of pronouncing it.

Further, there can be no pretence for suggesting that Sessions Judges,
who are appointed and paid to administer the law in accordance with the
law, are not bound to obey the specific mandates of the Legislature, and
may act in violation of the provisions of the Code of Criminal Procedure,
1882. Inasmuch as the sentence in the case of a conviction, and the direc-
tion to set the accused at liberty in the case of an acquittal, can only
follow on the decision and cannot precede it and inasmuch as the decision
must be contained in the written judgment, and there only, it necessarily
follows that when, in cases like the present, to which section 367 applies
there is no written judgment when the sentence is passed, the sentence is
illegal.

The requirements of sections 366 and 367 are no mere matters of
form. The provisions of those sections are based upon good and substan-
tial grounds of public policy, and whether they are or not, Sessions Judges
must obey them and not be a law to themselves.

Any Judge at the conclusion of the evidence in a case, some of which
may be not quite distinct in his mind owing to the length of [273] the
trial, might pass sentence on a prisoner and find it impossible honestly
afterwards to put on paper good reasons for having convicted him, or, on
the other hand, might direct that the accused be set at liberty and find it
impossible afterwards honestly to put on paper good reasons for the
acquittal. The law wisely requires that the reasons for the decision shall
accompany the decision, and shall not be left to be subsequently inserted
or recorded. It is as much to the interest of the public that a guilty man
should not be acquitted as it is that an innocent man should not be
convicted.

We ought not to conclude this judgment without expressing our
opinion on two matters : one is that the sweeping condemnation by the
Sessions Judge of the Civil, Criminal and Revenue Courts of the Benares
district, in which the family of Amir Singh had been concerned in litiga-
tion, is entirely unjustified. The other is that, strange as it may appear
after what we have been compelled to say in this judgment, we are, from our



14 All. 274 INDIAN DECISIONS, NEW SERIES [Yol.

1892 knowledge of the Sessions Judge and his work, willing to believe that in
JUNE 7, adopting tha extraordinary procedure which he did, he was solely influenc-

ed by strong 'personal views as to zamiudars and their tenants, and an

APPEL- honest desire that men whom he believed to be guilty should not escape

LATE being convicted.

CRIMINAL. I Q conclusion, we should say that we are satisfied, from our experience

of the Sessions Judges of these Provinces and their work, that the proce-

14 A. 242- d ure o f the Sessions Judge in this case, upon which we have baen obliged

12A.W.N. to comment, is unique, and, speaking generally, that Sessions trials are

(1892) 83, conducted wifch regularity, fairness, and decorum, and in accordance

with law.



14 A. 273 (F.B.) = 12 A.W.N. (1892) 117.
FULL BENCH.

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



SETH CHITOR MAL (Defendant) v. SHIB LAL (Plaintiff).*
[29th June, 1892.]

Co -sharers Payment of arrears of Government-revenue by one co-sharer, effect of
Charge Lien Act XIX of 1873 (N.W.P. Land Revenue Act), ss. 146, 148, 150
166, 173 Act XII of 1881 (N.W.P. Rent Act), ss. 93, 171, et stq. Act IV of
1882 (Transfer of Property Act), a. 100,

A co-sharer in a mabal, who was also the lambardar, paid arrears of Govern-
ment revenue for the years 1882, 1383, and part of 1884, in respect of certain
lands [274] in the mahal which were the exclusive property of another co-sharer.
These lands were subject to simple mortgages executed in 1873, upon which
decrees were obtained in 1884, and had been sold in execution of these decrees
in 1837. The oo-sharer-lambardar, having obtained a decree in a Court of
Revenue against the mortgagors under s. 93 (g) of the N.W.P. Rent Act (XII of
1881) for recovery of the arrears of revenue paid by him, sought to execute that
decree under s. 177 of the Act by sale of the lands which had been sold in 1887 ;
and thereupon the auction-purchaser at that sale objected under s. 178. and, the
objection having been overruled, brought a suit as authorized by s. 181 in a
Civil Court to establish his title to the lands and to have them protected from
sale in execution of the Court Revenue decree, This suit was decreed, and
the decree, not having been appealed against, became final. Subsequently, the
co-sharer-lambardar brought a suit in the Civil Court) in which be claimed a
decree for enforcement of lien by sale of the lands for the amount of the Court
of Revenue decree, and for a declaration that the said lien " which is on account
of Government," be declared preferential to the mortgages of 1873, the decrees
thereon of 1884, and the sales under those decrees of 1887. He claimed this
lien not only in respect of the arrears of Government revenue paid, but also in
respect of future interest.

