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which, apparently, that Court held that without a suit for possession, or a
suit for declaration of absolute title, a conditional vendee did not under the
Regulation become an absolute vendee. The learned Judges in that case
refer generally to the fact that such was the result of the decisions in
that Court. I am unable to agree either with their conclusion, or with the
proposition that the invariable decisions of the Court supported that view.
Mr. Spankie also referred to Jaikaran Bai v. Ganya Dhari Bai (3), Prag



(1) 10 M.I.A. 340 at pp. 350-1.



(2) 12 C.L.B. 479.
630



(3) 3 A. 175.



YII] ALI ABBAS V. KALKA PRASAD 14 All. 412

Ghaubey v. Bhajan Chaudhri (l) and to Basik Lalv.Gajraj Singh (2), which 1892
apparently [411] supported his contention. He also criticised certain other MARCH 16.
judgments of this Court. On the other hand, Mr. Bam Prasad, for the res-
pondent vendee, or rather heir of the vendee, relied on Moonshee Syud FULL
Ameer Ali v. Bhabo Soonduree Debia (3), Mohunt Ajoodhya Pooree v. BENCH.
Sohun Lai (4), Jeorakhun Singh v. Hookum Singh (5), Musammat Ta.ro.
Kunwar v. Mangri Meea (6), Hazari Bam v. Shankar Dial (7) and Tawak- ** * * 03
kul Bai v. Lachman Bai (8). It appears to me that the principle of (F.B.) =
the decisions of those cases shows that on the expiration of the year 12A. ff.N.
of grace, provided that anything remains to be paid under the mort- U892) 108.
gage and the proceedings under the Regulation were regular, all of
which facts appear to have been found here, the title of the condi-
tional vendee becomes that of an absolute vendee and the sale becomes
an absolute sale on that date. In one of those cases, viz., Jeorakhun
Singh v. Hookum Singh (5) the decision of their Lordships of the Privy
Council in Forbes v. Ameeroonissa (9) is very fully considered, and it
appears to me that the right interpretation was placed upon it. With regard
to that case in the Privy Council it is to be observed that the decree which
their Lordships gave to the conditional vendee was a decree that the ap-
pellant before them, who was conditional vendee, " was entitled to the
possession of the mortgaged premises as absolute owner by virtue of the
conditional sale, which had been duly made absoluta, but was not enti-
tled to a decree for any mesne profits. " Apparently the reason why he
was deprived of a decree for mesne profits was his own conduct. Our
brother Mahmood and Mr. Justice Duthoit in Tawakkul Bai v. Lachman
Bai (8) agreed with the view of the Judges in the case in the Agra
High Court Reports, 1868, p. 358. I notice that in s. 7 of Regulation
XVII of 1806, reference is made to the mortgage being fully foreclosed in
the manner provided for in s. 8, and I also notice in the concluding portion
of s. 8 that bbeparwana therein provided for is to notify to the mortgagor,
amongst otber things, that in certain events " the mortgage will be fully
foreclosed, and the conditional sale will become conclusive.' The suit for a
[412] declaration of title may be necessary where the vendee wishes to
clear his title' by obtaining a decree of the Civil Court declaring his title to
be that of an absolute vendee. Such a suit could not be maintained if he
were not de facto and de jure the absolute vendee at the date when the
suit was brought, therefore ib appears to mo that it cannot be said that
his title* as absolute vendee first came into existence when he obtained a
decree in his declaratory suit. In my opinion, limitation in this case
began to run from the 27th of August,1874,when the year of grace expired
under the circumstances of this case, and that is the answer which I
would give.

STRAIGHT, J. I am of the same opinion. I only wish further to
add that having heard the fuller argument of this case and of the point
referred, I am of opinion that the two rulings to which I was a party,
one reported in I.L.R., 4 All. 414, and the other in I.L.R., 8 All. 54, were
erroneous decisions and must no longer be regarded as binding.

TYRKELL, J. My answer to the reference is that the right to sue in
the present case accrued on and after the exiry of the year of grace on
the 27th of August, 1874.



