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1 861. In that judgment a short history of the estate is to be

found and official reports are quoted as elucidating the fiscal

history of the estate, and the positions of the conflicting

claimants. From this, it appears that at the session the name

of Kunwar Kheri Singh was recorded as proprietor of the

entire perganah but that the first settlement was concluded

generally with the mukaddams that at the second settlement

Kunwar Kheri Singh engaged for 21 villages and at the third

settlement for 26 but that owing to his incapacity and the



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595



fact that the revenue had fallen into arrears, Kunwar Kheri
Singh was excluded from the settlement and a suitable provi-
sion was made for him as an equivalent for his exclusion from
the management of the estate. The learned Judges held that
the allowance in question was actually granted as a malikana
allowance and that the plaintiffs possessed a proprietary title
to some extent in all the villages claimed but that the defend-
ants who then engaged with Government for the 54 mukad-
dami villages were possessed of proprietary rights in these
villages of a heritable and transferable nature. The con-
clusion at which the learned Judge arrived was that in the
case of the 54 mukaddami villages, there existed an inferior
proprietary right heritable and transferable which was vested
in the defendants then engaging as for these mauzahs.

We gather from this that there was no actual confiscation
by Government of the suf)erior proprietary right of Raja
Kheri Singh and no grant of that estate to the inferior pro-
prietors. What the Government did was to settle for the
revenue with the inferior proprietors reserving to Raja Kheri
Singh in respect of his superior proprietary rights a malikana
allowance. The inferior proprietors no doubt thus acquired
zamindari rights which they had not previously enjoyed but
these rights were acquired by virtue of and not independent!}-
of their pre-existing estate. The inferior estate became as it
were merged in the superior interest thus, I may say usurped.
Musammat Jaika had succeeded on the death of her husband,
Newal Rai, to his estate, and was recorded in the revenue
papers as lambardar. Then by virtue of the order of His
Honour the Lieutenant Governor to which I have referred
she and Ganga Ram acquired zamindari rights in respect of
6 biswas 13 biswansis and 5 kachwansis in the villages in
question of which Musammat Jaika was entitled to one half.
It is difficult to see how the accretion to her rights, thus
acquired, can be regarded as equivalent to a grant by Govern-
ment to Musammat Jaika in her own right of the estate
which formerly belonged to her husband, so as to enable her
to deal with it as her absolute property, and disappoint the
expectation of her daughters and the other reversionary heirs
of her husband to whom the property would, in the ordinary
course, have come upon her death.



Civil.

1908.

Kashi Prasad

V,

INDAR Kunwar
Stanley, C /.



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ClVIL.

1908.
Kashi Prasad

V.
INDAR KUNWAR.

Stanley, C. /.



The learned Subordinate Judge held that Musammat
Jaika inherited the property from her husband and did not in
her own right acquire the zamindari rights which Government
conferred. He observes as follows : — " It seems clear to my
mind that as Musammat Jaika's name was entered in revenue
papers in respect of her husband's lambardari rights as heir
of her husband, the zamindari rights in the shares in dispute
were also conferred on her by Government as representing
her deceased husband and as his heir, and she herself had
do.ie nothing to merit the grant of zamindari rights to her, and
she might never have acquired the zamindari rights, had she
not been heir and wife of Newal Rai deceased."

I think that the learned Subordinate Judge was right in
the conclusion at which he arrived. Musammat Jaika acquired
the property of her husband for a Hindu widow's estate, and by
virtue of her ownership derived from her husband acquired
from Government the zamindari rights which had not previous-
ly been enjoyed. The acquisition of these must I think be
taken to be an enlargement merely of the interest to which
she was entitled as the widow of Newal Rai and as such be
treated as acquired for the benefit of all persons interested as
reversioners in the estate of Newal Rai. Even if the act of
Government amounted to a grant of the zamindari rights to
Musammat Jaika, it appears to me that the doctrine of graft,
which is so fully dealt with under the leading case of Keech
V. Sandford {}\ would be applicable. The rule laid down
in the principal case is that when a trustee of lease-hold pro-
perty renews the lease in his own name, he must hold the
renewed lease for the benefit of his cestui que trust. This rule
has been extended, and it is applicable to the case of a pur-
chase of the reversion of an estate by a tenant for life, and is
based in such case upon the duty which lies upon a limited
owner to act in a matter of the kind for the benefit of the
whole interest. The principle is embodied in the Indian
Trusts Act 1882. Section 90 of that Act prescribes that
**VVhere a tenant for life, co-owner, mortgagee or other qualified
owner of any property by availing himself of his position
as such gains an advantage in derogation of the rights of
the other persons interested in the property, or where any
(1) 2 Wh. and T. Eq. Cas., 693.



