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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 91 of 155)
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dered relevant to this report;, and is of importance in the branch of pro-
cedure to which it relates. Straight, J., said :

" Apart from all questions of inconvenience or embarrassment to
the principal defendant in the conduct of her defence should she fail to
establish the adoption oa which the whole fabric of her case rests, I do
not see how, as between the plaintiffs and the joined defendants, no matter
in which case, any decision that can be passed will estop either of them
from subsequent assertion of their rights against one another in a separata
suit. It does not appear to ma that the plaintiffs in either case could have
joined the other plaintiffs in their original plaint as defendants, for they
sought no relief against them, and the relief they did seek against Musam-
mat Naraini Kuar was not, in the sense of section 28, in respect ' of tha
same matter.' The joinder of the two sets of plaintiffs as defendants,
in accordance with the order of the Subordinate Judge, can only be
reasonable if they ara to be legally bound by the decree in one suit, not
only as to the principal defendant, but as between themselves; and it is
only in this sense that their presence before the Court is necessary in
order to enable the Court effectually and completely to adjudicate upon
and settle all the questions involved in the suit.' Bat the question invol-
ved in each suit is not what are the rights of two sets of plaintiffs inter
se ; the issue to be decided between the defendant Musammat N-traini Kuar,
and eaoh set of plaintiffs is perfectly plain and intelligible, and, as she is in
possession, the burden of proof will be on those who assail her title. Neces-
sarily all the plaintiffs are interested in the determination of the "adoption"
set up by the principal defendant ; but, as I have already remarked, I do not
see how a finding upon this point in either suit can bind the joined
defendants to the plaintiffs or the plaintiffs to the joined defendants in
respect of their mutual claims between one and another to the property ;
or in the event of the principal defendant establishing the adoption in one
case, can obviate a second trial. No plea of res judicata could be sustained.
[369] Upon the argument before us, Mr. Hill for the appellant called our
attention to three judgments of Sir Barnes Peacock, reported in 7 W.B.




14 All. 370

p. 202 ; 8 W.E., p. 16 ; W.E., p. 368, which are valuable and instructive.
For though these were given upon cases arising under section 73 of Act VIII
of 1859, the reasoning and principles of interpretation enunciated may
appropriately be followed in construing section 32 of Act Xof 1877. Under
section 73 of Act VIII of 1859, the Court bad power to join ' all parties
who may be likely to be affected by the result,' an expression that
might be taken to mean a great deal more than was ever intended by
the legislative authorities, and which Sir Barnes Peacock, in the judg-
ments already adverted to, was careful to qualify and reduce within
intelligible limits. But now reading, as I think one should, sections 28,
29, and 32 of Act X together, the terms ' questions involved in the suit'
must be taken to mean questions directly arising out of, and incident to,
the original cause of action, in which, either in character of plaintiff or
defendant, the person to be joined has an identity or community of inter-
est with that party, in the litigation on whose side he is to be ranged.
I do not lay this down as an invariable rule by which applications under
section 32 of Act X should be determined, for cases may arise similar to one
reported at p. 315 of Vol. 7 W. E., and another which may be found in
3 B.L.R., p. 23 ; but in the multitude of instances, it will be a useful test
to apply in deciding whether the presence of parties is necessary to enable
the ' Court effectually and completely to adjudicate and settle the questions
involved in the suit.' I entirely agree with the remarks of Pontifex, J.,
in Mahmood Badsha v. Nicol, Fleming and others (1) ; and applying them
to the present cases, it appears to me that the joinder of the two sets of
plaintiffs as defendants was not necessary to enable the Court effectually
and completely to settle the question arising between the plaintiffs and
Musammat Naraini Kuar in the respective suits." The order of the 4tb
of July, 1879, was on these grounds reversed. Both suits accordingly
[370] proceeded without being consolidated, but both were transferred to
the Court of the District Judge and heard together.

