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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 85 of 155)
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case was whether the present plaintiff's Eevenue Court's decree of the
7th of April 1885, could be so executed by proceeding in the Eevenue Court
as to subject the rights purchased by the present defendant, Chhitar Mai,
to sale. The Court answered the question in the negative, following the
ruling of Oldfield and Tyrrell, JJ., in Lachman Singh v. Salig Ram (1) and
I wish to quote a passage from that judgment, as it not only deals with
the point now under consideration, but will be introductory to what I
am going to say upon the third and most important point in this case.
Oldfield. J., said :

" No doubb by paying arrears of revenue, which he was bound to do, the
defendant would obtain a charge on the estate against all persons interest-
ed therein for the sum paid, and this has been laid down by their Lordships
of the Privy Council in Nugender Chunder Ghose y. Sreemutty Kaminee
Dossee (2), but that case is also an [304] authority for the view I take in this
case, that a charge of this nature cannot be enforced under a decree which
is merely a personal decree against the judgment-debtors, against whom
it was passed by a Eevenue Court not competent to do more than pass a
personal decree. If the defendant wished to establish a charge against
the property in the hands of the plaintiffs, he should have established
the same by suit against them in a Court of competent jurisdiction."

What is sought to be enforced in this suit is the very remedy of
enforcement of lien which the revenue Court could not have granted ;
for, as I have already explained, it was a matter entertainable only by the
Civil Court. The suit therefore is not open to the objection of any pleas
in limine such as want of jurisdiction, or such pleas as may be founded
upon the provisions of ss. 13 and 43 of the Code of Civil Procedure.

(1) 8 A. 384. (3) 11 M.I.A, 258.


I proceed now to consider the third question in the case, as already 1892
enunciated by me in a somewhat concrete form with reference to the JUNE 29.
circumstances of this particular case ; but that question ia the same as ~
that which in a more concise and abstract form was referred to a Full FULL
Bench of the Calcutta High Court by Wilson and O'Kinealy, JJ., in Kinu BENCH,
Bam Das v. Mozaffer Hosain Shako, (1), in which they formulated the
question in the following words :

" Wbere one or two co-sharers in a revenue- paying estate pays the
whole revenue in order to save, and so does save, the estate, is he entitled * 2 A.W.H.
to a charge upon the share of his co-sharer to the extent of the latter's 1*892) 117.
share of tbe revenue as against a purchaser?"

In referring tbe question to the Full Bench, the learned Judges observ-
ed that " no such charge is given by any express statutory enactment,"
and to show the gravity of the question I may state hera in passing thajT
the Full Bench which had to consider the question consisted of five Judges
who were not unanimous in their answer, Mitter and Norris, JJ., answer-
ing the question in the affirmative, and Wilson, Prinsep and Tottenham, JJ.,
answering the question in the negative. Since the same difficulty has
arisen in this Court, it would scarcely be enough for me, sitting here
as a member [305] of the Full Bench, to conbent myself by saying that I
agree in the principles upon which the judgment of Mitter, J., concurred
in by Norris, J., proceeded in that case. I shall therefore deal with the
question, not of course as res integra, but at greater length than would
ba necessary if there was no conflict of decision.

It seems that in the argument before the Full Bench of the Calcutta
High Court in the case above cited, as also in the case before Cotton,
Bowen and Fry, L.JJ., in Falcke v. Scottish Imperial Insurance Com-
pany (2), the expression "salvage" or " salvage lien " was employed for
purposes of representing a charge such as the one claimed by the plaint-
iffs in this suit. In the Calcutta Full Bench case, as also in the English
case just mentioned, the use of the term was disapproved, since Wilson, J.,
in the Calcutta case, following Bowen, L.J., in the English case, held that
'" salvage " or " salvage lien " were limited to maritime law, and that such
a doctrine did not apply to any matters which did not arise out of the
perils of the sea. Into the discussion of this question it will presently be
my duty to enter ; but I may say here in passing that I agree in what
has been said by Dr. Eashbebary Ghose with reference to certain legisla-
tive enactments which proceed upon the doctrine of salvage other than
" maritime " salvage. Eeferring to these enactments the learned author
observes :

" These enactments rest upon a plain principle of equity, tbe charges
created by them being recognized in most systems of law under the name
of salvage liens, an expression not wholly useless nor absolutely mislead-,
ing, and conveying, notwithstanding the recent protest of an eminent
English Judge, a definite meaning, a recommendation not always possessed
by some of even the most familiar terms in tbe English law. (Law of ,
mortgage in India, 2nd edition, page 316.)