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such owner as representing all persons interested in such
property gains any advantage, he must hold for the benefit of
all persons so interested the advantage so gained but subject
to repayment by such persons of their due share of the ex-
penses properly incurred, and to an indemnity by the same
persons against liabilities properly contracted in gaining such
advantage." Here Musammat Jaika who inherited from her
husband his estate as tenant for life acquired from Govern-
ment the zamindari rights which had belonged to Raja Kheri
Singh by virtue of her position as qualified owner and thus
gained an advantage in derogation of the right of the other
persons interested in the property. Consequently she was
bound to hold the advantage so gained for the benefit of all
persons so interested. If she had not been tenant for life of
the property of her husband Government woul \ undoubtedly
not have settled with her for the revenue. It was by virtue
of her possession of the estate as his widow and not other-
wise that she obtained the concession of zamindari rights
from Government. I f therefore there was a grant from Govern-
ment to her she became I think, a constructive trustee of the
rights so acquired for the parties entitled to the whole interest.
For the foregoing reasons I would dismiss the appeal.
BanERJI J. — I also am of opinion that the appeal should
be dismissed. In my judgment the effect of the settlement with
Musammat Jaika was to enlarge the widow's estate which she
held as heir to her husband Newal Rai. As such widow she held
a life-estate in the rights of Newal Rai as mukaddam. When
the Government made a settlement with her and Ganga Ram
the brother of Newal Rai, it only enlarged the mukaddami
rights held by them. So that the enlarged rights were held
by her in the same capacity in which she held the original
rights, namely, as a Hindu widow. I see no reason to assume
that absolute rights as proprietor were conferred on her
by Government She was not therefore competent to make
the transfer in suit. I express no opinion on the question of
graft or on the question whether she may be deemed to have
been a trustee for the persons entitled to the estate.

By the Court. — The order of the Court is that the appeal
be dismissed with costs including fees in this Court on the

higher scale.

J. p. Appeal dismissed.

78



Civil.

1908.

Kashi Prasad

V.
INDAR KUNWAR.

Stanley^ C. J,



Banerji, /



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Civil.

1908.

April y 4.

Stanley, C. J.

BURKITT, J.



Stanley, C /



ABDUL KARIM KHAN

versus

MAKBUL UN-NISA BEGAM and others.*

Succession CertificcUe Act ( VH of i68g)^ sections 2y 4^ Deferred dowef -
Debt-'Mahomedan Law.

Dower whether it be prompt or deferred, is a debt due from the
husband to the wife. Deferred dower is a debt payable in the
future. A court, therefore, cannot pass a decree for its recovery by
the heir of the lady without the production of a succession certificate.

First appeal against the decree of Babu Nihala Chandra,

Subordinate Judge of Moradabad.

Suit to recover a share of the dower debt.

The court below decreed the suit

Defendant appealed.

The material facts appear from the judgment.

B. E, G Conor and Sundar Lai, for the appellant

Moti Lai Nehru, Tej Bahadur Sapru and Mohan Led
Nehru, for the respondents.

The judgment of the Court was delivered by

Stanley, C. J. — This appeal arises out of a suit brought
by the plaintiff, one of the two heirs of Musammat Kadri
Begam, the deceased wife of the defendant, for her share of
the deferred dower of Mussammat Kadri Begam, which be-
came due on her death. The court below decreed the plain-
tiffs claim. Of the grounds of appeal only two were pressed
before us, one being that the suit was barred by limitation
and the other that without the production of a succession cer-
tificate the court below was not justified in passing a decree.