The District Judge having decreed (20th of June, 1881) the claims of the
plaintiffs in both suits for possession of their shares in the property with
costs of all parties out of the estate, the defendant, Naraini Kuar, filed
separate appeals in each suit. In the appeal of Naraini Kuar v. Piyare
Lai and others, the parties arrived at a compromise, of which the terms
were drawn up in a decree. In the appeal of Naraini Kuar v. Chandi Din
and others the Court (8th of July, 1885) ordered that the suit should be
referred to the District Judge, under s. 566, Civil Procedure, for a finding
"whether Chandi Din, plaintiff, was, according to Hindu law, as nearest
heir, entitled to the property left by Naubat Earn." The District Judge
found (15th of April 1886) that Cbandi Din was not the heir of Chaudhri
Naubat Earn, but that two persons, viz., Shib Lai and Bhairon Prasad,
now and at the commencement of the suit, both living, stood nearer in
point of heirship to Naubat Earn than did Chandi Din. Eeturn was made
accordingly. Objections disputing the correctness of this return were
disallowed, and the High Court (7th of December, 1886), affirming the con-
clusion of the District Judge upon the issue, dismissed Chandi Din's suit.
The judgment is reported at p. 469 of I.L.E. 9 All.

Mr. J. D. Mayne, and Mr. G.E A. Ross, for the appellant : Under
the circumtances the order of the 8tb of July 1885, framing a new issue,
was not rightly made. It enabled the defendant, Naraini Kuar, to put
forward a new defence in the Court of appeal, which had not been set up

(1) 4 0. 355,




14 A. 366


14 All. 37i




MARCH. 25,



11 A. 366


in the first Court. This new defence was inconsistent with that on
which she relied in the other suit, tried with this, in which she was
defendant. At the trial of the new issue much of the evidence consisted
of that adduced in the compromised suit. Naraini in that suit had
originally pleaded that the plaintiffs, Piyare Lai, Shib Lai and others, were
strangers and not of Naubat Ram's family. She was, therefore, debarred
from taking the. inconsistent ground that they belonged to his [3713
family in a degree nearer than that of the plaintiff Chandi Din.
Objections had been taken on behalf of the latter to the admission of
evidence, which, however, had been admitted with the result that the
pedigree put forward for the defence was found proved. This finding was
tantamount to one that Shib Lai and Bhairon Prasad of the family of
Piyare Lai, who had died during these proceedings, were seventh in descent
from one Hiraman, the ancestor common to them and to Chaudhri Naubat
Bam, to whom, in fact, as might have been found but for the irregular
admission of evidence, Chandi Din was the nearest heir.

Mr. B. V, Doyne and Mr. C. W. Arathoon, for the respondent, were
not called upon.

Their Lordships' judgment was delivered by LORD HoBHOUSE.


In this case their Lordships understand that no question is raised for
the purposes of this appeal as to the correctness of the findings of the
High Court either in law or in fact, but the objection is one preliminary
to those findings, and consists of a suggestion that the High Court
have committed improprieties in point of procedure by which the
appellant has been prejudiced. The first impropriety alleged is the
remand to the District Judge in order to try the issue whether the
plaintiff Chandi Din is the nearest heir under the Hindu law to the
estate left by Naubat Bam. It is contended that inasmuch as the
defendant Naraini Kuar had not raised that issue in her written
statement, and as the issue had not been tried by the District Judge,
she was debarred from raising it. Their Lordships think that there is
no ground for that contention. When the suit was first instituted
against Naraini she claimed under an alleged adoption of the deceased
husband by Naubat Bam, and she disputed the title of the two rival sets
of alleged heirs who brought suita against her. The title of Piyare Lai and
others was established against her by decree ; and although that decree
was not affirmed by the High Court, but was the subject of compromisa
between her and others, she then had a perfect right to say : " That title
which I disputed or ignored before has been established against me
by a decree, and I now claim to set it up in order to defeat the [372]
claim made by persons who allege that they are heirs of Naubat
Bam." She had a right to have that question tried, and the High Court
directed it to be tried.

The next objection is that a quantity of evidence has been improperly
admitted ; and in order to see exactly how that stands, their Lordships
will take notice of the state of the litigation.

