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D.UP



(3d.C<*/yxJL/Jcf.



HARVARD LAW LIBRARY



Received -



\'H 10 1909




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THE



Allahabad Law Journal.



Reports



OF
CASES DKCIDED BY

The High Court of Judicature, North-Western Provinces,

AND BY

His AAajesty's Privy Council on appeal from India.



Editors :

Satish Chandra Banerji, m.a., ll.d.
Tej Bahadur Sapru, m.a., ll.d.



VOLUME V— 1908.



The Allahabad Law Journal Press, Allahabad.



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JUN 10 1909



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JUDGES OF THE HIGH COURT OF JUDI-
CATURE, N.-W. P.

1908.



CHIEF JUSTICE.

The Hon'ble Sir John Stanley, Kt., K.C, J.P.

[0« leave from loth June, 1908, lo 9th July, 1908.]

The Hon'ble Sir George Edward Knox, Kt., K.C, J.P.

[Acting from 10th June; 1908, to 9th July, 1908.]

PUISNE JUDGES.

The Hon'ble Sir George Edward Knox, Kt., C.S., J.P.
The Hon'ble PramadaCharan Banerji, B.A.,B.L., J.P.
The Hon'ble Sir William Burkitt, Kt., C.S., J.P.

[Rettred ixom 9th April, 1908]

The Hon'ble Robert Smith Airman, C.S., J.P.

[On leave for one month from 15th July, 1908.]

The Hon'ble Henry George Richards, K.C., J.P.
The Hon'ble Syed Karamat Husain, J.P.

[Took his seat on 21st January, 1908.]

The Hon'ble Henry Daly Griffin, C.S., J.P.

[Took his seat on 13th April, 1908.]



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TABLE OF CASES.



A. Page*.

Abdul Karim Khaii v. Makbul-un-nissa Begum, I. L. R., 30 All., 315. 598

Abdul Rashid t/. Abdul Latif ... ... ... ... 117

Ahmad Ali KhaD T/. Bilas Ral ... ... ... ... 402

Ahmad-ullah Khan t/. Murli ... ... ... ... 128

Ahsan AH, In the matter of ... ... ... ... 127

Ajudhia t'. Kunjlal, I. L. R., 30 All., 123 ... ... ... 72

Akbar Khan T/. Turaban ... ... ... ... 637

Akbar Khan 2/. Turaban ... ... ... ... 640

AH Ahmed 7'. Muhammad Owais Khan ... ... ... 715

Amir Hegum if. Bank of Upper India Ld., I. L. R., 30 All, 273 ... 336

Anandi Kunwari v. Ajudhia Nath, I. L. R., 30 All, 379 ... 557

Anant Ram, In the matter of— I. L. R., 30 All, 66 ... F. B. 40

.-\sma Bibi v. Ahmad Husain, I. L. R., 30 All, 290 ... ... 585

Atwari 7/. Maiku ... ... ... ... ... 612

Ayub Ali Khan 7". Mashuq AH Khan ... .. ... 739

B.