As regards the question of limitation, the allegation of the
defendant is that Kadri Begam died on the i6th of September,
1902, whereas the plaintiff says that she died on the 19th of that
month. If she died on the earlier date, the suit, which was not
instituted until the i8th of September, 1905, is barred. We
have carefully considered the evidence of the witnesses who
were examined for the respective parties. This evidence is
♦ F. A. No. 154 of 1906.



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very conflicting. But upon full consideration of it, we are
quite unable to hold that the learned Subordinate Judge was
wrong in the decision at which he arrived. He had the wit-
nesses before him and was in a better position than we are to
judge of the credit to be given to their testimony. The evid-
ence of the plaintiff's witnesses is corroborated by an entry of
the death in the register of deaths kept at the Police Station
at Chowk at Rampur where Kadri Begam died. Siraj-ud-din
proved this entry, and according to it Musammat Kadri
B^am, in the register described as Kazmi Begam, a name by
waich sh3 was also known, is stated to have died on the 19th
September, 1902.

The next question is as to the necessity for a certificate
under Act VII of 1889. Section 5 of that Act prescribes that
" no court shall pass a decree against a debtor of a deceased
' person for a payment of his debt to a person claiming to be
entitled to the effects of the deceased person or to any part
thereof ♦ ♦ ♦ except on the production of (i) probate or
letters of administration ♦ ♦ ♦

(it) A certificate granted under section 56 or section 57
of the Adminiitrator-G^neral's Act, 1874 * * * ,

{tii) A certificate granted under this Act and having the
debt specified therein, or

{iv) A certificate granted under the Regulation of the
Bombay Code No. VIII of 1827.

Sub-section 2 defines " debt *' as including any debt except
rent, revenue or profits payable in respect of land used for
agricultural purposes. Debt is therefore used in a very wide
se.ise. The plaintiff* has not produced probate, or letters of
administration or a certificate as required by the Act. It is
contended on her behalf that, inasmuch as the dower in res-
pect of which she sues was deferred dower, it never was pay-
a^le to Kadri Begam, and therefore her husband was not her
debtor within the meaning of section 4. Reliance is placed
upon two decisions of the Calcutta High Court as supporting
this contention. The first is the case of Nemahart Roy v.
Musammat Btssessari Kumari ( ' ;, in which it was held that the
Succession Certificate Act referred only to debts for the
(i)[i896i2C W. N:, 591.



Civiu

1908.

Abdul Karim
Khan

V.

Makbul-un-nisa
Begam.

Stanley y C.J,



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HIGH COURT.



[A. L. J. R.



Civil.

1908:

ABDUL Karim
Khan

V.

Makbul-ln-nisa
Begam.

Stanley^ C. J.



recovery of which the successor could sue, and that for debts
falling due after death an heir may sue without a certificate.
O'Kinealy, and RampinL, JJ, in their judgment observed: —
" In law we know two kinds of debts which have accrued
due and debts not accruing {stc) due, but which will be due.
Now the Succession Certificate Act refers only to such debts
as the deceased could sue upon. The debt in this case has
fallen due since the death of the deceased." The learned
Judges do not give any reasons for so restricting the meaning
of the word debt. We do not find any language in the
Succession Certificate Act to bear out the statement that the
Act refers only to debts for the recovery of which the deceas-
ed could have sued. The language of the Act is quite
general and defines a debt within the meaning of section 4 as
including *' any debt except rent, revenue or profits ♦ ♦ ."
Dower whether prompt or deferred is a debt due by the hus-
band to the wife, but in the case of deferred dower is debitum
in praesenti solvendum infuturo.

The next case is that o{ Mahamed Is hag v. SheikhAkram-
ul'Haq (•). In that case it was held that when a Mahome-
dan wife, who has not been divorced by her husband, dies
during her husband's life-time, the right to sue for her deferred
dower accrues for the first time to her heirs and that the
cause of action is not a joint one, but that any of the heirs
may sue the husband separately for her share, but that in
such a suit the presence of all the heirs is necessary in order
effectually and completely to adjudicate upon the claims of
the several heirs. We do not find in this case that any refer-
ence was made to the Succession Certificate Act. The
necessity for the production of a certificate under that Act
was apparently not considered.

