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The second observation, which I make with equal respect, relates to
the use of the expression " the express creation of the narrower right"
employed by Wilson, J., in the passage which I have quoted. It amounts,
I respectfully think, to begging the question, because, according to my
humble opinion, the declaration of any right by statute does not
abrogate any other existing right by mere implication, and to say that
such a right did not exist in equity before the passing of any particular
enactment, is to assume the foundation of a contested argument. And I
may say that in that very case Mifcter, J., with the concurrence of Norris, J,
has shown why such an assumption is unassumable.

I have already stated how upon this point the Full Bench of the Cal-
cutta High Gourb was divided. I have repeatedly perused the judgment
of Mitter, J., on the one hand, and the judgment of Wilson, J., on the
other as expositions of two opposite views. The judgments exhaustively
deal with the case law upon the subject, and it would be a work of supere-
rogation to refer to the numerous cases which were discussed by those
learned Judges, and I "will therefore refer only to more prominent ones
among them. Most important of all is the dictum of the Lords of the
Privy Council in Nugendar Chunder Ghose v. Sreemutty Kaminee Dossee{2),
in which Lord Eomilly, in delivering the judgment of the Privy Council,
made the following observations :

" Considering that the payment of the revenue by the mortgagee will
prevent the Talook from being sold, their Lordships would, if that were
the sole question for their consideration, find it difficult to come to
any other conclusion than that the person [326] who had such an
interest in the Talook as entitled him to pay -the revenue due to the



1892

JUNE 29,

FULL
BENCH.

14 A. 273

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



(1) L.B. 34 Cb. D. 234, vide p. 249.



(2) 11 M, I. A, 241.



575



All. 327



CVol.



1892 Government and did actually pay it, was thereby entitled to a charge on
JUNE 39. ^ De Talook as against all persons interested therein for the amount of

money as paid."

FULL This dictum of their Lordships of the Privy Council was interpreted

BENCH. m Syed Enayat Eossein v. Muddan Moonee Shahoon (1), by Markby and
Mitter, J-T.. to be comprehensive enough to lay down a broad principle of

II A. 273 salvage lien in favour of co-sharers of zemindari estates, who by payment of
(P.B.)=- Government revenue on behalf of their defaulting co-sharers saved the

12 A.W.H. whole mahai from revenue sale. This interpretation, and the principles

(1892) 117. which it lays down, was followed in the Calcutta High Court by other
Judges, McDonell, Field, Maclean, Jackson, Tottenham and White, JJ.,
in the various cases referred to by Mitter, J., in bis judgment. In this
Court the same interpretation was adopted by Oldfield, J., with the concur-
rence of my brother Tyrrell in Luchman Singh v. Salig Ram (2), and by
me in Bhup Singh v. Gulab Rai (3) which has not been published in the
official Law Reports. The interpretation and principle was however
doubted by Pontifex, J., in an obiter dictum which he delivered in Kristo
Mohinee Dossee v. Kaliprosono Ghose (4), with the concurrence of
Garth, C.J. Thus the question of the interpretation of Lord Bomilly's
dictum and the principle which it lays down became the subject of
serious consideration in the Calcutta Full Bench case, and with all
due respect to the judgment of Wilson, J., in that case, I may say that I
adopt the views of Mitter, J., as to the scope and interpretation of
the dictum for the reasons which he has fully explained in his judgment,
among them being the significant circumstance that whilst in the course
of the argument before the Full Bench in the Calcutta case it was assert-
ed that Lord Komilly, then Master of the Eolls, " in deciding cases in his
own Court has disapproved of the doctrine which it is contended has been
laid down by the dictum in question," no case was cited to justify such
an assertion. Further, the views of Mitter, J., as exoressed in the Full
Bench ease are in full accord with the views hitherto [327] entertained as
to that dictum by this Court in the cases to which I have already referred,
and nothing in the argument addressed to us in this case enables me to
adopt a different view.

I will now pass on to the consideration of the question how far the
other Courts have accepted the principle upon which the judgment of
Mitter, J., with the concurrence of Norris, J., proceeded in the Calcutta
Full Bench case. So far as the late Sadr Diwani Adalat of Calcutta is
concerned, I think it is enough to say that I have perused the cases cited
by Wilson, J., and Mitter, J., in their judgments, and I respectfully think
that they are not helpful either one way or the other as authorities upon
the equitable doctrine of [salvage lien now in question, which does not
appear to have been urged or argued in those comparatively ancient cases.
Similar remarks apply to the rulings of the lata Sadr Court of these
Provinces.

