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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 84 of 155)
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[Vol.



1892

JUNE 29.

FULL
BENCH.

14 A. 273
(F.B.) =

12 A.W.N.

(1892) 117.



from any order passed under section 179 or section 180 by the Collector
of the district ;

" (b) But the party against whom the same is passed may institute a
suit in the Civil Court to establish his right at any time within one year
from the date of the order ;

" (c) Provided that, if the order be for the sale of the property taken
in execution, and the property is moveable, the suit shall not bo for the
recovery of such property, but shall be for compensation from the judg-
ment-creditor by whom it was brought to sale."

[293] No order under section 179 or section 180 of Act No. XII of
1881 was made against Shib Lai, and the result appears to me to be that
no Court had jurisdiction to entertain this suit by him for a decree for
sale of the immoveable property or for a declaration that he had or was
entitled to a charge. Further, as any suit which Shib Lai could have
brought for the recovery of arrears of land-revenue paid by him must
necessarily, according to section 93 of Act No. XII of 1881 and section 11
of the Code of Civil Procedure, have been brought in a Court of Revenue
and not in a Civil Court, and as a Court of Revenue has no jurisdiction
to make a decree for sale of immoveable property, or a decree in execution
of which immoveable property could be sold, to the prejudice of the
incumbrances to which such property was subject, I fail to see how a Civil
Court could in a suit authorized by section 181 of Act No. XII of 1881
or in any other suit for arrear of land-revenue make a declaration that a
decree of a Court of Revenue operated as a decree for sale, or operated to
create a charge, or could decree a sale of the immoveable property, to the
prejudice of the incumbrances to which it was subject, or make any decree
which could have that effect.

. In a suit authorized by section 181 of Act No. XII of 1881 a Civil
Court could decree that the immoveable property was or was not subject
to the incumbrances or to the right or interest claimed by the objector
who preferred his claim under section 178 of Act No. XII of 1881, and
presumably could declare whether or not such right or interest was one
which would disentitle the judgment-creditor from bringing the immove-
able property to sale under section 177 of that Act.

It was contended that as questions of title to land are, as a rule, for
a Civil Court and not for a Court of Revenue, this suit was maintainable
in the Civil Court as it raised a question of title. That contention is
based on an incorrect reading of Act No. XII of 1881 and on the assump-
tion that in order to obtain the decision of a Civil Court on a question of
proprietary title to land, it is necessary in all cases that a suit should ba
brought in the Civil Court.

[294] By section 189 of Act No. XII of 1881 an appeal lies to the
Civil Court from the decision of a Collector or Assistant Collector of the
1st class in all suits mentioned in section 93, in which the proprietary
title to land has been determined between parties making conflicting claims
thereto. By section 183 of Act No. XII of 1881 an appeal lies to the
Collector from all decisions of an Assistant Collector of the second class
in suits mentioned in section 93. Under section 178, as we have seen,
a third party may appear before the Collector or Assistant Collector and
claim a right or interest to or in any of the property about to be sold in
execution of a decree of a Court of Revenue, and under section 181 the
party against whom an order of the Collector is passed under section 179
or section 180 may within one year from the date of the order institute
his suit in a Civil Court to establish his right.

556



YII]



SETH CHITOB MAL V. SHIB LAL



1* All. 296



Seth Chitor Mai, the defendant-appellant here, whose claim was dis-
allowed under section 179 of Act No. XII of 1881, brought in the Civil
Court within 12 mouths of the order made against him his suit to
establish his right, and obtained in that suit a decree which rightly or
wrongly established his title against Shib Lai, the respondent here. That
decree has become final, and I fail to see how it can be questioned in this
suit, or how if this suit were otherwise maintainable any decree in this
suit, which is between the same parties, could be passed which would
detract from or interfere with the decree obtained by Seth Chitor Mai in
his suit. Further, and apart altogether from any question arising under
section 13 of the Code of Civil Procedure, there appear to me to be two
grounds at least upon which this suit must fail. One of those grounds is
that Shib Lai, the plaintiff-respondent here, having obtained in a Court
of Revenue the only decree which that Court had jurisdiction to pass,
seeks by this suit to have it executed by sale of immoveable property as
if that immoveable property was not subject to theincumbrances of Seth
Chitor Mai ; in other words, Shib Lai is seeking a sale not authorized
by section 177 of Act No. XII of 1881, which enacts thai; the sale under
that section shall be made "without prejudice to the incurnbrances
(if any) to which such property may ba subject." The [295] other
ground to which I allude is that no order having been passed against Shib
Lai, under section 179 or section 180 of Act No. XII of 1881, by the
Collector of the District, Shib Lai has no right of suit under section 181,
and so far as I am aware is not given under auy other section or Act
the right of suit which he contends for here.