Two suits were brought against Naraini Kuar in the year 1879, one
by Chandi Din, the present appellant, who claimed to be the heir of
Naubat Bam, and the other by Piyare Lai and others, who also claimed
to be heirs of Naubat Bam. The District Judge attempted to consolidate
those suits so as to settle the question unc flatu between the various litigant
parties, but, no doubt for good technical reasons, that well-meant attempt


was defeated, and the two suits bad each to go on independently of the 1892
other. But in point of fact there were issues in those suits which wore MARCH 25.
identical with one another, and they went on part passu, and were tried
simultaneously before the District Judge. PRIVY

There was one question a material one which was not common to COUNCIL,
the two suits, and that was the question whether Piyare Lai and his
faction, as they are called his co-plaintiffs were of kin to Naubat Bam. *** 366
That question did not "arise in Chandi Din's suit, but it was certainly a (P.C.).
most reasonable course that the evidence taken in one suit should be
admitted in the other ; and the parties came to an agreement on the 12th
ol January 1881 that the evidence adduced in the case of Piyare Lai
should be accepted also in the case of Chandi Din. There was no limit
then put as to the kind of evidence that was to be adduced. The agree-
ment extends to the whole evidence, and the whole evidence in Piyare
Lai's suit was imported into that of Chandi Din. When the remand took
place, a further agreement was come to between the parties on the 19th
of January 1886, by which it was agreed that the evidence recorded by the
Subordinate Judge in a subsequent suit that was brought by the co-
plaintiflfs of Piyare Lai should be admitted for the determination of the
issues in the present case ; and subsequently to that, viz , on the 15tb of
February 1786, an application was made that the [373] original papers
contained in the record of the case of Choudhri Shib Lai and others v.
Chandi Din, and those in the case of Choudhri Shib Lai and Piyare
Lai and others v. Naraini Kuar, decided on the 20th of June 1881, should
be perused, and on -that day an ordar was made thab the list of documents
produced in Piyare Lai's suit should be put up with the record. All that
list appears to have been treated as evidence upon the trial of the issue
ordered by the remand.

It is objected that the agreement of 1881 should be limited by confin-
ing it to that evidence which related to the issues common to uhe two
suits ; and it is alleged that the District Judge erred in admitting for the
trial of the issue on remand the whole of the evidence which was admit-
ted under the order of 1881. But their Lordships find that there was
ample opportunity for considering the effect of the evidence admitted by
the order of the 15th of February 1886. The evidence appears to have
been taken into consideration on the 19th, 20th, and 22nd of February
1886. The 10:h of March was fixed for the bearing, and in fact the case
was heard from the 1st to the 3rd of April 1886. There seems to have been
some discussion as to the admission of particular documents ; it does not
matter exactly what the discussion was, but it shows that the attention of
the parties was called to the state of the evidence ; and there does not appear
to have been any objection made then to the admission of this evidence in
bulk. The District Judge, in his judgment, refers to the agreement to take
the evidence in the second suit of Piyare Lai's party, and then he states
this : " Of the evidence adduced on behalf of the appellant Rani Naraini
Kuar, a great portion consists of that adduced by Piyare Lai and others in
their former suit against her ; " but he does not>go on to say that any
objection was taken. It is apparent that no objection was taken ; but an
objection wad founded upon that evidence to the effect, as has been already
referred to, that Naraini Kuar was by her conduct in Piyare Lai's suife
estopped from raising the issue which the District Judge had to try
between her and Ghandi Din.

[374] Now it appears to their Lordships that if there was any objec-
tion to the admission of this evidence it should have been made at that


All. 375




14 A. 366


time. Either there should have been an objection that the agreement of
1892 1881 did not apply to it, and that it should be rejected in toto until proved
MARCH 25. independently, or some application should have been made providing
that Ghandi Din should be placed in as favourable a position as if the
evidence had been originally adduced against him by Naraini Kuar,
instead of being adduced by Piyare Lai. But nothing of the kind took

On appeal to the High Court some objection was made, which it is
not very easy to construe, to the effect that the District Judge had mis-
apprehended the consent as to reading the evidence on the record of the
cases pending in the Subordinate Judge's Court ; but even then no objection
was raised that the District Judge was wrong in admitting the evidence
adduced in the case of Piyare Lai v. Naraini Kuar. Therefore it is very
difficult for the appellant to make anything of that written objection upon
the appeal. Before the High Court it appears that certain specific objections
were made to a large number of documents. In the first place, an objection
was made to the whole, as not coming from proper custody. But that is
not an objection that they were not properly admitted, excepting on the
one ground that they did not come from the proper custody.

There are a number of specific objections on other grounds, but no
trace of an objection that the District Judge was wrong in admitting the
evidence in bulk as given in the suit of Piyare Lai.

Their Lordships are clear that the parties really intended that the
evidence should be admitted ; and probably it was the most reasonable
course to take. There is no reason to suppose that if any objection had
been taken by Cbandi Din the whole of this evidence could not have been
proved against him ; and the parties took a shorter and a cheaper course
by admitting it in bulk, as it was given in the suit of Piyare Lai.