Coming then to more modern times, it is important to ascertain, how
the case-law now stands in the four High Courts established by Royal
Charter in British India. The state of the case-law in the Calcutta Court
is best represented by the Full Bench case of Kinu Ram Das v. Mozaffer
Hosain Shaha (5), to which suoh frequent reference has already been made,
with the result thai in a Bench of five Judges the opinions were so divided



tl)-M B.L R. 155.

(3) 6 A.W.N. (1886), 269, vidt p. 273.



(2) 8 A. 334, vide p. 356.

(4) 8 0, 402, vide p, 119. (5) 14 G. 809.



576



YII]



SETH CHITOR MAL V. SHIB LAL



14 All. 329



that the majority is represented by what I may respectfully call the cast-
ing vote of Tottenham, J., who explained that be had altered his opinion
adopted in earlier cases. In Bombay, Sargent, G.J., and Birdwood, J., in
Achut Bam Chandra Pai v. Hari Ramti (1), having before them some of the
Calcutta oases, dissenting from the principle upon which the doubts of
Pontifex, J., and the judgment of Wilson, J. (in the Calcutta Full Bench
case) proceed, went on to say :

" This distinction, however, does not appear to us to affect the
principle enunciated in Nugender Chunderv. Sreemutty (2), viz., that such
payments are in the nature of salvage payments and which is also the
ground on which the decisions in the Irish cases and in [328] Shaikldrus
v. Vtthal Bakhmaji (3) proceed. The payment of the assessment by the
part owner is by a person entitled to pay it, and who does so, ex hypothesi,
under circumstances which make it necessary in order to save the estate
for himself and co-owners, and, in either view of such payment, he
becomes equitably entitled to a charge on the whole estate as against the
other co-sharers, and if this is so the mere circumstance that he has no
existing charge on their shares at the time would appear to be no sufficient
reason, in equity, justice and good conscience, for not allowing him to
realize the payment from the shares of his co-owners for their respective
quotas. The judgment of Fry, L.J., in Leslie v. French (4) doubtless
shows that the question as to the effect of analogous payments in England
in creating a charge on the other interests which share in the benefit of it
is still far from settled, although there are many cases which support the
above principle ; but, however that may be, we think that the Calcutta
decisions to which we have referred as recognizing a charge in those cases
in which the assessment is paid by a part owner to save the estate, are
in accordance with equity, justice and good conscience, and should be
followed in this country."

I have quoted this passage in extenso because the Bombay High
Court, so far as I am aware, has never departed from the principles which
it thus enunciated.

I will now consider how the Madras High Court has dealt with simi-
lar principles. In Sheshcgiri v. Pichu (5), Kernan, J., made observations
which I wish to quote, as they represent how the law stands in that Court
upon these matters of principle. The learned Judge said :

" The lands of defendant No. 4 and of the plaintiff are both liable to
a common burden, neither of them can get his land free from the claim
for revenue without paying the amount due on the whole lands : Secretary
of State for India v. Narayanan (6). It would be against equity and good
conscience that the common burden be [329] thrown exclusively on either
lot of land or on either of the parties. This subject was much discussed
by a Bench of five Judges in Calcutta : Kinu Bam Das v. Mozaffer Hosain
Shaha (7). In that case many authorities were considered, and by a major-
ity of three Judges to two it was decided that a plaintiff in the same
position as the plaintiff here was not entitled to a decree that the land of
the defendant was subject to a charge to recay the defendant's share of
the common liability for rent paid by plaintiff. I agree with the opinion
of the minority for the reasons expressed by Mr. Justice Mitter in his
judgment. "



1892

JUNE 29.

FULL
BENCH.

14 A. 273

(F.B.) =
12 A.W.H.
(1892) 117,



(1) 11 B , 313, vide p. 318.

(3) Printed Judgments for 1879, p. 407.

(5) 11 M. 452, vide p. 454. (6) 8 M. 130.



A VII 73



577



(2) 11 M.I. A. 241.

(4) L.'R. 23 Ch. D. 552.

(7) 14 0. 809.



14 All. 330



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

JUNE 29.

FULL
BENCH.