Babulal ?'. Ghansham Das ... ... ... 333

Babu Singh z\ Behari Lai, I. L R., 30 All, 136 ... ... 175

Bachan Singh 7/. Karan Singh ... ... ... ... 495

Bahadur Singh v. Xegi Puran Singh, I. L R., 30 All, 151 ... 160

Bahal Singh ?'. Mubarak-un-nissa, 1. L R., 30 All, 77 ... ... 52

Bajrangi Singh 7/. Manokarinka Baksh Singh, l.LR., 30 All, i P.C. i

Balwant Singh 7/. Girdhari Lmsaran Das, I. L. R., 30 All., 162 ... ... 130

Niaz Ahmed v. Abdul Hamid, I. L R., 30 AIL, 279 ... .. 278

Niaz Ahmed 7/. Mangulal ... ... ... ... 723

Nihal Chand 7/. Rustam Ali Khan ... ... ... 564

Nijabat Ali if. Wazir Ali ... ... ... ... 543

Niranjan v. Gajadhar, I. L. R., 30 .All., 133 ... ... ... 71

Nisar Husain v. Allah Bakhsh ... ... ... ... 742

Nita Ram v. The Secretary of State for India, I. L. R., 30 AH., 176, 166

P-

Pabitra Kuar v. Maharaja of Benares, I. L. R., 30 All., 367 ... 468

Pachkauri Ram v, Nand Rai, I. L. R., 30 AIL, 505 ... ... 658

Parasanni 7'. Ghareeb Das ... ... ... ... 708

Parbati 7/. Ram Prasad ... ... ... ... 511

Partab Singh v. The Delhi and London Bank Limited, L L. K.,

30 All, 393 ... ... ... ... ... 583

Phul Chand v. Chand Mai, I. L. R., 30 AIL, 252 ... .-.491

Piare Lai 7'. Nand Ram ... ... ... 732

R.

Radha Prasad Mullick 7/ Ranimoni Dassi ... ... P. C. 460

Raghubar Dayal 7/. Akhtar Khan ... ... ... 366

Raghubir Saran 7/. Het Ram ... ... .. ... 729

Raja Rai Bhagwat Dayal Singh v, Debi Dayal Sahu ... P. C. 184

Rajnath Singh 7'. Paltu ... .. ... ... 96

Ram Anant Singh v, Shankar Singh, I. L. R., 30 AIL, 369 ... 423

Rambhajan Lai 7/. Sheo Prasad ... ... ... ... 142

Ram Bilas v, King-Emperor, L L. R., 30 All., 364 ... ... 488

Ram Bilas v. Lai Bahadur, I. L. R., 30 AIL, 311 ... W B. 456

Ram Chander v. Kallu, I. L. R., 30 AIL, 497 ... ... 631

Ram Charan 7A Ram Partab ... ... ... ... 614

Ram Charan Das v. Gaya Prasad, L L. R., 30., AH., 422 ... F. B. 375

Ramdhan Sahu 7/. Lalit Singh ... ... ... ... 609

Ram Dihal Rai v. Maharajah Vizianagram, L L. R., 30 AIL, 488 ... 5y^9

Ramdin v. Bhup Singh, L L. R., 30 AIL, 225 ... ... 192

Ramjaggi Rai 7/. Kauleshar Rai ... ... ... ... 484

Ramjiwan 7'. Nawal Singh ... ... ... ... 644

Ram Kali 7/. Jamna, I. L. R., 30 AIL, 508 ... ... ... 629

Ram Lai v. Bahadur Ali, I L. R., 30 AIL, 372 ... ... 414

Ram Niwaz 7/. Dakko... ... ... ... ... 182

Ram Prasad v. Man Mohan, L L. R., 30 AIL, 256 ... ... 267

Ram Ratan v, Lachman Das, L L. R., 30 AIL, 460 ... ... 417

Ranjit Singh v. Baldeo Singh, L L. R., 30 All., 390 ... ... 516

Sadaruddin Ahmed 7'. Chhajju ... ... F. B. 717

Sada Shankar 7\ Hari Shankar ... ... ... ... 191

Saddu V. Behari Singh, I, L. R., 30 All., 282... ... F. B. 237



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( ix )

Safia Begum zk Shiam Prasad ...

Sagar Mai v. Makhan Lai

Samin Hasan v. Piran, I. L. R., 30 All , 319...

Salig Ram v, Tika Ram

Scrh Mai I/. Bhairon Prasad

Sbahbaz Khan «/. Umraopuri, I. L. R., 30 All., 181

Sheikh Alam v, Parmanand

Sheo Narain i'. Nur Muhammad, I. L. R., 30 All., 72 ...

Sheo Prasad t\ Indar Bahadur Singh, I. L. R., 30 All., 179

Sheo Ram Tewari v. Thakur Prasad, I. L. K., 30 AH., 136

Shcr Singh v. Sri Ram, 1. L. R., 30 All , 246

Shohrat Singh ?'. Sonkala Kuari ...