[375] In the result their Lordships will humbly advise Her Majesty
that the judgment appealed against ought to stand, and the appeal must
be dismissed with costs.

Appeal dismissed.

Solicitors for the appellant : Messrs. Barrow and Rogers.

Solicitors for the respondent : Messrs. T. L. Wilson and Co.

14 A. 375 = 12 A.W.N. (1892) 48,

Before Sir John Edge, Kt., Chief Justice, o.nd Mr. Justice Mahmood.

DEOKI PRASAD AND OTHERS (Plaintiffs] v. INAIT-ULLAH (Defendant).*

[5th March, 1892.]

Muhammadan LawWaqf Waqf namaU containing provision (or descendants of

The fact that the grantor of a waqf has in the deed constituting the same made
some provision for the rn*int,flnanoa of his kindred and descendants will not ren-
der the wajq invalid. Sheik Mahom'd Ahian-ul'a Chowdhri, v. Amarchand
Kundu (1) and Muzhurool Huq v. Puhraj Ditarey Mohapattur (2) referred to.

[R.,80.0. 379.]

* Second Appeal No. 838 of 1868 from a decree of LaU LilU Prasad, Subordinate
Judge of Ghqzipur, dated the 21st March 1838, reversing a decree of Lala Bageshri
Dial, Munsif of Basra, dated the 17th November, 1887.

(1) 17 I.A, 28. (2) 13 W.R. 235.



THE facts of this case sufficiently appear from the judgment of Edge, 1892
0. J. MARCH 5.

Mr. Amiruddin, for the appellants.

The Hon'ble Mr. Spankie for the respondent. APPEL-


EDGE, C. J. The plaintiffs, appellants here, on the 19th of March OlVIL..
1885, obtained a money-decree against Kudrat AH. On the 27th of July
1885, Kudrat Ali executed a deed which is alleged to be a waqf-namah, ** A< 878sa
and thereby transferred a portion of his property to his son Inait-ullah. ^ A.W.N.
The appellants here proceeded to execute their decree against the portion U8 fl2 ) *8.
of the property which had been assigned by the deed of the 27th of July
1885. Inait-ullah filed objections claiming that the property was waqf.
His objections were allowed, and thereupon the plaintiffs brought this
suit against Inait-ullah and his father Kudrat Ali. The first Court decreed
the suit. The lower appellate Court allowed the appeal of Inaifc-
[376]ullah and dismissed the suit with costs. From the decree of the
lower appellate Court this second appeal has been brought;. Kudrat Ali
did not defend the suit. He is not a respondent here. The sole respon-
dent here is his son Inait-ullab. Mr, Amiruddin, for the appellants,
contended, firstly, that the assignment of the 27th of July 1885 was a
fraudulent transfer within the meaning of s. 53 of the Transfer of Proper-
ty Act. It is not necessary to decide whether or not s. 2, clause (d] of
the Transfer of Property Act excludes s. 53 of that Act, I say it is not
necessary to decide this, because it has been found by the lower appellate
Court that Kudrat Ali was possessed of other property quite sufficient to
pay off the decree. Consequently, the case cannot come within s. 53 of
the Transfer of Property Act. The other point taken by Mr. Amiruddin
is that the document of the 27th of July 1885 is not a valid wagf-namah
according to Muhammadan law. His contention is that it is void under
Muhammadan law, as it provides for the descendants and kindred of the
grantor, as well as for certain religious purposes, and he relies on the
decision of their Lordships of the Privy Council in the case of Sheik
Mahomed Ahsanulla Chowdhry v. Amarchand Kundu U). In my
opinion, the document which was considered there was a very different
document from the document which we have to consider here. In this
case the object of the wagf-namah was, firstly, to provide for the support
of the descendants and kindred of the grantor who might he in great want
and need of support, and the surplus of the income of the property was to
go to purposes which were undoubtedly religious purposes. In my opinion
that was a good waqf-namah and I would dismiss the appeal with costs.