Now the wife's right to dower whether prompt or deferred
accrues as soon as her marriage is validly contracted. She
can alienate it, pledge it, or make a free gift of it, either to
her husband, or to her relations, or to third parties. Mr.
Ameer AH in his " Personal Law of the Mahomedans" (2nd
Edition, page 392) says : — •* Dower is a debt like all other
liabilities of the husband and has preference over legacies
(2)11906] 12 C.W. N.,84



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601



bequeathed by the testator and the rights of heirs. A parti-
tion of the estate cannot take place until the dower debt has
been satisfied. When the wife is alive she can recover the
debt herself from the estate of her deceased husband. If she
be dead her representatives stand in her place and are entitled
to recover the same." Dower in fact, whether it be prompt
or deferred, is a debt due from the husband to the wife. If
the dower be prompt, it is presently payable. If it be defer-
red it is payable in the case of death or divorce — a debt
payable in future, but none the less a debt of the husband.
It is a debt which accrued due on the completion of the mar-
riage contract, but a debt payment of which is deferred."
" The law," said Brett, M. R. " has always recognized as a
debt two kinds of debt, a debt payable at the time, and a
debt payable in the future." IVeii v. Stenton (^). Deferred
dower is a debt payable in the future. We think therefore
that the Court cannot pass any decree in favour of the plain-
tiff without the production of a succession certificate. But
we also think that the plaintiff should have an opportunity, if
so advised, of producing such certificate. Accordingly we
shall defer passing a decree in this appeal for a period of two
months so as to give an opportunity to the plaintiff of obtain-
ing the necessary certificate. We accordingly adjourn the
hearing of this appeal for two months.

(I) [1883] L. R., II Q. B. D., 518, 524.



Civil.


1908.

Abdul Karim
Khan

V,

Makbul-un-nisa
Begam.


Stanley, C. /



NANNHI JAN
versus
BHURI AND ANOTHER. *
Code of Civil Procedure {Act XIV of i882\ section 283— I ntervenor—
Burden of proof ,
An intervener, in a suit brought by him, is bound to satisfy the
court that the document upon which the claim is founded represents,
a bona fide and genuine transaction, and that the burden does not lie
upon the defendant in the first instance to give evidence in proof of
the fraudulent and collusive nature of such document. Tulshi Rat v.
Ram Das, [1887 J A. W. N., 71 \Af2al Begam \. Muhammad Obcudat
Ullah, [1899] A. W. N , 220; Ram Nath v. Bindraban, I L. R., 18 All,
369 ; Govind Atmaram v. Santai, I. L. R., 12 Bom., 2/0, referred to.
Saba Bibiw, Balgobind, I. L. K., 8 All, 178, distinguisbtd.
♦ S. A. Na 567 of 1907.



Civil.

1908.

ApHl, 24,

Stanley, C. J.
Karamat

HUSAIN, Jt



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Civil.

1908.

Nannhi Jan

V,

Bhuri.



Stanley, C. /



Second Appeal against the decree of th^ District Judge
of Meerut, reversing a decree of the Subordinate Judge.

Suit for declaration of right

The material facts appear from the judgment.

Jogendra Nath Chaudri and Ghulam Mujtabay for the
appellant.

Muhammad Ishaq, for the respondents.

The judgment of the Court was delivered by

Stanley, C.J. — This appeal arises under the following
circumstances. The defendant Karam AH Khan had two
wives, namely, Musammat Bhuri and Musammat Nannhi Jan.
Musammat Nannhi Jan on the 4th of August, 1905, instituted
a suit against her husband for the recovery of her dower, and
on the 24th of Nove.nber, 1905, obtained a decree. On the 2nd
of Au^UrJt, 1903, that is, two days before the institution of
Nannhi Jan's suit, Karam AH Khan transferred to his wife
Musammat Bhuri certain property ostensibly in satisfaction of a
portion of her dower debt. Musammat Nannhi Jan proceeded
to execute her decree and attached the property which was
transferred to Musammat Bhuri. Thereupon Musammat Bhuri
filed an objection, but her objection was disallowed, and
thereupon she instituted the suit out of which this appeal has
arisen under section 283 of the Code of Civil Procedure.