11 A. 273

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



The learned Judge then wonfc on to refer to some other oases, and
the dicta of Mr. Justice Story in his renowned work on Equity Jurispru-
dence. These I need not refer to in detail, but I may state that Muttusami
Ayyar, J., who was associated with Kernan, J., in that case, in expressing
his concurrence, expressly stated that he was inclined to agree with the
minority of the Eull Bench oi' the Calcutta High Court in Kinu Ham Das
v. Mazaffer Hosain (1). As againsb this view, however, a recent case of
the Madras High Court Thanikachella v. Shudachella (2) has been
referred to. That case, so far as the report shows, was heard by Mr,
Justice Parker, sitting as a single Judge, and I may say, with all due
respect and without any remarks as to the interpretation of the statutes
referred to in his judgment, that that judgment is so laconic that it has
not been instructive to me as to whether or not the learned Judga intended
to rule one way or the other as to the doctrines of equity which Kernan
and Muttusami Ayyar, JJ., dealt with in Sheshagiri v. Pichu (3).

I now come to the state of the case-law in this Court itself. In
Lachman Singh v. Salig Ram (4), Oldfield, J., with the concurrence of my
brother Tyrrell, said :

" No doubt by paying arrears of revenue, which he was bound to do,
the defendant would obtain a charge on the estate against all persons
interested therein for the sum paid, and this has been laid [330] down by
their Lordships of the Privy Council in Nugender Ghunder Ghose v.
Sreemutty Kaminee Dossee (5)." Eeferring to this case, I made certain
observations in Bhup Singh v. Gulab Rai (6), which I wish to quote here,
as they rest in principle upon the same doctrine of salvage lien as this
case, with this distinction of detail, that whilst in that case the party
claiming lien was in possession and defendant, in this case the party
seeking to enforce such lien is not in possession and is plaintiff in the suit.
This difference of detail does not alter the applicability of the doctrine, as
will appear from what I said in that case. After referring to the ruling of
Oldfield and Tyrrell, JJ , in Lachman Singh v. Salig Ram (7), I said :

Here the defendants have already purchased the property in
execution of a decree which was passed for money advanced by their
father on behalf of Dhan Kuar, in payment of the arrears of revenue due
by her in respect of this property ; and the question is not whether any
decree held by them can be so enforced as to enforce the charge, but
the point is, whether they, being in possession, can claim that any
sale which may take place in enforcement of the plaintiff's mortgage,
shall be subject to the extent of the money paid as Government revenue
on behalf of Dhan Kuar. I am of opinion that they are entitled to claim
that to the extent to which their purchase contributed to pay off the
revenue due on the estate which they have purchased, they hold a charge
which cannot be defeated by any sale which may taka place in enforce-
ment of the plaintiff's lien decreed on the 14th of August, 1882. This
view is consistent with the principle upon which the cases already refer-
red to by me proceed, and I respectfully think that the doubts which
Pontifex, J., expressed in the case of Kristo Mohinee Dossee (8), as to
there being no equity in such cases, are explainable by the doctrine upon
which Courts of equity allow lien in respect of advances in the nature of
salvage. No doubt the general rule is, that a person who spends money upon
the property of another, cannot by that fact itself acquire a lien upon such



(1) 14 C 809. (2) 15 M. 258.

(4) 8 A. 381. vide p. 386.

(6) 6 A.W.N. (1886) 269, vide p. 273.



(3) 11 M. 452 vide p 454,

(5) 11 M.I. A. 241.

(7) 8 A. 384. (8) 8 0. 402.



578



SETH CHITOR MAL V. SHIB LAL



14 All 332



property, unless, having some interest in that property, he, in order to
save that interest, [331] expends money which also benefits another. This
is illustrated by the case of a mortgagee who, in order to save his security,
pays off the Government revenue, a charge which, if not paid off.might result
in a sale which would defeat not only the mortgagee's interest, but also the
ownership of the mortgagor. To such a case the observations of the Lords
of the Privy Council, which I have already quoted, are directly applicable,
and whilst I am prepared to concede that those remarks are not directly
applicable to the point now under consideration, I hold that the ulti-
mate basis of the doctrine of equity upon which they proceed is identi-
cal in principle to the charge which a co-sharer in a zemindari mahal
acquires upon the share of bis co-sharer for such advances as he makes in
payment of Government revenue, which being the first charge upon such
estates, would, if unpaid, result in the sale of the whole estate. In the case
of a mortgagee paying revenue due by the mortgagor, the principle is that
the payment was made to save the mortgage, and also the rights of the
mortgagor. So also, in the case of a joint co-sharer in a zemindari estate
paying off the revenue due not only on his own share, but also on that of
his co- sharer, the object of payment is to save the whole estate. The
distinction between the two cases therefore amounts only to a difference in
detail, and, in my opinion, cannot alter the principle. The payment of
revenue by one co-sharer on behalf of himself and another co- sharer of a
mahal is in no sense an officious payment, because, but for such payment,
his own zimindari rights of ownership might be defeated by sale in arrears
of revenue. '