(1) 4 A. 291. (2) 4 A. 414. (3) 6 W.R.G.R. 116.

(4) 7 W.R.C.R. 428. (5) Agra 358. (6) 6 B.L.R. App. 114.

(7) 3 A. 770. (8) 6 A. 344. (9) 10 M.I. A. 340.

631



14 All 413



INDIAN DECISIONS, NE.W SERIES



[Yol.



1892

MARCH 16.

FULL
BENCH.

14 A. 405.

12 A.W.N.
(1892) 108.



MAHMOOD, J. Consistently with my judgments in the cases of
Tawakkul Rai v. Lachman Rai (1) and Ajaib Nath v. Mathura Prasad (2)
I am of the same opinion as the learned Chief Justice and my brothers
Straight and Tyrrell.

KNOX, J. I am of the same opinion as the learned Chief Justice and
my brother Tyrrell, and would answer this reference in the same manner.



14 A. 413 = 12 A.W.N. (1892) 79.
[413] EEVISIONAL CIVIL.
Before Mr. Justice Mahmood and Mr. Justice Knox.



MIHR ALI SHAH (Petitioner) v. MUHAMMAD HUSEN AND OTHERS
(Opposite parties)* [25th March, 1892.]

Revision Powers of Riyh Court Jurisdiction Act IX of 1387 (Small Cause Courts
Act\ sch, ii, cl. (18).'

Unle~p the facts from which want of jurisdiction on the part of a subordinate
Court may be inferred are patent upon tho face of the record, the High Court
will not interfere in revision.

A suit by a Muhammadan to obtain a share in property distributable undec
the term? of a certain endowment is a suit of the nature contemplated by clause
; (IS) of schedule ii of the Provincial Small Cause Courts Act IX of 1887, and
therefore not cognizable by a Court of Small Causes.

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

Pandit Sundar Lai, and Maulvi Ghulam Mujtaba, for the applicants.
Mr. D. Banerji, for the opposite parties.

JUDGMENT.

MAHMOOD, J. This is an application under a. 622 of the Code of
Civil Procedure invoking the aid of this Court as a Court of Kevision to
disturb the decrees of the Munsif of Agra and the Subordinate Judge of
that district as the Appellate Court which disposed of the case in appeal.

The solitary ground upon which such interference is invoked is, that
the Court of the Subordinate Judge and the Munsif at Agra had no juris-
diction to try this suit, which was exclusively cognizable by the Court of
Small Causes at Agra. In arguing this matter much ability has been
displayed on behalf of the appellant by Pandit Sundar Lai and Mr, Ghulam
Mujtaba, and in resisting it we have to deal with the argument of
Mr. Dwarkanath Banerji, who appears for the opposite party.

The facts out of which this dispute has arisen are very simple.
It is admitted that fco the tomb and shrine of Shah Vilayat Shah is
[414] attached certain property of which the profits have to be devoted
to the durgak, and that such property is not only devoted to the expenses
contingent upon the ritual of the Muhammadans in respect of such
matters, but is also distributed among his descendants, among whom the

* Application No. 28 of 1891 for revision, under s, 622 of the Civil Procedure Code,
of a decree of Babu Ganga Saran, Subordinate Judge of Agra, dated the 3rd April,
189,1, varying a decree of Maulvi Muhammad Shafi, Munsif of Agra, dated the 28th
Hovember, 1890.

(1) 6 A. 344. ) (2) 11 A. 164.



YII MIHR AH SHAH V. MUHAMMAD HUSEN 14 All. 415

parties to this litigation are admitted to be. It is also admitted that in 1892
respect cf such properties the plaintiff has no right of personal ownership, MARCH 25.
but that the right by which he collects the income of the property is in
the capacity of sajjada-nashin, or, to use the phrase employed by the RBVI-
lower Courts, as mutaivalli, and, to use the English simple phrase, he SIGNAL
would be called the trustee of tha property. ClVIL.