To sum up my views on this case, so far as legislation affects it
or shows what was or was not the intention of the Legislature. In
my opinion no Civil Court had jurisdiction to entertain this suit, and
no Court of Revenue had jurisdiction to make a decree for sale of the
immoveable property or a decree in execution of which the immoveable
property could ba sold to the prejudice of incumbranees to which it was
subject. No such right of charge as is claimed here has been given or
recognized in these Provinces by the Legislature, and any such charge
would be at variance with the policy and intention of the Government
as disclosed in its legislative enactments ; and ic was nob the intention
of the Legislature that a Civil Court should have jurisdiction to invest
by declaration or otherwise a decree of a Court of Ravenae with the
attributes of a decree for sale such as could be passed by a Civil Courfc
in a suit for sale under the Transfer of Property Act, 1882. Such on
this subject is my opinion of the effect and object of, and of the infer-
ences to be drawn from, legislation, so far as these Provinces are
concerned.

Holding the opinion which I have above expressed as to the effect of
the legislation so far as these Provinces are concerned, it is hardly neces-
sary for mo to consider the abstract question as to whether a lambardar
or co-sharer who, on behalf of a person who is a proprietor within the
meaning of section 116 of Act No. XIX of 1873, or on behalf of any other
person, pays his arrear of land-revenue can, except by reason of a contract!
with such proprietor or person, obtain or be entitled to, by subrogation
or otherwise, a charge on immoveable property for money paid by him
in satisfaction of land-revenue for the payment of which such property
was liable. It is clear to my mind that a lambardar could not except
by express legislation obtain the charge which the [296] Government
has for arrears of land-revenue, for no means has been provided

557



1892

JUNE 29.

FULL
BENCH.

14 A. 273

(P,B.)-
12 A.W.N.
(1892) 117.



All. 297



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

JUNE 29.

FULL
BENCH.

11 &. 273

(F.B.)-
12 A.W.N.
(1892) 117,



by which he or an assignee of such charge could enforce it. The
means by which the Government can, under section 150 and the
following sections of Act No. XIX of 1873, enforce its charge for arrears,
of land-revenue are entirely inapplicable in the case of a lambardar pro-
ceedings for the recovery of money paid by him in satisfaction of an arrear
of land -revenue. So far as I am aware, the Government has no means
of enforcing its charge for arrears of land-revenue as a charge upon the
land other than those given to it by section 150 and the following sections
of Act No. XIX of 1873.

A co-sharer to whom section 146 or section 148 of Act No. XIX of
1873 applies, who pays an arrear of land-revenue, his own share of the
land-revenue, calculated as between himself and his co- sharers having been
paid in due time, cannot in my opinion be treated as standing in the posi-
tion of a surety to the Crown who has paid to the Crown the debt of his
principal, for the land-revenue is payable out of the whole mahal and out
of each and every part of it, and every co-sharer is severally in his capacity
as a sharer or proprietor of a share or land in the Mahal, and not in tha
capacity of a surety for his co-sharer, liable for the whole of the land-
revenue assessed upon the Mahal and for every part of it. It may be
doubted whether section 69 or section 70 of the Indian Contract Act,
1872, applies to such a case, and it may be noticed that the illustration
to section 69 is an example of a payment made by a person who, so far
as appears from the illustration in that section, was not bound to make
it. However that may be, a right, but not such a right of suit as is
contended for in this case, is impliedly, if not expressly, given to a
lambardar by clause (<?) of section 93 of Act No. XII of 1881, against
any person who was responsible for the payment of the arrear of land-
revenue through the lambardar, and to a recorded co -sharer by clause (k)
of that section against a recorded co-sharer who defaults for arrears of
land-revenue paid on his account by the recorded co-sharer.