Siraj Husain v, Bulaki Ram

Sridhar Rao ^'. Ram Lai

Sultan Begum v. Debi IVasad, I. L. R., 30 All. 324

Sultan Khan 7'. King-Emperor ...

Surajbali v. Emperor ...

Surajmani v. Ratinath Ojha, L L R., 30 All., 84



Tajuddin v. Emperor ...

Tasaduk Husain Khan v. Ali Husain Khan...

Tejpal V. Girdhari Lai, L L. R., 30 All., 130...

The Bank of Bombay v, Suleman Somji

The Bank of Bombay v. Suleman Somji

The Cbliector of Mirzapore ?'. Dawan Singh, I. L. R., 30 All , 400

The Municipal Board of Bulandshahr v. Dakkhan Lai, L L. R,

30 All, 70
The Secretary of State for India in Council ?'. Basharatulla, I. L. R

30 All, 271
Thakur Prasad v, Gauripat Rai ...
Tikam Singh v. Khubi Ram, I. L. R , 30 All, 163
Tirbeni Sahai v. J agannath
T. P. Pether Permal Chetty 7\ R. Muniandy Servai ... P. C

Tuhi warn v. Izzat Ali, 1. L. R , 30 All, 192 • • •

U-

Uman Kuari v. Jarbandhan Pathak, I. L. R., 30 All, 479 *• • ^

Urami Begum v. Kesho Das, L L. R., 30 All, 462
Umrao Ali Khan v, Abdul Subhan Khan ...

Wilayati Begum v. Nand Kishorc, I. L R., 30 All, 231



C.



AGE.
622

754

300
140

247
147

48

20

258

106

251

642

162
633
352

691

155
67

159
470

112
661

463
486

45

262
260

173
725
290
253

447
470

545
547



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( X )



PRIVY COUNXIL.

Page.

Hajrangi Singh ?/. Manokarinka Haksh Singh, I.L.R., 30 All., i ... 1

Gaya Prasad Tewari v. Bhagat Singh. I. L. R., 30 All, 525 .. 665

Kalka Prasad v. Mathura Prasad, I. L. R., 30 All, 510... ... 701

Ma Wun Di 7/. Ma Kin ... ... ... ... 63

Radha Prasad Mullick v. Ranimoni Dassi ... ... ... 460

Raja Rai Bhagwat Dayal Singh %'. Debi Dayal Sahu ... ... 184

Surajmani v. Ratinalh Ojha, I. L. R., 30 All, 84 ... ... 67

T. P. Pelher Permal Chetly v. R. Muniandy Servai ... ... 290



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AUdhdbdd hav^ Journal



REPORTS.



PRIVY COUNCIL.

BAJRANGI SINGH and others

versus

MANOKARNIKA BAKSH SINGH.

Hindu Liitu — ilitakshara — wiiUnt/s estate — alienation — consent of
reversio/ters—Custom^Bha\c Sultan Chhattris o/ Oudh — Ex-,
elusion of daughters from inheritance

Among the BhaU Sultan Chhattris of Oudh, there is a custom
by which the daughters are excluded from inheriting their father's
property.

A Hindu widow,. governed by the law of Mitakshara, can alien-
ate her husband's property without legal necessity on obtain-
ing the consent of the whole body of persons constituting the
next reversion and it is not necessary for her to obtain the consent
of all his kindred who can reasonably be regarded as having
an interest in questioning the transaction. Ramphal Rai v. Tula
Kuari I. L. R., 6 All. ii6 not approved. Radha Shy am v. foy
Ram I. L. R., 17 Cal., 896 approved. Nobo Kishore v. Hari Nath
I. L. R., 10 Cal, 1 102, Maruda Mathu v. Srinivasa I. L. R., 21
Mad., 128, Vinayak v. Govind I. L. R., 25 Bom., 129 referred to.