MAHMOOD, J. The learned Chief Justice has already dealt with the
case so completely that I only wish to add a few words. One observation
which I have to make is that the deed of waqf-namah now before us was
a valid waqf-namah, according to Muhammadan law, and that the views
expressed by the learned Chief Justice in this case are in accord with
those expressed by Kemp, J., [377] in the case of Muzhurool Euq v.
Puhraj Ditarey Mohapattur (2). The next observation I have to make is
that these views were accepted by their Lordships of the Privy Council in
this very case of Shiek Mahomed Ahsanulla Chowdhry v. Amarchand
Kundu (l), and that that case, far from supporting the appeal, seems to
me to be opposed to it. For these reasons, I agree with all that has fallen
from the learned Chief Justice, and also in the decree which he has made.

Appeal dismissed.

(1) 17 I. A. 28. (2) 13 W. R, 235.

A VII-77

14 All. 378







11 A. 377 =

12 A.W.N,
(1892) 88.

14 A. 377 = 12 A.W.N. (1892)33.

Before Mr. Justice Straight and Mr. Justice Tyrrell.

DULI SINGH (Plaintiff) v. SUNDAR SINGH (Defendant).*

[5fch March, 1892.J
Hindu law Hindu widow Gift.

The widow of a separated Hindu being in possession, as suoh widow, of property
left by her husband, executed a deed of gift of suoh property in favour of her
daughter's son, her daughter being also a party to the deed. Subsequently to the
execution of this deed of gift the executant's daughter gave birth to another
son : held, that the deed in question oould not affect more than the : life. interests
of the executant and her daughter, and oould not operate to prevent the succes-
sion (as to a moiety of the properly) opening up in favour of the subsequently-born
son on the death of the survivor of the two ladies. Ramphol Bai v. Tula Kuari <1)
referred to,

CR., 35 C. 1086 (1090) = 8 C.L.J. 120 (122) = 12 C.W.N. 914.]

THE faots of this case sufficiently appear from the judgment of
Straight, J.

Mr. D. Banerji and Maulvi Ghulam Mujtaba, for the appellant.
Mr. Roshan Lai and Pandit Sundar Lai, for the respondent.


STRAIGHT, J. One Bbimjit was the admitted owner of the property
to which the suit relates, and he occupied the position of a separated
Hindu in possession of separate estate. He was married to one Hira
Kuar, who, upon his death in 1850, survived him. By Hira Kuar he had
one daughter, Musammat Bukmin, who was married to a man of the name
of Fateh Singh. By Fateh Singh she hai two sous, Kharak Singh, who is
a pro forma defendant in the present litigation, and Duli Singh, who is
the plaintiff. Hira [378] Kuar died in the year 1877. Bukmin and Fateh
Singh both died in th'e year 1882. Hira Kuar during her lifetime made
a deed of gift of the property now in suit with other properties in favor of
her grandson Kharak Singh. This was in the year 1872, and possession
was given and mutation of names recorded, a reservation being made in
the deed of gift in favour of the donor to the effect that an allowance of
Bs. 100 per annum was to be paid to her by the donee. At the time when
the deed of gift was assented to by Musammat Bukmin, Kharak Singh was
the immediate reversioner. It is also a material fact that at the time of the
deed of gift Duli Singh, the present plaintiff, had not come into existence.
At some time prior to his death Fateb Singh, professing to act as the
guardian of his minor son, Kharak Singh, made a charge in favour of the
defendant Sundar Singh in respect of the property in suit, together with
another share in it which we are not concerned with in the present
litigation. Subsequently, the defendant Sundar Singh obtained a de-
cree in respect of his charge and put it into execution against half
the property as representing the interest of Kharak Singh, and be
brought it to sale, and there is an end of that. Now, he has attached
the other half of the property as the property of his judgment-debtor and

, * First Appeal, No. 36 of 1891, from an order of B ibu Ganga Baran, Subordinate
Judge of Agra, dated the llth October 1890.

(1) 6 A. 116,




14 All, 380

be sought to bring it to sale. Duli Singh, the plaintiff, objected to the
sale ; bis objection was disallowed, and consequently he bas had to bring
the present suit to have his right in this particular property declared. It
is therefore obvious that tbe whole title of the defendant-respondent rests
upon the question of what by the transaction of 1872, Kharak Singh, his
judgment-debtor, had acquired. The case for the plaintiff is that as the
grandson of Bhimjit, his right to succession in the property of Bhimjit did
not arise of open up until tbe death of his mother in 1882, and that no
assent given by his mother to the transaction of the gift of 1872 could
affect his right or destroy his title to succeed to his share in the. estate

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 91 of 155)