With these remarks, I have already said, I concur, and, if it is a
true proposition of our Indian law, as distinguished from the English or
other systems, that the doctrine of salvage is limited to the perils of the
sea, or what I may call the maritime salvage, then it must at once be
conceded, as was held by Wilson, J., and two other [306.1 of learned
Jadges in the Calcutta ffuti Beirab ease ^otiowing-bbe dictum at fiowen, L 3 .
(1) 11 0, 809, (3jLR.340h. D, 234,


1892 in the English case abvementioned, that the plaintiff must fail in

JUNE 29. this suit.

This renders it necessary for me to consider in the first place, what

FULL the exact notion of the doctrine of salvage is in the English law, and iu the

BENCH, next place to ascertain upon what principle it is based. Salvage is well

defined by a modern writer on the present laws of England in the follow-

14 A. 273 i D{ , wor a s ._

" Salvage is a compensation for maritime services rendered in saving
A.W.N. p r0 p er ty or rescuing it from impending peril on the sea, or when wrecked
192) 117. on tjh e coas t of the sea or on a public navigable river or lake, where inter-
state or foreign commerce is carried on. The amount of the compensation
rests in the sound discretion of the Court upon a full consideration ail the
facts of the case." (Commentaries on the present Laws of England by Brett,
Vol. II, p. 1068.)

This being so, I will before proceeding further, and at the risk of
prolixity, quote a passage from the judgment of Lord Justice Bowen in
Falcke v. Scottish Imperial Insurance Company (1) which deals with the
theory of salvage in the English law. The passage runs as follows :

" The general principle, is beyond all question, that work and labour
done, or money expended, by one man to preserve or benefit the property
of another do not, according to English law, create any lien upon the
property saved or benefited, nor even, if standing alone, create any
obligation to repay the expenditure. Liabilities are not to be enforced,
upon people behind their backs any more than you can confer a
benefit upon a man against his will. There is an exception to this pro-
position in the maritime law. I mentioned it because the word 'salvage '
has been used from time to time throughout the argument, and some
analogy is sought to be established between salvage and the right claimed
by the respondents. With regard to salvage, general average and contribu-
tion, the maritime law differs from the common law. That has been [307]
so from the time of the Roman law downwards. The maritime law, for
the purposes of public policy and for the advantage of trade, imposes in
these cases a liability upon the thing saved, a liability which is a special
consequence arising out of the character of mercantile enterprises, the
nature of sea perils and the fact thaf- the thing saved was saved under
great stress and exceptional circumstances. No similar doctrine applies to
things lost upon land, nor to anything except ships or goods in peril at sea."

That this is a correct enunciation of the English maritime law of
salvage I have no doubt. But, with all the profound respect which is due
to the dicta of Lord Justice Bowen, I may say that there is nothing by
way of distinction shown or explained by his Lordship why the same
principle should not apply to similar perils on the land, and perhaps of a
worse nature than any perils which arise in the sea. There is no juristic
reason explained in the judgment, and sitting here as Judge, bound neither
by the techinicalities of the English Common Law nor by technicalities of
the rules of Chancery in England, I am free to ask myself the question why
this doctrine of salvage lien is limited by the English Courts to perils
of the sea as distinguished from the perils of the land. As an Indian Judge
and a member of a Court which deals with disputes of parties living in a
land the vast majority of whose inhabitants have never seen the sea, and
are therefore not in a position to appreciate the dangers arising out of the
upheaval of the billows of the ocean, I find ib difficult to accept over

, . (1) L.K, 34 Ch. D. 234, vide p, 248.