It seems that the parties to this litigation are not on friendly terms,

because this very suit shows that the share claimed by the plaintiffs, *'* ~J^
respondents, being the share to which they were entitled under the object * '

of the waqf, though found to be due to them, has not been paid by the
defendant sajjada-nashin. There is not one question pressed upon us
showing that the concurrent findings of both the lower Courts are wrong
upon the merits as to the amount due to the plaintiffs whom Mr. Banerji
represents.

But it is argued that although the plaintiffs might have had such a
right of claiming the money that they did claim in this suit, yet the suit
was of a character not entertainable in an ordinary Court of Civil Judicature
because of s: 16 of the Provincial Small Cause Courts Act (Act No. IX of
1887), and it is then argued that because the suit was not a suit of an
ordinary civil character, therefore we should now set aside the decrees of
both the Courts below : leaving it open to the plaintiffs, respondents, to
bring any action in the Small Cause Court at Agra.

Now I have no doubt that the provisions of s. 16 of the Provincial
Small Cause Courts Act (Act No. IX of 1887) require that suits cognizable
by the Small Cause Courts should be entertainable by those Courts and
those Courts alone, but I am also satisfied that the provisions of s. 11 of
the Code of Civil Procedure (Act No. XIV of 1882) require that, unless it
is shown that a cause does not fall within the ordinary jurisdiction of a
Civil Court, the cause being, [415] as it is here admitted and conceded, a
cause of a civil nature, the Court is not to decline jurisdiction, so that,
if I understand these two clauses aright, the following question
arises :

Is there anything in the Provincial Small Cause Courts Act (Act
No. IX of 1887) to have ousted the jurisdiction of the Munsif of Agra as a
Court of first instance or of the Subordinate Judge of Agra as a Gourd of
appeal by reason of there being a separate Small Cause Court ?

In arguing this point to show that such was the case, Pandit Sundar
Lai and Mr. Ghulam Mujtuba, on behalf of the petitioner, have relied upon
two of my own judgments in Jai Devi v. Mathura Das (1) and in Masum
Ali v. Mchsin Ali (2). The argument in regard to these rulings on behalf
of the petitioner has been that the principle applies to this case also, and
that, therefore, the ruling of the Bombay High Court in Bebi Ladli Begam
v. Bibi Baje Rabia (3) requires us to set aside the decrees of the Courts
below with the effect that matters would stand exactly as they did before
the litigation ever was started, irrespective of what happened in the Courts
below.

Now, in the first place, there is much in the judgment of Markby, J.,
in the case of Drobo Moyee Dabec v. Bipin Mundul (4) which may have to
be considered as tb whether or not at this stage a plea such as that raised
in this application is to be entertained ; because it must be remembered

(1) 8 &.W.N. (1886) 193. (2) ]0 A.W.N. (1890) 201.

(3) 13 B. 650. (4) 10 W.R. C.B. 6,

633
A VII 80



14 All. 416



INDIAN DECISIONS, NEW SERIES



[Yol.



KEVI-

SIONAL

CIVIL.

14 A. 413 =
12 A.W.N.
(1892) 79.



that the Act upon which that ruling proceeded was the one which preceded
the present enactment and was in pari materia.

It is, however, not upon this ground that I wish to dispose of this
case. The petitioner never raised the question of jurisdiction, either in
the Court of first instance or in the lower appellate Court, and the mere
fact of contending that there was a want of jurisdiction at a stage such as
this, under s. 622 of the Code of Civil Procedure, is not sufficient to decide
whether that Court had or had not jurisdiction. Therefore, there was no
material and no findings [416] in the concurrent judgments of the lower
Courts to enable the petitioner to sustain his plea that there was any want
of jurisdiction in this case. The powers exeroiseable by this Court
as a Court of revision have been the subject of consideration by me in
numerous cases where I have held that, unless facts ousting jurisdiction
are patent from the pleadings of the parties and the findings of the Court,
this Court, as a Court of revision, should desist from interfering. Adopt-
ing the same views and applying them to this case, I do not think that
there is any reason to interfere.