[297] It appears to me that a co-sharer or a lambardar who pays an
arrear of land revenue to prevent the arrest and detention under section
152 of Act No. XIX of 1873, of a defaulter, or to prevent a sale under
section 153 of a defaulter's moveable property, or to prevent an attach-
ment under section 154'of a defaulter's share in which the paying co-sharer
was not a co-sharer, could not, on any principle of equity or, except by
express contract, obtain a charge in respect of his payment, as his interest
could not be affected by any process which affected only [his co-sharer's
liberty or property, and consequently that the broad proposition that a
lambardar or other co-sharer in these Provinces who pays an arrear of
land-revenue primarily due by another co-sharer obtains a charge in
respect of such payment by reason alone of such payment cannot be
maintained in its integrity upon any considerations depending on Act
No. XIX of 1873.

I fail to understand upon what principle of justice, equity or good
conscience a lambardar or a co-sharer who, being liable as a debtor to
Government, pays an arrear of land-revenue should be in a better position
than would be a second mortgagee of the whole mahal who being in pos-
session paid such an arrear out of his own pocket, the income of the mahal
being insufficient for the purpose. Such a mortgagee, would by such a pay-
ment obtain no priority over the first mortgagee, and would only be entitled
under section 72 of the Transfer of Property Act, 1882, in the absence of
a contract to the contrary, to add the money so paid to the principal

558



YII]



SETH CHITOR MAL V. SHIB LAL



All. 299



money of his mortgage, at the rate of interest payable on the principal,
and where no such rate was fixed at the rate of 9 per cent, per annum.

A Full Bench of the Calcutta High Court in Kinu Ram Das v. Mozaffer
Hosain Shaha (1) consisting of Mitter, Prinsep, Wilson, Tottenham, and
Norris, JJ., held (Mitter and Norris, JJ., dissenting) that there is no
general principle of equity to the effect that whoever, having ao interest
in an estate, makes a payment in order to save the [298] estate obtains a
charge on the estate, and, therefore, in the absence of a statutory enact-
ment, a co-sharer who paid the whole revenue and thus saved the estate
does not, by reason of such payment, acquire a charge on the share of his
defaulting co-sharer. Although I have held and expressed a contrary view
as regards the right-s of lambardars and co-sharers in these provinces, I
am now, after mature consideration, of opinion that my view was un-
sound, and that the view expressed by the majority of the Calcutta High
Court is correct on general principles, and that there is no such general
principal of equity. I agree with the observations in that case (I. L. E.
14 Gale, at pages 827 and 828) of Wilson, J., on the dictum of their
Lordships of the Privy Council in Nugender Chunder Ghose v. Kaminee
Dossee.

Further, I may point out that there is no evidence on the record to
show that any sale for arrears of land revenue was imminent or threaten-
ed, or that any proclamation of sale had been issued under section
169 of Act No. XIX of 1873, or even that any sale of any immoveable
property was ever contemplated by the Collector, and that Shib Lai was
not as lambardar or co-sharer intersted in the land or share in suit', and
that if the mahal had baen in danger, imminent or otherwise, of being
sold under section 166 of Act No. XIX of 1873, he paid the arrear of
land-revenue, not to save the land and shares in suit from being sold,
but to save his own share as a co-sharer in the mahal from being sold as
the share of a defaulter and part of the mahal.

The doctrine, which apparently had its origin in the Courts in Ireland,
that a charge upon land may arise on the principle of Maritime Civil
Salvage has, I think, been satisfactorily exploded as a principle of equity
by the decisions of the English Courts in the cases of Leslie v. French (2)
and Falcke v. Scottish Imperial Insurance Co. (3).

In my opinion no analogy can exist between the case of a salvor in
Maritime Civil Salvage, and the case of a co- sharer in a mahal to
whom section 146 or section 148 of Act No. XIX of 1873 [299]
applies, for the first principle of Maritime Civil Salvage is that no
one can be a salvor entitled to salvage whose legal duty it was to do the
act by which the ship or cargo was saved. A salvor is defined by Lord
Sfcowell to be a person who, without any particular relation to the ship in
distress, proffers useful service, and gives it as a volunteer adventurer,
without any pre-existing covenant that connected him with the duty of
employing himself for the preservation of the vessel (per Lord Stowell,
The Neptune, Clark, 1 Hagg. Ad. 227, 236 ; Maclachlan's Merchant Ship-
ping, 2nd ed. p. 570). Using the word "duty" in a sense other than
that of legal duty, for the breach of which a Court could award damages,
Lord Stowell in The Waterloo, Bird, 2 Dods. Ad. 433, 437, said : " It is
the duty of all ships to give succour to others in distress, none but a free-
booter would withhold it : but that does not discharge from liability to
payment where assistance is substantially given." Although on principles



1892

JUNE 29,

FULL
BENCH.

li A. 273

(P.B.)-
12 A. W N.
(1892) 117,



(1) 11 C. 809.