Appeal against a judgment of the Court of the Judi-
cial Commissioner of Oudh affirming a decree of the Sub-
ordinate Judge of Rai Bareli.

Suit for possession.

The courts below dismissed the suit.

Plaintiff appealed.

The material facts appear from the judgment.

Ross for the appellant.

Z. DeGruytlur for the respondent.
The judgment of their Lordships was delivered by
Sir Andrew Scoble.— Sitla Bakhsh Singh, a Hindu
of the tribe of Bhale Sultan Chhattris, resident in Sul-
tanpur, died some time before the anne.xation of Oudh



Privy Council.

1907.

Odober zi.

Lord
Macnaghten,
Sir Andrkw

Scoble,
Sir Arthur

Wilson.



Sir A, Scibl\



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PRIVY COUNCIL



[A. L J. R.



Civil.

1907.

BajRangi

V.

Manokarnika.
Sir A. S coble.



leaving him surviving a widow named Daryao Kunwar,
and two daughters, Janga Kunwar and Jagrani Kunwar. He
was absolute owner of an estate known as Pindara Karnai
and other property, which at his death passed to his widow,
and at her death would have passed to his daughters, but for
a custom of the tribe excluding daughters and their issue
from succession. The widow died on the 6th of August
1892, having previously sold the whole of the estate to her
son-in-law, Maheshar Bakhsh Singh, the husband of her
daughter Jagrani Kunwar, and mutation of names in the
revenue registers was effected in his favour. After the death
of Maheshar, which occurred on the 3rd of April 1893, the
name of his son, Manokarnika Bakhsh Singh, the present
respondent, was entered in the government records as pro-
prietor of the estate ; and the present appellants (with one
Mahpal Singh, who died while the case was pending) brought
the suit now under appeal, claiming that, by reason of the cus-
tom of the Bhale Sultan Chhattris, they were the next heirs
in reversion to the estate of Sitla Bakhsh.

In the courts below, and before their Lordships two main
questions were raised. First, whether the custom had been
proved ; and, secondly, whether certain deeds confirming the
sales by the widow to Maheshar, executed by the then near-
est reversioners, and disclaiming all title to the property in
dispute, were binding on their descendants, the appellants,
who were the nearest reversioners at the time when the suc-
cession opened, at the widow's death. In the courts in India,
the District Judge held the custom not proved and the deeds
not binding ; the Judicial Commissioner came to the exactly
opposite conclusion on both points. The conflict of opinion
in the courts in India upon the questions of custom has made
it necessary for their Lordships to examine carefully the evi-
dence in this case, in order to ascertain whether the alleged
custom has been satisfactorily proved. In making this exa-
mination, their Lordships have been materially assisted by
the elaborate analysis of the evidence made by both the learn-
ed judges below, and by the learned Counsel who argued
the appeal. They will briefly state the grounds on which
they consider the judgment of the Judicial Commissioner on
this point must prevail.



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VOL. V.J



PRIVY COUNCIL.



The Bhale Sultan clan appear to have derived their name,
some three centuries ago, from their warlike exploits in the
service of the Emperors of Delhi. They are now settled in
considerable numbers in the district of Sultanpur in Oudh,
in several villages in which they constitute the bulk of the
population. In the language of the Indian Evidence Act 1872
(section 48) they form a "considerable class of persons." The
evidence in support of the custom was mainly oral, and no
document was produced of an earlier date than the British
annexation. Thirty-five witnesses were examined on behalf
of the appellants. They were all members of the Bhale Sul-
tan clan, mostly men of mature age and of good position.
They all gave evidence that in their clan it was the custom
that daughters and their issue were excluded from succession
to the separated estate of their father, and put forward thirty-
nine instances in which this exclusion had taken place. The
Judicial Commissioner held that twenty of these instances
had been satisfactorily proved. For the respondent no evi-
dence was given in contradiction of these irfstances, though
ample time was allowed for the production of such testi-
mony had it been available ; but six witnesses were called, one
of whom had signed a wajib-ul-arz in which the custom was
set up, and two gave evidence in support of the custom.