All. 309

questions of maritime salvage liens that any such sanctity can ba
attached to the perils of the sea as to place them upon a separate juristic
footing from similar perils which arise on the land. As I understand
Lord Justice Bowen's dictum in the case which I have cited, the
man who saved a vessel from sinking would be entitled to a salvage lien
because this would be a peril of the sea, but a person who saved Pompeii
from destruction by the eruption of Mount Vesuvius at the risk of his
life and at the expenditure of his money would not ba entitled to such a
salvage lien, because fche eruption took place on land and not in the sea,
and it follows from that dictum that the dangers of the sea for purposes
[308] of the doctrine of salvage rest on a far higher footing than the
perils of fire or earthquakes which occur upon land.

That such is the doctrine of English law, I accept to be a true
proposition, for Lord Justice Bowen, in ending the passage which I have
already quoted, said, with reference to salvage as to the perils of the sea :
"No similar doctrine applies to things lost upon land, nor to anything
except ships or goods in perils at sea : " and if I felt myself bound by the
English law in administering justice in this case, I should have held as
easily as was held by Wilson, J., in the Full Bench case of the Calcutta
High Court, Kinu Earn Dass v. Muzaffar Bosain Shaha (l) that the
plaintiff's case in a suit of this character must fail.

But with all the respect which is due to the evolution of juristic
principles by the English Courts of Justice, and with all the respect
which is due to eminent Judges who have presided in those Courts, I
have not before me even one authority or one judgment cited which
would furnish me with any juristic reason for supposing that the perils
of the sea upon which the English doctrine of salvage is based are in all
conditions greater than the perils of the land. It is of course natural to
suppose that in sea-girt countries like England or other maritime countries
like the Ionian Islands the terrors of the sea with its storms and the billows
of the ocean may present a spectable to the inhabitants of the islands and
the maritime countries with a sensation of greater sanctity and effect
than much greater perils that sometimes arise on the land whether by the
act of Nature, by accident or by the effect of stringent legislative enact-
ments which must be obeyed.

I do not take the instructive passage of Lord Justice Bowen's judg-
ment in Falcke v. Scottish Imperial Insurance Company (2) in any sense
other than showing what the English law, as a matter of fact, is upon
the subject of salvage, and as such I adopt it,

But I respectfully think the English law upon the subject is an un-
reasonable law as far as it restricts the salutary doctrine of salvage purely to
maritime salvages. I have endeavoured to ascer- [309] tain the histori-
cal origin of this limited form by the doctrine of salvage. Sir Patrick
Colquhoun's Roman Civil Law (s. 977, Vol. II, p. 44) has the following :

" The Rhodians were a maritime nation in the height of prosperity
long before the Romans occupied themselves with such matters. The
Romans incorporated many of the Rhodian laws into their own Codes.
Harmenopulos tells us that most of these laws were very ancient, and
Strabo speaks of the Rhodians as possessing the empire of the sea. Should
a ship be stranded or cast away, every one must save as much of his pro-
perty as he can, as in case of a fire ; thus, as has been above remarked, it
is not to be inferred that he who throws things overboard for the purpose


JUNE 29.



14 A. 273

(F.B.) =
12 A.W.N.
(1892) 117.

(1) 14 0. 809.

(2) L.B. 34 Gh. D. 234, vidt p. 218.

14 All. 310




JUNE 29.


li A. 273

(1892) \17,

of lightening the vessel intends to abandon them after the fashion of a
derelict, but is to be likened to a man overladen with too heavy a burden,
who might put part of it down by the roadside and return afterwards
with others to fetch the remainder."

In the same section (977) the same learned author states :

" The law which regulated the question of lightening a ship under
pressure of necessity was the lex Bhodia de jactu, which requires a passing
notice in this place. It was provided in s. 8 of that law that goods thrown
overboard were not derelicts, but still belonged to the former owner, and
this was the adopted maritime law of Borne. Every one who by damage
to his own property on shipboard shall have saved that of another, can
demandan appropriate indemnification of salvage, for the recovery of which
an action can only be brought against the master of the vessel, who was
bound to procure for the loser salvage from those whose goods had been
preserved. The greater part of the provisions of this law relate to
similar contributions and indemnifications, under certain circumstances,
respecting goods thrown overboard and damage done to the vessel."