Held by the Full Bench (Mahmood, J,, dissenting) :

(i) That the Legislature had not given or recognized in the North- Western
Provinces any such right of charge or lien in favour of a person paying Govern-
ment revenue as was claimed here, or provided any means by which such a
charge could be enforced, and that any such charge would ba at variance with
the policy and intention of the Government as disclosed in its legislative
enactments.

(ii) That no Civil Court had jurisdiction to entertain the suit, and no Court
of Revenue had juriRdiolion to make a decree for sale of the immoveable property
or a decree in execution of which the immoveable property could be sold to the
prejudice of inoumbranoes to which it was subject.

* Second Appeals Nos. aiO and 211 of 1890.
544



VII] SETH CHITOR MAL v. SHIB LAL 14 All. 276

(iii) That it was not the intention of the Legislature that a Civil Court should 1892
have jurisdiction to invest, by declaration or otherwise, a decree of a Court of
Revenue with the attributes of a decree for sale such as oould be passed by a
Civil Court in a suit for sale under the Transfer of Property Act. 1882.

(iv) That there is no general principle of equity to the effect that whoever,
having an interest iu an estate, makes a payment in order to save the estate, BENCH.

obtains a charge on the estate, and, therefore, in the absence of a statutory

enactment, a co-sharer who paid the whole revenue and thus saved the estate, 14 A. 273
dees not, by reason of such payment, acquire a charge on the share of his /p gv _
defaulting co-sharer. Rimi Bam Das v. Mozaffer Hosain Shaha (1) approved, ^o'g'wf M

(v) That the principle of Maritime Civil Salvage had no application to the itaavi 4*1
case, and that no analogy oould exist between the case of a salvor in Maiitime ' ia8 ^' *'
Civil Salvage and the o-i-e of a co-sharer in a mahal to whom s. 146 or s. 148 of
the North- Western Provinces Land Revenue [2751 Act (XIX of 1873) applied.
Leslie v. Frtnch (2) and Falcke v. Scottish Imperial Insurance Company (3)
referred to.

[Diss., 26 M. 686 ; F.. 26 B. 437 ; R., 18 A. 471 ; 16 A.W.N. 154 ; 7 C.P.L.R. 42 ; 11
C.P.L.R. Ill ; 6 O.C. 3i6 (350) ; D., 26 A. 407 = A.W.N. (1904) ; 74 (F.B,).]

THIS was a reference made to the Full Bench by Edge, C. J., and
Blair, J. The faots of the case are fully stated in the judgment of
Edge, G.J.

The Hon. Mr. Spankie and Babu Durga Char an Banerji, for the
appellant.

Babu Jogindro Nath Chaudhri, for the respondent.

JUDGMENTS.

EDGE, G.J. These two second appeals arise out of the same suit,
and are brought by Seth Chi tor Mai, a defendant in the suit. The respond-
ent in each appeal is Sbib Lai, who was the plaintiff in the suit. The
suib was brought in the Court of the Haveli Munsif of Aligarh. From the
decree of the Munsif there were two appeals to the Court below, and in
each appeal a decree was passed. Seth Chitor Mai was dissatisfied with
each of the decrees of the Subordinate Judge, and accordingly has brought
these appeals.

The facts necessary for understanding the questions which arise in
these appeals are shortly as follows :

At the time of the making of the mortgages, to which I shall presently
refer, Mukha, Lekha, Fatteh, Bhagwan, and Eadha were co-sharers in a
mahal in which they owned plots numbered in the khewat 49 and 50 as
their share.

Plot numbered 49 contained 54 bighas, 8 biswas, and plot numbered
50 contained 29 bighas, 5 biswas.

On the 24th of June 1873 Mukhal, Lekha, Fatteh, and Bhagwan execut-
ed a simple mortgage, as a simple mortgage is defined in section 58 of the
Transfer of Property Act, 3882, in favour of the Seth Chitor Mai, by which
they purported to mortgage 44 bighas, 10^ biswas of the 54 bighas,
8 biswas. On the 1st of July 1873, Mukha, Lekha, and Fatteh executed a
simple mortgage in favour of Seth Chitor Mai, by which they purported to
mortgage 28 bighas, 3 bisw&s in the mahal.