(2) L.R. 23 Ch. D. 552,

559



(3) L.R. 31 Ch, D, 234,



14 All. 300 INDIAN DECISIONS, NEW SERIES [Yol.

1892 of public policy salvage is allowed in maritime cases, I have never beard

JUNE 29. it suggested that a man who as a volunteer stops a horse running away

with a cart, in which are goods of his and also goods of others liable to be

FULL damaged or destroyed, is entitled to a salvage lien ; and yet according to

BENCH, the argument on behalf of Shib Lai such a volunteer would be entitled to

a salvage lien on the horse, the cart and its contents.

Justice, equity, and good conscience are captivating forms ; but before
a Judge applies what may appear to him at first sight to be in accordance
12 A.W.N. w j n jugtice, equity and good conscience, he must be careful to see that his
(1892) 117. views are based on sound general principles, and are nob iu conflict with
the intentions of the Legislature or with sound principles reoognizad by
authority. In my opinion justice, equity, and good conscience do nob require
us in India to go so far a field as the Irish Courts, in order there to seek
for, and thence to import into India, novel principles of equity, based on
unsound analogy, and rejected as unsound by Judges of such authority as
Bowen and Fry, L.JJ., and not followed by such an authority as the late
Lord Justice Cotton in Falcke v. Scottish Imperial Insurance Go., and
which further are at variance with the Transfer of [300] Property Act,
1882, of the Indian Legislature, and with the policy of the Government as
disclosed in its Legislative enactments.

In addition to the authorities to which I have referred, many other
authorities were referred to in the course of the arguments ; but as they
do not show that the opinions expressed in them were arrived at after any
critical examination of the legislative enactments bearing on the questions,
and appear as a rule to have been based on a supposition that the novel
principle, which I have mentioned, was a sound principle of equity, I have
not thought it necessary to refer to them in my judgment.

On every view of this case I would allow these two appeals with
costs, and dismiss the suit with costs in all Courts.

TYRRELL, J. I fully concur in the judgment and decree of the
Chief Justice.

KNOX, J. I fully concur with the Chief Justice in the judgment
and order proposed.

BLAIR, J. I agree with the judgment and order proposed by the
Chief Justice.

MAHMOOD, J. I have had the advantage of perusing the judgment
which the learned Chief Justice has prepared in this case, and the facts
of the case are so lucidly stated therein that I have struck out of this Judg-
ment what I had written on that part of the cases; and, indeed, I should
have omitted the rest of this judgment also, had it not been that I find
myself unfortunately unable to agree in the conclusions at which he has
arrived on the questions of law which arise in this easa.

This being so, it it necessary to appreciate exactly the points upon
which most stress was laid in the argument before the Full Bench.

Now I understand that the argument of the parties raises the follow-
ing questions for determination:

(1) Whether, with reference to the decree obtained by the plaintiff
from the Kevenue Court on the 7th of April 1885, the present suit is
barred by s. 43 of the Code of Civil Procedure?

[301] (2) Whether the decree obtained by the defendant Chitor
Mai against the plaintiff from the Civil Court on the 4bh September 1888,
bars the present suit under s. 13 of the Code of Civil Procedure ?

(I) L,B. 34 Ob. D. 234,

660



SETH CHITOR MAL V. SHIB LAL



(3) Whether the payment of Government; revenue by the plaintiff,
lambardar, on behalf of his defaulting co-sharers, such as those whose
rights the defendant Chhitar Mai has purchased, gives the plaintiff a charge
by way of salvage or otherwise on the defaulting shares so as to enable
him to enforce it against the purchaser in execution of hypothecation
decrees enforcing prior mortgages such as the defendant Chhitar Mai in
this case ?