I wish, however, to mention as to clause (18) of the second Schedule
of the Provincial Small Courts Act (Act No. IX of 1887) excluding
suits relating to a trust, that I regard this suit as presented by the
pleadings of the parties in this cause to be a suit of that character, and
that upon a former occasion also the same view was adooted by Stuart,
C.J., and Turner, J., in Miscellaneous No. 33B of 1877. Toe case is,
therefore, not shown to be a fit case for cognizance by the Small Cause
Court, and therefore the Courts below had jurisdiction, and I would
decline to interfere. I therefore reject this application with costs in all
the Courts.

KNOX, J. The pleadings in this case, in my opinion, show that it is
one of those cases which by clause (18), sch. ii. attached to the Provincial
Small Cause Courts Act (IX of 1887) was in distinct terms excluded from
the cognizance of the Small Cause Court. The parties before us in a
previous case, to which my brother Mahmood has alluded, contended over
property of the same nature, and in that case it was determined by this
Court that the case was not one for rent, but one relating to a trust, and
therefore under the Act then in force (Act No. XI of 1865) a suit which
Courts of Small Oauses could not hear and determine. Bearing these
facts in mind and for similar reasons to those already given, I am of
opinion that this case is one in which there is no cause for us to interfere,
and I would concur in dismissing the application with costs in all Courts.

Application rejected.



634



YII]



MAHABIR PEASAD V. PARMA



14 All. 418



14 A. 417 = 12 A W.N. (1892) 31.

[417] APPELLATE OIVIL.

Before Sir John Edge, Kt., Chief Justice and Mr. Justice Tyrrell.



MAHABIR PRASAD AND OTHERS (Plaintiffs) v. PARMA (Defendant).'

[31st March, 1892.]

Civil Procedure Code, ss. 13, 278, 331 Execution of decree Res judicata.

The plaintiff, having obtained a decree for possession of certain land, applied
for execution by delivery of possession. Whereupon a third party filed an
objection, in the Court of the Munaif, that; he held a prior decree for (possession
of tbe same land, and therefore the plain' iS's decree was incapable of execution.
This objection was allowed, and tbe plaintiff then sued for establishment of his
rigbt to possession of the land jointly with the objector, making the former
judgment-debtor and the objector defendants to the suit. The Subordinate
Judge in first appeal held that the Munsif had acted under s. 331 of the Code of
Civil Procedure, and, applying s. 13 of the same Code, dismissed the plaintiff's
suit. Tbe plaintiff then appealed. Held that circumstances did not exist to give
the Munsif jurisdiction to act under s. 331, and that his order must be taken to
have been made, as it purported to have been made, under s, 278. Buhal Singh
Chowdhry v. Behari Lai (I) referred to.

Tbe scope and application of s. 331 of the Code of Civil Procedure commented
upon.

THE facts of this case sufficiently appear from the judgment of the
Courb.

Pandib Sundar Lai, for tbe appellants.

Babu Jogindro Nath Chaudhri, for the respondent.

JUDGMENT.

EDGE, C.J., and TYRRELL, J. This second appeal has arisen out of
a suit in which tbe plaintiffs, who are appellants here, claimed a decree
for the establishment of a joint right of the plaintiffs and the respondent
h-ere in certain land and for joint possession, and certain other matters.
The facts, so far as they appear and are material to the consideration of
this appeal, are as follows : The plaintiffs had obtained a decree against
one of the defendants to this suit (defendant No. 2) for possession of the
land. After they had obtained that decree the defendant No. 1, respondent
here, filed an objection in the Munsif 's Court to the delivery of possession in
execution, alleging that he held a prior decree for possession of [418] this
land against defendant No. 2, and that he, and not the plaintiffs, was entitled
to possession, and alleging further that he, defendant No. 1, held posses-
sion. The Munsif proceeded to deal with that objection, -treating it as an
objection under s. 278 of the Code of Oivil Procedure. The facb that the
Munsif considered that be was acting under s. 278 of the Code is apparent
from the statement in his rubkar that the objection was made under
s. 278. The Munsif allowed the objection with costs; thereupon the plaint-
iffs brought this suit. The first Court decreed the suit. The defendant
No. 1 appealed and the lower appellate Court dismissed the suit, holding



1892

MARCH 31.