In corroboration of the oral evidence, a number of village
administration papers {wajib-ul-ars) were produced, of which
seven were admitted by both courts to be relevant, as relat-
ing to Bhale Sultan villages. In all these the rule is stated
that a daughter and her issue do not alal-umum (that is, as
a general rule) obtain the share. . One of them is attested
by 44 zemindars and lambardars of the village, another by
49, others by 8 or 10, The dates of these documents are not
given, but they were all officially recorded prior to the insti-
tution of this, suit, and quite independently of the parties
thereto.

One other piece of evidence remains to be noticed. It has
been stated that Sitla Bakhsh left two daughters, Janga Kun-
war and Jagrani Kunwar. In 1876, Janga Kunwar filed a
suit against her mother Daryao Kunwar and her brother-in-
law Maheshar Bakhsh for a declaratory decree that she was
entitled to succeed to half her father's estate j and in answer



Civil.

1907.

Bajrangi

V.

Manokarnik.v.
Sir A, Scoble



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PRIVV COUIs^CIL.



A. L. J. R.



Civil

1907.

Bajrangi

V.

Manor AkNiKA.
Sir A, Scoblc>



to hier claim, the.Vakil for the defendants put forward the plea
that " among Bhale Sultans a daughter never succeeded to
the inheritance of her father." The Court came to no decision
on the point, but disposed of the suit on another ground,
reserving Janga Kunwar's right to put forward her claim on
the death of her mother. The fact, howeN'er, that this defence
was raised shows that the existence of the custom was pre-
sent to the mind of Daryao Kunwar at the date of the trans-
actions to which their Lordships will now proceed to refer.

Although Daryao Kunwar appears to have been willing
to invoke the custom as a defence against the claim of her
unmarried daughter, she was at the same time endeavouring
to defeat the operation of the custom in regard to her mar-
ried daughter, Jagrani Kunwar, and her husband, Maheshar
Bakhsh Singh, the father of the present respondent. Dur-
ing the period from 21st October 1872 to 24th July 1875, she
executed five deeds of sale, by which she purported to trans-
fer, for valuable consideration, successive portions of her hus-
band's property to Maheshar Singh. The District Judge has
found that these deeds were executed without " legal neces-
sity" ; and it is certain that the preliminary consent of her
husband's reversionary heirs was not obtained. One of
these heirs, Matadin Singh, the father of the appellants, Jag-
damba Singh and Bajrangi Singh, brought a suit in the
court of the Deputy Commissioner of Sultan pur in 187310
set aside three of the deeds ; but on appeal this suit was dis-
missed on a technical ground by the Judicial Commissioner
on the 6th May 1874. Janga Kunwar's suit, already refer-
red to, was dismissed on the 25th August 1876. Having
thus succeeded, for the time being, in the courts, Daryao
Kunwar entered into negotiations with the persons who were
at that time admittedly the nearest reversionary heirs to her
husband's estate, and obtained from them two documents,
called deeds of relinquishment, one dated the 4th May 1877
and the other dated the 29th January 1878. The first of
these was signed by five persons, four of whom died without
issue in Daryao Kunwar's life-time, and the fifth, Baijnath
Singh, is the father of the plaintiff Mehpal Singh, who died
while this suit was pending in the court of the District Judge,
and who is now represented by the appellants. The second
was signed by Janga Kunwar, Matadin Singh (the father of



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VOL. v.]



PRIVY COUNXIL.



the present appellants), and Hanuman Singh, who is still
living, but is not a party to this suit. In these documents,
which are identical in terms, after enumerating the sales by
Daryao Kunwar to Maheshar Singh, the executants go on
to say : —

" We all have given our full consent to all those sale-deeds which the
Th«ikurain has executed in favour of the Babu, and will ever remain
so satisfied. And after the death of the Thakurain we shall bring no
c-aim against the Babu on account of the moveable and immoveable'pro-
pcrty owned by her ; hence we have executed this deed of agreement so
that it may serve as an authority, and be of use in time of need."