Upon the first of these points I agree with the lower appellate Court
in the view that the principle of the ruling of Stuart, C.J., and Straight, J.,
in Banda Hasan v. Abadi Begam (1) justifies the conclusion that the
present suit was not barred by s. 43 of the Code of Civil Procedure. The
plaintiff's suit in the Eevenue Court, which ended in the decree of the 7th
of April 1985, was a suit of the nature contemplated by clause (g) of
s. 93 of the Kent Act (XII of 1881), and ib could not have included any
such relief as is prayed for in this suit. In the first place, the Eevenue
Courts have no jurisdiction to enforce any such charges as the plaintiff
claims in this suit, and in the second place, suits of that nature do not
contemplate intervention of third parties that is to say, persons in the
position of the present defendant-appellant, Ohbitar Mai, who at the timo
was only a simple mortgage, without possession and was not a co-sharer,
as his purchase was not made till 1887. I may here observe in passing
that the joint liability of the co-sharers of a mahal for payment of Govern-
ment revenue arises from the provisions of s. 146 of the Land Eevenue
Act (XIX of 1873), which originally did not impose any such liability
upon any class of mortgagees, and even in the amendment of that
section by s. 12 of Act VIII of 1879 the Legislature has limited the
extension of such liability, by the explanation, to farmers and mortgagees in
possession. It is, therefore, clear that to the revenue suit, which ended in the
[302] decree of 7th' of April 1885, the present defendant-appellant,
Chhitar Mai, could not have been made a party-defendant, and it follows
that the relief of enforcing a charge against him such as that claimed in
this suit could not have formed part of the relief prayed for in that suit.
The rule contained ins. 43 of the Code of Civil Procedure has therefore
no application to the present ease. And if it were necessary to pursue
the subject further. I would explain in detail the principle of the Fall
Bench ruling of the Calcutta High Court in Syed Eman Momtaz-ood-deen
Mahomood v. Rajcoomar Dass (2), which was apparently misunderstood in
Doss Money Dossee v. Jonmenjoy Mullick (3), but again explained in a later
Full Bench ruling by Garth, C.J., in Jonmenjoy Mullick v. DossMoney Dossee
(4). These cases related to the effect of a summary decree obtained under
the special provisions of s. 53 of the Eegistration Act (XX of 1866), which
allowed by its procedure only simple money decrees upon registered mort-
gage bonds, and it was held that such a summary decree would not debar
the mortgagee from seeking his further remedy by enforcing his lien where
the mortgaged property had passed into the hands of third parties, against
whom such lien was sought to be enforced. These rulings, indeed, go
beyond the exigencies of this case, for there the mortgagee's remedy
by the summary procedure of s. 53 of the Eegulation Act (XX of 1866)
was optional, and in the present case, by reason of the body of s. 93 of
the Bent Act (XII of 1881), read with clause (g} of that section, the
plaintiff, in his suit which ended in the decree of the 7th of April 1885,
had no choice but to go to the Eevenue Court with a plaint by which



1892

JUNE 29.

FULL
BENCH.

1* A. 273

112 A W.N.

(1892) 117.



(1) 4 A. 180.

A VII 71



(2) U B.L..K. 408. (3) 3 C. 363.

561



(4) 7 C, 714.



14 All. 303 INDIAN DECISIONS, NEW SEBIES [Vol.

1892 ne cbuld cot implead the defendant-appellant, Chhitar Mai, and by which

JUNE 29. ne could not seek to enforce the charge now claimed against the defendant.

The procedure of the Eevenue Courts under the Eent Act (XII of 1881),

FULL in suits of the character described in s. 93 of that enactment is of a

BENCH, summary character, excluding consideration of the claims of third parties,
and the jurisdiction thus conferred upon them is necessarily of a circum-

U 4. 278 Horibpd character. But because the jurisdiction of such Courts is circum-
(P B.)=> [303]soribed, ifc does not follow that the jurisdiction of the Civil Courts

12A.W.N. under s. 11 of the Code of Civil Procedure is totally ousted. It is, of
<18&2) 117. course, ousted to the extent of the express provisions of the enactment^
but I hold that a suit like the present, where the relief prayed for could
not have been entertained by the Revenue Court, there can be no ouster
of jurisdiction, and since the case is thus entertainable for adjudication
upon reliefs which could not have formed part of the revenue suit which
ended in the decree of 7th of April 1885, there can ba no plea based upon
s. 43 of the Code of Civil Procedure which would bar this action.

Upon the second point also I agree with the Courts below in holding
that the suit is not barred by the rule of res judicata as enunciated in
s. 13 of the Code of Civil Procedure. The plea was based upon the Civil
Court's decree obtained by the defendant, Chhitar Mai, against the
plaintiff on the 4th of September 1888, but that decree has not been
produced in evidence in this suit, nor has the defendant filed copies of the
pleadings of the parties in that suit. He has, however, produced
an attested copy of the judgment which ended in that decree, and
it shows that the main point for consideration before the Court in that



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 84 of 155)