On the 28th of March 1884 Seth Chitor Mai, in a suit in which
he was the plaintiff, and Sri Bam, adopted son of Lekba, [276]
deceased, Mukha and Fatteh were defendants, obtained, apparently under
section 88 of the Transfer of Property Act, 1882, a decree on his simple
mortgage of the 1st of July 1873 for sale of 28 bighas, 3 biswas of land.
On the 31st of March 1884, Seth Chitor Mai, in a suit in which he was the

(1) 14 0, 809, (2) L.R. 23 Ch. D. 552. (3) L.R. 34 Ch, D. 234.

545
A VII-69



H All. 277 INDIAN DECISIONS, NEW SERIES [Yol-

1892 plaintiff, and Sri Bam, adopted son of Lekha, deceased, Mukba, Jewan

JUNE 29, and Kanhaiya, minor sons, and Musammat Hira, widow of Bhagwan,

deceased, and Fatteh were defendants, obtained, apparently under section 88

FULL of the Transfer of Property Act, 1882, a decree on his simple mortgage

BBNOH. of the 24th of June 1873 for sale of 44 bighas, 14 biswas of land. What

were the proceedings which took place under those decrees between the

Li A. 378 dates of those decrees and the dates of the auction sales held in execution

B.) of them do not appear on the record of this suit, except that 54 bighas,

12 A.W.N. g bi swas an <j 14. bighas, 12^ biswas were advertised for sale under those

(1892) 117. decre08 .

On the 23rd of February 1887, at an auction sale under those decrees
Seth Chitor Mai purchased 14 bighas, 12i biswas of land out of 29 bighas,
5 biswas. The sale certificate* is dated the 25th of April 1887, and that
sale was duly confirmed. On the 21st of October 1887, at a further auc-
tion sale under those decrees, Seth Chitor Mai purchased 54 bighas and
8 biswas of land. The sale certificate is dated the 24th of December 1887,
and that sale was duly confirmed.

Shib Lai, the plaintiff, respondent here, who was a lambardar and a
co-sharer in the mahal in which the lands in question were, having paid
certain arrears of land revenue for the years 1289, 1290, and part of
1291 Fasli, corresponding roughly with the years 1882, 1883, and part
of 1884 of the Christian era, brought a suit in a Court of Eevenue, under
clause (g) of section 93 of Act No. XII of 1881, against Mukha, Sri Ram,
Musammat Hira, widow, and Jiwan and Bhodar (sic) sons of Bhagwan,
deceased, Fatteh and Badha to recover Bs. 402-5-1, principal and interest,
and Bs. 23-12-0 costs, and obtained on the 7th of April 1885 a decree'-for
Bs. 426-1-1 . The Bs. 402-5-1 included the arrears of land revenue paid by
Shib Lai. [277] Seth Chitor Mai was not a defendant to that suit. Shib
Lai endeavoured to execute that decree under section 177 of Act No. XII
of 1881 by sale of the 54 bighas, 8 biswas and the 14 bighas, 12J biswas
which bad been purchased, as already mentioned, by Setb Chitor Mai.
Seth Chitor Mai, before the day fixed for the sale, appeared under section

178 of Act No. XII of 1881, claimed a right and interest under his
mortgage decrees and sale certificates in those lands, and objected to their
being sold in execution of Shib Lai's Court of Bevenue decree. On that
claim the Collector of the district finally made an order under sections

179 and 180 against Seth Chitor Mai. Thereupon, and within one year
from the date of that order, Seth Chitor Mai brought his suit as author-
ised by section 181 of Act No. XII of 1881 in a Civil Court of competent
jurisdiction against Shib Lai, Sri Bam, adopted son of Lakha, deceased
Mukha, and Jewan Lai and Kanhaiya, sons, and Musammat Hira,
widow, of Bhagwan, deceased, to establish his right to the 54 bighas,
8 biswas, and the 14 bighas, 12J biswas and to have them protected
from sale in execution of Shib Lai's Court of Bevenue decree, and on
the 4th of September 1888 obtained the decree which he asked for in
his suit, -namely, a decree establishing his title to the 54 bighas,
8 biswas and the 14 bighas, 12i biswas and protecting them from sale
in execution of Shib Lai's Court of Bevenue decree. That decree was
appealable, but no appeal was brought against it, and whether it was
justified by the facts or in law is now immaterial, as the decree long since
became final as between Seth Chitor Mai and Shib Lai.