How this rule gradually affected the English law as to wrecks is
described in the next section (s. 978) of the same work, bub it is needless
to go into the details of that history. However, before [310] proceeding
any further, I wish to quote a passage from another learned author, Sir
Eobert Phillimore, who in bis celebrated work on International Law, Vol.
IV, s, DCCCXXVIII, has the following :

11 When the preservation of the ship has required the throwing
overboard or sacrifice of a portion of the goods, equity demands that a
general contribution be made by all towards a loss sustained by some for the
benefit of all, and this is called in England by the name of general average."
And then after stating that " the law on this subject was transplanted
from the Maritime Code of Ehodea into the Eoman Law," the learned
author goes on to say that, " the principle of this rule has been
adopted by all commercial nations, but with considerable variation in
practice as to the kind of losses which demand its application and as to the
nature of the interests compellable to contribute." Before making any
observations of my own, I wish to point out that Sir Eobert Phillimore
distinctly, in the passage which I have quoted, rests the English Law
doctrine of general average on equitable considerations, and it is therefore
necessary to ascertain the exact scope of the notion of general average
in English law. I again resort to Brett's Commentaries on the present
Laws of England (Vol. I, p. 271), where the author has the following :

" General average is a contribution by the owners of the ship, freight
and charge to compensate the owner of a particular part of the ship or
cargo, whose property was sacrificed for their common good, ex. gr., a
jettison of cargo. The whole adventure must have been in imminent
danger of being lost for a right to general average to exist, for the sacrifice
must have been for the general good."

Now, whatever distinction in matters of detail may exist between
maritime salvage and general average, as understood in maritime law, one
thing is certain, that, failing statutory provisions, they must rest upon
one common footing. The origin of these liens appears to be more ancient
than any statute law in England, for these notions are based, as the
authorities show, upon the customs of t?he inhabitants of Ehodes, an island
of Asiatic Turkey, near the [311]coast of Asia Minor, 36 miles long, with a
breadth of 18 miles at its widest part and consisting of an area of 420 square
miles, and situate in the Mediterranean Sea, so close to the islands of


Greece that it must have been affected by the Greek superstition as to 1892

Oceanus. " A powerful deity of the sea, who, according to Homer, was JUNE 29.

father of all the gods." The Romans, as the history of law shows, borrowed

these doctrines from the Bhodians, and from the Romans the doctrine

was borrowed by England along with other maritime countries with BENCH.

certain variations and limitations which Sir Robert Phillimore has

explained. lf A> ?7 &

The question then is, whether we in India are to hold that, because (I"'B.)=
England, with her sea-girt shores, has chosen to adopt the Rbodian 12
principle of salvage, limiting it to the perils of the sea, and excluding the
doctrine of salvage as resting upon a higher footing of equity than the
perils arising out of tha waves of the ocean, we are bound to adopt such a
limitation, which, I respectfully think, is based in its historical origin on
ancient maritime superstition.

My answer to the question must necessarily rest upon my ascertaining
first of all what my ducy as a Judge is under the law which I am called
upon to administer. I agree with what was said by Wilson, J., in Kinu
Ram Dos v.Hozaffer Hosain Shaha (1) that there is no ''expres statutory
enactment " providing a charge such as that claimed in this case. But,
whilst conceding this, I may also observe in passing that my endeavours
have beea futile in ascertaining whether the English law of maritime
salvage, restricted as that salvage is to the perils of the sea, had its origin
in any statute law in England. Nor have I been able to ascertain whe-
ther the common law doctrine of implied contracts, with all its requisite
fictions as to request, had its origin in any statute law.

Now, the provisions of s. 37 of the Civil Courts Act (XII of 1887),
reproducing as they do much earlier provisions of statute law, are clear in
laying down that, with the exception of certain branches of the Hindu
and the Muhammadan law, the.Courts are to follow legislative enactments,
and in cases not provided for by such enact- [312] ments, " the Courb
shall act according to justice, equity and good conscience." This
much was indeed conceded by Wilson, J., in the Full Bench casa
just mentioned ; but the learned Judge went on to say towards the
end of his judgment: "We are not, under these circumstances, in my
opinion, at liberty to treat the matter as if it were res integra, aad under
the name of equity and good conscience to adopt whatever rule we think
most likely to work well."