I still adhere to these views, and, following the ratio upon which they
proceed, I bold that the plaintiff is entitled to the lien which ha claims in
this suit, and that such lien being in the nature of a charge such as that
contemplated by s. 100 of the Transfer of Property Act, can be enforced
as a first charge according to the rules, mutatis mutandis, applicable to
simple mortgages. I also hold that inasmuch as the payment of Govern-
ment revenue by the plaintiff saved not only the proprietary interest of
defaulting co-sharers, but also such interest as the defendant-appellant,
[332] Chhitar Mai, possessed under his mortgages of 1873 in enforcement
whereof he purchased the property in suit, the plaintiff's charge is para-
mount to those mortgages and that purchase, and the defendant-appellant
cannot resist it, regardless of how much of the property purchased by
him was subject to those mortgages and purchased in the enforcement
thereof, and how much was free from those mortgages and purchased by
him under his decrees. Neither the mortgages nor the decrees under which
the sale and purchase by the defendant-appellant took place could override
the paramount salvage lien which the plaintiff possesses under the equitable
doctrine which I have endeavoured to explain. And to guard against being
misunderstood, I wish to say, in the first place, that I do not rest my deci-
sion upon the doctrine of subrogation, for the plaintiff could not by payment
of the Government revenue acquire the right of enforcing his lien in the
same manner as the Land Kevenue Act (XIX of 1873) entitles the revenue
authorities to do by executive processes which I have already described.
In the next place, I wish to point out, as I have already said, that in this
case we are not dealirg with the case of a mere volunteer who
officiously awakes payments, but. with a person who, impelled by tho re-
quirements of the law and the exigencies of his own interests in the joint
estate, had to make payments of Government revenue to save the whole
estate from being sold for arrears of Government revenue, a sale which

579



1892

JUNE 29.

FULL
BENCH.

II A. 278

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



14 All. 333 INDIAN DECISIONS, NEW SERIES [Yol.

1892 would defeat the present defendant-appellant's mortgages as much as the

JUNE 29. rights which his mortgagor?, the original proprietors whose rights the

defendant-appellant has purchased. In the third place, it must be

FULL observed that, so far as the defendant-appellant is concerned, we are not

BENCH, concerned with the case of a bona fide purchaser for value without notice,
but with a person who, as is apparent from the facts of the case as stated,

14 A. 278 purchased with ample notice of the plaintiff's charge upon the estate for

having paid arrears of antecedent Government revenue to save the estate

12 A. W.N. f rom revenue 8a i ei vvhicb would defeat the mortgages upon which he

(1892) 117. obtained decrees and in execution of which he purchased the property
which he now wishes to save from the plaintiff's charge.

[333] Limiting my rule, therefore, to these circumstances, and limit-
ing the rule which I have laid down to the exigencies of this case, I would
dismiss the appeal, and allowing the cross-objections raised by the plain-
tiff-respondent, set aside so much of the decrees of the lower Courts as
dismiss the suit, and, following the principle of s. 100 of the Transfer of
Property Act (IV of 1882), would frame a decree in terms of s. 88 of that
enactment, fixing a period of six months for payment of the money, and in
default of such payment awarding sale in enforcement of the plaintiff's
lien.



14 A. 333 = 12 A. W.N. (1892) 39.

APPELLATE CIVIL.
Before Mr. Justice Mahmood.



HAB NABAIN PANDE (Plaintiff} v. RAM PRASAD MISR AND ANOTHER

(Defendants)* [23rd November, 1891.]
Pre-emption Wajib ul-arz Gift Shankalp.

No right of pre-emption arises where land is assigned without consideration
as shankalp.

THE facts of this case sufficiently appear from the judgment of
Mahmood, J.

Munsbi Gobind Prasad, for the appellant.
Munshi Madho Prasad, for the respondents.

JUDGMENT.

MAHMOOD, J. This a is second appeal in regard to a dispute of which
the facts are sufficiently clearly sated in the judgment of the lower appellate
Court, which Court also framed the issues which arise in tha case.

Briefly put, the matter relates to a transaction of the 29oh of June,
1887, when the defendant-respondent, Harihar Pande, by an application
for mutation of names, applied for and obtained the entry of the name of
Earn Prasad Misr, in the Government revenue records in respect of the
property now in suit.