On the 18th of January 1889, and after Sebh Chitor Mai's decree of
the 4th of September 1888 had become, by reason of the Indian Limitation
Act, 1877, non-appealable, Shib Lai brought the suit out of which these

546



YII] SETH CHITOB MAL V. SHIB LAL 14 All. 279

two appeals have arisen. The object of this suit is to get behind Sath 1892
Ohifcor mal's decree of the 4bh of September 1888, and to get from a Civil JUNE 29.
Court a decree for sale of the 54 bighas, 8 biswas and the 14 bighas, 12
biswas which would confer on a purchaser at an auction-sale held in exe- FULL
cution of it, priority of title over such title and interest as Seth Cbitor BENCH.
Mai has in the lands.

[278] The reliefs which Shib Lai claims in this suit are, as transla- 14 A. 273
ted, as follows : (P.B,).=

"(a) A decree be passed in plaintiff's favour for enforcement of the 12 A.W.N.
hypothecation lien on account of Es. 426-1-1 paid as Government revenue (1892 ) 117,
and recorded in the decree, together with costs and future interest, and
for the auction sale of the zetnindari property, in extent 54 bighas, assess-
ed at Es. 128-4-6 and 14 bigbas, 10 biswas, for which revenue has been
paid, and plaintiff's hypothecation lien, which is on account of Government,
be declared superior and preferential to the hypothecation lien in favour of
defendant, the second party, and the aforesaid property be sold by auction
without any regard to other demands, liabilities or liens.

"(&) The costs of this suit, together with future interest, be caused to
be paid.

"(c) Any other reliefs or directions which the Court may consider
necessary be likewise given to the plaintiff."

The defendant described in that prayer for relief as the "defendant,
second party" is Seth Chitor Mai and the decree in which it is stated
that the Es. 426-1-1 was recorded is Shib Lai's Court of Eevenue decree
of the 7th of April 1885.

It may be noticed fehair Shib Lai in relief (a] is claiming a lien or
charge more extensive than that which the Government had for the
arrears of land revenue, for he claims a lien not only in respect of the
arrears of land revenue which were actually paid, but also in respect of
future interest, whereas section 148 of Act No. XIX of 1873 enacts that
" no interest shall be demanded on any arrear of land revenue." He is
also seeking to have the charge, which he claims to be entitled to, enforc-
ed by the Civil Court, which is not the tribunal by the aid of which the
Government can enforce the charge which it has for arrears of land
revenue.

Having regard to the relief which Shib Lai claims, it is necessary
not only to consider whether by the payment of the arrears of land
revenue Shib Lai obtained the charge which the Government had, which
was a charge enforceable by sale and having a priority over all [279]
mortgages and incumbrances upon tha land, but whether Shib Lai has by
such payment obtained any other charge in enforcement of which be is
entitled to bring the lands to sale by the aid of the Civil Court in this
suit. It will also be necessary to consider whether a Civil Court had any
jurisdiction to entertain this suit.

In considering the questions arising in this case, it is necessary to
bear in mind that when the arrears of the land-revenue, in respect of the
payment of which Shib Lai claims a charge upon the lands in suit were
accruing, accrued, and were paid, Shib Lai had no interest of any kind in
those lands, and that his interest was in other lands in the mahal which
might in certain events have been sold as part of the Mahal by the
Collector of the District in satisfaction of the arrears of the land-revenue,
for which the entire mahal and the proprietors, as that word is used in
section 146 of Act No. XIX of 1873 (the North-Western Provinces
Land-Eevenue Act, 1873), as amended by Act No. VIII of 1879, were



All. 280



INDIAN DECISIONS, NEW SERIES



1892 jointly and severally responsible to the Government. Even if it were a
JUNE 29. true proposition that there ig a general principle of equity that whoever,
having an interest in an estate, makes a payment in order to save the
estate, thereby obtains a charge upon the estate, and if Shib Lai could be
BENCH, said to have had, when he paid the arrears of land revenue, an interest in
the lands in suit, in which in fact he had no interest whatsoever, it would
13 A. 273 be necessary to consider whether the Legislature intended that a co-
(F.B.)= sharer or a lambardarin amahal who paid an arrear of the land-revenue
12 A W.N. should, in respect and by force of such payment, obtain a charge upon
U892j 117, lands in the mahal the exclusive property of another co-sharer, and provi-
ded any means by which any such charge could be enforced.