It is perfectly true that in dealing with questions not covered by express
legislative provisions the Judge must not forget that he is a Judge and
not a legislator. But it is equally true that a Judge sitting in one country
is not to administer the laws of another country. To the English system
of jurisprudence, common law and the principles of equity administered
in the Courts of Chancery in England, India owes a vast debt of gratitude
for the improvements in the administration of justice. How far the
principles of the English system have been imported into India
is apparent not only from our Statute book, but also from the vast
body of decided cases, which I may describe as judge-made law. Notions
of justice, equity and good conscience are necessarily incapable of exact
and exhaustive definition ; and in administering them the Judge has to
take exceptional care whether he is or is not importing foreign notions too
far, or giving too much preference to the notions of equity in one country
over the notions of another.

(l) 14 C. 809.

All. 313




JUKE 39.


11 A. 273


12 A.W.N .
(1892) 117.

I have already endeavoured to describe what in my opinion is the
origin and history of maritime salvage in England. I have also said that I
have been unable to find in the English oases cited any juristic exposition
of the reasons why maritime salvage should be the only kind of slavage
recognized by the courts. Lord Justice Bowen, in the passage which I
have already quoted from his judgment in Falcke v. Scottish Imperial In-
surance Company (1) states that the special supremacy of maritime
alavages over any other class of slavages that may exist (notwith-
standing their repudiation by the English law) rests upon public policy
for the advantage of trade and the nature of sea perils. That such
[313] a rule rests upon sound considerations of equity I have no doubt.
But why that equity should stop at the sea-shore, I frankly and respect-
fully confe-ts I am unable to conceive, for I cannot help feeling that)
doctrines of equity are no more governed by the peculiarities of the sea than
by the peculiarities of the land. A legislative enactment may indeed
modify the operation of equitable doctrines by restricting them either to
the sea or to the land, but, as I have already said, in British India no
such legislative interference has taken place, and so far as this part of the
country is concerned, the broad principles of equity, justice and good
conscience must prevail under statutory mandate, regardless of foreign
systems, though of course they may be referred to for purposes of

In this connection it becomes necessary to investigate whether the
doctrine of salvage itself (irrespective of any considerations as to lienl has
not a broader foundation in equity than the perils of the sea, or the
grounds restricted by the English maritime law of salvage. I will quote
from a jurist of as great eminence as Jeremy Bentham.

" A surgeon has bestowed his services upon a sick man who had lost
his senses and who was not in a condition to ask for assistance. A depo-
sitory, though not requested to \3o so, has employed his labour, or has
made pecuniary advances for the preservation of a deposit. A man has
exposed himself in a fire to save valuable property or to rescue persons
in danger. The effects of a passenger have been thrown overboard to
lighten the ship and to preserve the rest of the cargo. In all these cases,
and in a thousand others which might be cited, the laws ought to insure a
recompense equivalent to the value of the services. This title to indem-
nity is founded upon the best reasons. Grant it, and he by whom it is
furnished will still be a gainer ; refuse it, and you leave him who has done
the service in a condition of loss. It is a promise of indemnity made be-
forehand to every man who may have the power of rendering a burdensome
service, in order that a prudent regard to his own personal interest may not
come into opnosition with his benevolence." And then the author, whilst
laying down [314] this general juristic foundation of the rule of equity, goes
on to say : " Three precautions must be observed in arranging the interest
of the two parties. First to prevent a hypocritical generosity from convert-
ing itself into tyranny and exacting the price of a service which would not
have been accepted had it not been supposed disinterested. Secondly not
to authorise a mercenary zeal to snatch rewards for services which the
person obliged might have rendered to himself or have obtained elsewhere
at a less coat. Thirdly not to suffer a man to be overwhelmed by a crowd
of helpers who cannot be fully indemnified without counterbalancing by

(1) L.R. 34 Gh. D. 234, vide p. 248.


AII. sia

an equivalent loss the whole advantage of the service." (Bentham's

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 85 of 155)