** It was not disputed," says the Judicial Commissioner in
his judgment, " that the executants of these deeds received
consideration for ratifying the transfers and agreeing not to
dispute their validity. Indeed it was said that they were
paid to execute the deeds." Upon these facts, the Judicial
Commissioner found that the transfers to Maheshar Singh
were valid, and dismissed the appeal.

The restrictions imposed by the Hindu Law upon the
widow's power to alienate her deceased husband's estate have
frequently been the subject of consideration by this Com-
mittee.

" For rdigious or charitable purposes, or those which arc supposed
to conduce to the spiritual welfare of her husband, she has a larger power
of disposition than that which she possesses for purely worldly purposes.
To support an alienation for the last she must show necessity. On the
other hand it may be taken as established that an alienation by her which
would not otherwise be legitimate may become so if made \<'ith the con-
sent of her husband's kindred." Collector of MasuHpatam v. Cavaly Ven-

ctita Nmraitwpch (i).

" The kindred in such case," their Lordships observe in a later case,
" must generally be understood to be all those who are likely to be in-
terested in disputing the transaction. At all events, there should be such
a concurrence of the members of the tamily as suffices to raise a pre-
sumption that the transaction" was a fair one, and one justified by Hindu
Law." Raj Lukhee Dabea v. Gokool Chunder Chowdhri (2).

Upon the practical application of this general principle
there has been much discussion in the High Courts in India.
A Full Bench of the High Court at Allahabad, in the case
oi Ramphal Rai v. Tula Kuari (^) considered that : —

" The plain principle deducible from these rulings of the Privy Council

(.1) (ifi6i) 8 Moo. L A. 529 at p. 551. (2) (1869) 13 Moa J, A. 209 at p. 228.
(3) (1888) L L. R. 6A11 ii€.



Civil.
1907.

BAJRANGI

V.

Manokarnika
Sir Ai Scoble



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PRIW COUNCIL



[A. L J. R



Civil.

1907.

Bajranoi

V.
MANOKARIflKA.



is that in order to viilicjate an alienation by a Hindu widow of her de-
ceased husband*s eiitate for purposes other than those sanctioned by the
Hindu Law, it must have the consent of all those among his kindred
who can reasonably be regarded as having an interest in questioning the
transact! •n.'*

And they accordingly held that the consent of the heir
presum ptive to' an alienation by a widow was not sufficient to
defeat the rights of a more remote reversioner, and that an
assignment by the widpw to the heir presumptive had no
greater effect in her favour than it would have had if he had
been a stranger. ** We think," say the learned Judges,

"that the spirit of the Hindu Law is to keep the right of succes-
sion to the deceased husband's estate open until the widow's death, free
of any -control by her, except in such cases as she has a. power- to
adopt ; and jthat no reversioocr possesses such a present vested interest
as engbies him to combine with her in defeatipg his co-reversioner. In
other words, her right £^nd theirs have one common basis, that of sur
vivorshiji to the widow, and it is incapable of anticipation."

The High Court of Calcutta has taken a different view,
based upon a long current of authority in that Court, albeit
two of the learned judges— Garth, C. J., and Pigot, J.— con-
sidered that the principles on which the decision was founded
were open to great objection. In the case of Nobokishore
SarmaRoy v. Hari Nath Sarma Roy (*), a Full Bench held
that under the Hindu Law current in Bengal—

"A transfer pr conveyance by a widow upon the ostensible ground
of legal neccssi'ty,, such transfer or conveyance being assented to by the
person who at the time is the next reversioner, will conclude another
person not a party thereto, who is the actual reversioner upon the
death of the widow, from asserting his title to the property."

The ground of the decision is thus shortly stated by
Garth, C. J :—

" If it is once established as a matter of law that a widow may relin-
quish her estate in favour of her husband's heir for the time being, it
seems impossible to prevent any alienation which the widow and the



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