APPEL-
LATE
CIVIL.

14 A. 417 =

12 A.W.N.
(1892) 31.



* Second Appeal No. 9 of 1890, from a decree of M*ulvi Muhammad Mazhar Husain
Khan, Subordinate Judge of Gorakbpur, dated the 25th September, 1889, reversing a
decree of Pandit Alopi Prasad, Munsif of Basti, dated tha 21st January, 1888.

(1) 1 B.L.R. A.C. 206.
635



14 All. 419



INDIAN DECISIONS, NEW SERIES



[Yol.



1892 fc hat as against defendant No. 1 the suit was barred by a. 13 of the Code
MARCH 31. of Civil Procedure and that as against defendant No. 2 the suit did not lie
owing to s. 244 of the Coda. We have nothing to do with the suit so far
APPEL- as it related to defendant No. 2. The Subordinate Judge's grounds
LATE f r applying s. 13 of the Codo of Civil Procedure were the objection and
CIVIL, ^he order thereon which had been passed by the Munsif and the assump-
tion by the Subordinate Judge that the proceedings on the objection were
14 A. 417= proceedings under a, 331 of the Code. It is difficult to understand
12 A.W.N. how the Subordinate Judge came to that conclusion. On the face of the
(1892) 51. rubkar of the Munsif, as we have said, it was obvious that the Munsif
dealt with the objection as if s. 278 were the section which . applied. He
did not adopt any of the procedure of s. 331 of the Code. There was no
claim which he had numbered and registered as a suit between the decree-
holder as plaintiff and the claimant as defendant. The facts did not exist
which would have given him jurisdiction to proceed under s. 331. S. 331
begins thus : " If the resistance or obstruction has been occasioned." In
order to see what the resistance or obstruction referred to in s. 331 is,
we must refer to the previous sections. Now s. 328 is the first of the
group of sections relating to resistance to the execution of decree. The
intermediate sections, ss. 329 and 330, do not apply to this case, as the
resistance was neither on the part of the judgment-debtor nor of any
person at his instigation. Consequently the resistance or obstruction
mentioned in s. 331 must be the resistance or obstruction contemplated
by s, 328. Now the resistance or obstruction contemplated by that
[419] section is the resistance to, or obstruction of, the officer charged
with the execution of a warrant for the possession of property, and it is a
resistance or an obtruotion in the execution of a decree for the possession
of property. Now, so far as appears, the officer charged with the execution
of the warrant was not resisted or obstructed at all Such obstruction as
there was, was caused by the defendant No. 1 filing his objection in the
Munsif's Court. Again, there was no claim to be numbered and registered
as a suit within the meaning of s. 331. The word " claim " there has
been rather unfortunately used, because at first sight one would think that
"claim " and " claimant " had reference to each other; but the claimant
in s. 331 is the person who makes or causes the resistance or obstruction,
and it never could have been intended that an objection filed by him
should be numbered and registered as a suit in which the decree-holder was
to be made plaintiff ; in other words, it never could have been intended that
the decree-holder should be made plaintiff to support a claim put in by the
person objecting to his proceedings in execution. The claim mentioned in
s. 331 must mean the complaint which is mentioned in s. 328. That com-
plains is the complaint of the decree-holder, and not of the person causing
the resistance or obstruction. There were, in fact, no elements in this case
to give the Munsif jurisdiction to proceed or pass any order under s. 331.
If, contrary to what we believe, the Subordinate Judge is right in thinking
that the Munsif did proceed under s. 331, then all that need be said is
that his proceedings were without jurisdiction and his order is nugatory.
If, on the other hand, he proceeded, as be professed to proceed, under
s. 278, be was proceeding under a section which relates to the attachment
of property for the purposes of execution, and which does not relate, so
far as we can see, to the execution of a decree for possession of immove-
able property. In any case, the Munsif's order, if passed under s. 278,
would not operate as a bar to this suit. The view which we Cake of s. 331
is similar to that taken as to the corresponding section of a former Code,.