[334] Thereupon the present plaintiff-appellant, Har Narain Pande,
dissatisfied with the transaction abovementioned, came into Court suing
to enforce his right of pre-emption in respect to the transaction of the
29th of June, 1887. Now this transaction is described as shankalp, and
it has been found that it was a pure gift without any pecuniary considera-
tion for it, and that it was not a sale, and upon this ground both the Courts
below have concurred in dismissing the suit.

' Second Appeal No. 1408 of 1889, from a decree of Maulvi Muhammad Mazhar
Husair, Additional Subordinate Judge of Gorkhpur, dated the 14 th September 1889,
confirming a decree of Pandit Alopi Prasad, Munsif of Basti, dated the 24th April 1888

580



YII]



HAR NABAIN PANDE V. RAM PRASAD MISR 14 All. 335



From these two concurrent decrees, this second appeal has been pre-
ferred, and Mr. Gobind Prasad in his argument? has relied upon the
ruling of the majority of this Court in the Full Bench case of Janki v.
Girjadat (1), where the majority of the Court laid down a proposition of
law from which I had the misfortune to dissent. The learned vakil has
also relied upon two unreported rulings of this Court in F. A. No. 170 of
1886 and F. A. No. 171 of 1886, which were decided by the present
learned Chief Justice and my brother Tyrrell on the 22 ad of February, 1889.

Now in disposing of the case I do not wish to consider these various
rulings in detail, because in my opinion the whole point upon which Mr.
Gobind Prasad 's argument rests is that according to the terms of the
wajib-ul-arz in the case not only does pre-emption arise in respect of sale
and mortgage, but also in respect of a simple gift without valuable consi-
deration. The learned vakil in so arguing has invited my attention to
the terms of the wajib ul-arz in the two unreported cases above mentioned,
and I think I may say that there is perhaps some cogency in the
analogical comparison which he drew from the terms of the wajib-ul-arz
in those cases as supplying a rule of interpretation for this wajib-ul-arz
also. But, be it as it may, I think the exigencies of this case require me
only to interpret this wajib-ul-arz, which is the document before me, and
of which s. 6 relating to pre-emption runs as follows :




Now the words upon which Mr. Gobind Prasad relies most are two.

The first is the use of the word < s . or " et cetera " after the words

V A J j V., " gale and mortgage," and the second word upon which the

learned vakil relies ia the word" J^l " or "transfer," which occurs



later on in the pre-emptive clause. I am of opinon that, although the
clause is not so clearly worded as it might hav3 been, the rule of inter-
pretation is well recognized, that where words describing one class of
objects are employed and followed by the words " et cetera," or words of
a like signification, it must be understood that they are limited to that



class of objects. Here it is clear to my mind what"^" and

mean, one meaning " sale" and the other " mortgage," and the term

" et cetera," "*/**> ," which is employed thereafter, does not render the

right of pre-emption available in respect of any such transaction as a
simple gift, that is to say, gift without consideration or a shankalp as in this
case. I am fortified in this interpretation by the use of the word " ^2 "
that is to say ' sell," which occurs later on in the clause, and in view of
these words the generic term" jUiij or "transfer" does notin my opinion



1891
NOV. 23,

APPEL-
LATE
CIVIL.

14 I. 833 =
12 &.W.N

(1892) 39.



(1) 7 A. 482.

581



14 All. 336



INDIAN DECISIONS. NEW SERIES



[Yol.



1891 extend the right of pre-emption to .any transfer which may be without
Nov. 23. pecuniary consideration.

Moreover, I have frequently said that in such cases of pre-emption,

APPEL- though based upon the wajb-ul-arz, in case of doubt or difficulty the

LATE principles of the Muhammadan law of pre-emption, which originated the

CIVIL. "ght in India, should be applied, and here the finding being clear that the

shankalp complained of was without pecuniary consideration and was a

li A. 888= simple gift, it follows that no right of pre-emption would exist.
12 A. W.N. I therefore hold that the Courts below acted rightly in dismissing the

(1892) 39, suit, and I dismiss the appeal with costs, as the respondent is represented
by Mr. Becha Ram holding the brief of Mr. Madho Prasad.

Appeal dismissed.

it A. 836 = 12 A. W.N. (1892) 21.

KEVISIONAL CRIMINAL.

Before Mr. Justice Knox.



[336] QUEEN-EMPRESS v. SUDRA.* [llth December, 1891.]

Criminal Procedure Code, s, 337 Pardon Trial of person who hiving accepted a pardon
has not fulfilled tin condit ons on which it was offered.



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 87 of 155)