It must not be assumed that the proprietors or co- sharers in this
mahal were co-sharers in each other's share. In truth the proposition
which Shib Lai contends for is, that there exists a principle of equity
applicable to land by which, apart from express contract or legislative
enactment,, one of several debtors jointly and severally liable as principals,
and not as co-sureties, for a debt charged on their separate lands who pays
that debt in order to prevent his own [280] particular lands, together
with the separate lands of his co-debtors being sold, obtains thereby, nob
merely a right of contribution enforceable in the ordinary way by means
of a decree for money, but a charge over such separate lands of his co-
debtors on which he can obtain a decree for sale of those separate lands of
his co-debtors and a decree for sale which would confer on a purchaser
at a sale in execution of it, priority of title over all previous mortgages
and incumbrances. That is a startling proposition when one comes to
consider it carefully. It is all the more startling as applied to this case
from the fact that the means by which Shib Lai could alone, if at all, en-
force the charge which he claims were not open to the Government for the
enforcement of the charge which it had, and that the means by which the
Government could have enforced its charge are inapplicable, to the enforce-
ment of a charge by Shib Lai.

In endeavouring to arrive at a conclusion as to whether Shib Lai
did by his payment of the arrear of land revenue obtain any 'such charge
as that which he claims, I propose to consider the Acts of the Indian
Legislature in order to see what light they throw upon this question, and
in doing so to see whether if Shib Lai has any such charge the Legislature
provided any means by which he could enforce it. If it appears that the
Legislature has not only not recognized the existence of any such princi-
ple as that contended for, as apart from legislative creation, but has pro-
vided no means by which such a charge as that claimed by Shib Lai could
in these Provinces be enforced, and has in other Provinces created by
legislative enactment rights of charge on behalf of certain classes of per-
sons paying under certain circumstances arrears of Government revenue,
I think it may be safely concluded that the Legislature did not intend
except in those cases for which it has expressly provided by enactment
that lambardar, co-sharer or other person having an interest in a mahal
or in any part of it, should, by payment of an arrear of land revenue ac-
quire any charge, much less a charge taking priority over all mortgages
and incumbrances on the land, and it may further be concluded that no
such right of charge exists in these Provinces.

[281} Before examining the legislative enactments which may throw
any light upon this case, I shall again briefly state what Shib Lai is
contending for. It is contended on behalf of Shib Lai that by reason of
his payment of the arrear of land-revenue which became due for the years

548



YII]



SETH CHITOR MAL V. SHIB LAL



All. 282



1289, 1290 and part of 1291 Fasli, he acquired either a charge on the
lands in suit;, or a right to have a charge declared and enforced by sale of
the lands in suit, and that such charga or right of charge took priority
over the mortgages of 1873, the decrees upon those mortgages in 1884, and
the sales under those decrees in 1887.

If such a charge or right of charge exists, it must arise in this case,
either by legislative enactment or by virtue of some principle of equity,
not inconsistent with the statute law in force in these Provinces.

So far aa Act No. XIX of 1873 (the Norhh-Western Provinces Land-
Kevenue Act, 1873) as amended by Act No. VIII of 1879, is concerned,
the only sections which appear to have any bearing on this subject are
the sections contained in Chapter V of that Act.

The inferences to be drawn from those sections are in my opinion
adverse to the contention of Shib Lil. I think it necessary to refer to a
few only of the sections contained in Chapter V.

Section 146 enacts that " in the case of every mahal, the entire mahal
and all the proprietors jointly and severally shall be responsible to Govern-
ment for the revenue for the time being assessed on the mahal. Expla-
nation. Proprietor in this chapter includes also a farmer and a mortgagee
in possession." Seth Chitor Mai at the time the arrears of land revenue
were paid by Shib Lai was not a proprietor in the mahal within the meaning
of section 146, nor was he then a person responsible to Government for the
revenue for the time being assessed on the mahal. Section 148 enacts
any sum not so paid becomes thereupon an arrear of revenue, and the
persons responsible for it become defaulters. No interest shall be demand-
ed on any arrear of land-renenue. If the settlement has been made with a
lambardar on behalf of the proprietary body both the lambardar and the
persons so responsible shall be deemed defaulters." [282] By section 150
certain processes are provided by which an arrear of land revenue may be
recovered by the Collector of the district on behalf of the Government.
Amongst other processes provided by that section, there are the following :
' (e) by transfer of such share or patti to a solvent co-sharer in the mahal,"
' (0) by sale of such patti, or of the whole mahal ; " and " (fi) by sale of
other immoveable property of the defaulter." Section 157, so far as is
material, enacts " when the arrear is due in respect of a share or patbi of
a mahal, the Collector of the district may, with the previous sanction of



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 82 of 155)