636



YII]



AMARNATH SAH V. ACHAN KUAB



14 All. 421



by Jackson, J., in Buhal Sing Chowdhry v. Behari Lai (1). The Subordi-
nate Judga has not tried this appeal on its merits ; he has decided it on a
[420] preliminary point, and wrongly. We set aside hia decree and re-
mand the appeal under s. 562 of the Code of Oivil Procedure to the Court
of the Subordinate Judge to be reinstated on his file and disposed of accord-
ing to law. Costs here and hitherto will abide the result.

Cause remanded.



14 A. 420 (PC.) =19 I. A. 196 = 6 Sar. P C.J. 197.

PEIVY COUNCIL.

PRESENT :

Lords Hobhouse, Macnaghten and Hannen, Sir B. Couch and
Lord Shand.

[On Appeal from the High Court at Allahabad.]



'AMARNATH SAH AND OTHERS (Plaintiffs) v. ACHAN KDAR AND
OTHERS (Defendants), [llth March and 14th May, 1892.]

Eindu law Hindu widow Burden of proving necessity where a Hindu wid w attempts
to ahenite $rcp:rt>i hild by her for he:- widow's estate.

In order to sustain an alienation of the property held by a Hindu widow for her
widow's estate, it must be shown either that there was legal necessity for the
alienation, or at least that the grantee wis led, on reasonable ground, to believe
that there was.

In suit upon a mortgage of such property executed under the authority of a
widow borrowing money, the point whether the loan was necessary was express-
ed in the issues in the form of a question how far the defendants' objections,
grounded on the absence of necessity, were tenable. This was obviously an
incorrect mode of trying the suit, because it assumed that i" was for the defendants
to show absence of necessity, and did not accord with the obligation upon a
mortgagee, claiming under a widow, to prove a valid mortgage. Is was sufficient
to defeat the suit that, upon the whole case, there had been no proof of the
lendor's having fulfilled the legal obligation to inquire and satisfy himself that
the widow, from whom he was taking a charge upon her husband's inheritance,
had a proper justification for so charging it. Hunojman Persaud v. Munraj
Koouweree (2) referred to.

[P., 21 A. 71 = 25 LA. 183 (P.C.) = 2 G.W.N. 729 = 7 Sir. 417 ; 137 P.K. 1892 ; Rel., 6
C.L.J. 490 (514) ; R., 17 A. 125 ; 24 A. 548 ; 27 A. 97 = 1 A.L.J. 435 (F.B.) = A.
W.N. H901) 174 ; 26 B. 206 (213) = 3 Bom. L.R. 738 (756) ; 10 C.L.J. 313 (315)
= 13 C.W.N. 1143 (P.C.) = 6A.L,J.8l7 = llBom. L.R. 1220 = 6 M.L.T. 277 = 19
M L.J. 682 = H1 A. 583 ; 12 C.L.J. 115 = 3 Ind. Gas. 330 (333) ; 17 C.L.J. 499
(536)- 17 C.W.N. 701 (727) = 19 Ind. Gas. 273 (285) ; 1 O.C. 30 (36).]

APPEAL from a decree (llth August 1888) reversing a decree (27th
May 1885) of the Subordinate Judge of Bareilly.

The suit oufc of which this appeal arose bad among its objects the
fixing a charge on thirteen villages, which had belonged to Khairati Lai,
deceased in 1866, who traded in Bareilly, under the firm of Eafctan Singh,
Khairati Lai, and whose family continued his business after his death.
His widow, Hulas Kuar, on the 4th of [421] April 1866 gave her general
mukhtarnama to her son-in-law, Lalji (fourth of the present defendants,
but who did nob appear to defend), authorizing him to manage the firm's



(1) 1 B.L.R.A.C. 206.



1892

MARCH 31.

APPEL-
LATE
CIVIL.

14 A. 417 =
12 A.W.N.
(1892) 51.



(2) 6 M.I.A. 393.



637



14 All. 422 INDIAN DECISIONS, NEW SERIES [YoL

1892 business. Lalji was the husband of her daughter Achan Kuar, the first
MAY H. defendant, and their two sons, Eaayefc and Sbamsher, were the second



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 95 of 155)