The first court dismissed the suit, but upon appeal the
learned District Judge reversed the decision of the court below
and decreed the plaintiff's claim.

The main question which has been discussed before us is
whether or not the learned District Judge rightly laid the
burden of proof on the defendant Musammat Nannhi Jan.
According to his judgment he found, in agreement with the
court below, that the oral evidence was valu»iless, and held
that the decision of the case turned on the amount of value to
be placed upon the dee I of sale in favour of Musammat Bhuri.
Then he says : " The burden of proof was upon the defendant-
respondent Musammat Nannhi Jan to prove that the deeil had
been executed fictitiously and collusively. She did absolutely
nothing to satisfy this burden." And later on he observes: —
" Musammat Nannhi Jan having absolutely failed to discharge



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VOL. v.]



HIGh COCRT.



603



the burden of proof on her to show that the sale-deed
was executed fraudulently, fictitiously and collusively, I find
that the deed of sale in question is a genuine document.''
It is contended that the learned District Judge regarded
th3 cisa fro.Ti an e.itirely wrong stand-point an 1 that the
trial of the case was wholly unsatisfactory. The important
fact to bear in mind is that Musammat Bhuri filed an objection
to the attachment and to the sale of the property which had
been transferred to her and that her objection had been dis-
allowed. In consequence of this it was necessary for her to
institute the suit It appears to us to be well settled, so far
at all events as this Court is concerned that a plaintiff comuig
into Court under such circumstances is bound to lay before
the Court some evidence to satisfy the Court that the document
under which she claims represents a bona fide and genuine
transaction, and that the burden does not lie upon the defend-
ant in the first instance to give evidence in proof of the
fraudulent and collusive nature of such document. The learned
District Judge appears to us to have laid the burden of proof
upon the wrong party. In the case of Julshi Rai v. Ram Das{ * )
Straight and Tyrrell, J J., held that under similar circumstances
the burden rested upon the plaintiffs who were impeaching the
disallowance of their objection filed in the execution depart-
ment to establish by clear and satisfactory proof that the pro-
perty attached was their property at the date of the attachment
and not the property of the judgment-debtor. This decision
was followed in A/sal Begam v.Muhammad Obaidat-ullah Khan
(*), and also in the case oiRavi Nath v. Bindraban (*). It also
has the support of the case of Govind Atmaram v. Santai{}\
which is a case on all fours with the case before us. In that
case Sargent, C. J. observes : — " The defendant had obtained
an order maintaining his attachment, and it was incumbent
upon the plaintiff" who impugns that order by the present suit
to prove her case. For this purpose it would be necessary for
the plaintiff" to prove the payment of the purchase money and
that she had been since in possession." These cases establish
the proposition that a party intervening, as the plaintiff did
in this case, in the execution department and failing in his
(I) [1887] A. W. xN., 71. (2) [1899] A. W. N., 22a

(3) [1896] I. L. R., 18 All, 369. (4) [1887] I. L. R., 12 Bom., 27a



Civil

1908.

Nannhi Jan

Bhuri.
Stanley, C /,



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Civil.

1908.

Nannhi Jan

V.

Bhuri.
Stanley, C. J.



objections to an attachment and consequently being obliged
to bring a suit under section 283 must give /r/w4/f?a> evidence
to establish the genuineness of the document upon ^hich he
relies. One case was quoted to us in which a different view
was taken. That was the case of Suba Bibi v. Balgobind
Das{}), In that case Straight and Brodhurst, JJ., laid the
burden upon the defendant This decision loses weight from
the fact that in the later case Straight, J., resiled from
the position which he took up in it and took part in the
decision of the case of Rum Nath v. Bindraban, which we
have cited. Now the learned District Judge has considered
the evidence from an entirely wrong standpoint, and it is
impossible for us to accept his conclusion on the question
whether the sale to the plaintiff was a real transaction or not,
in view of the course adopted at the trial. We therefore, as
was done in Govind Atma^am v. Santaiy set aside the decree
and remand the case to the lower appellate court for re-trial.
We accordingly remand the case with directions that it be
replaced in the file of pending appeals in its proper number
and be disposed of on the merits, regard being had to the
directions which we have given above. The costs here and
hitherto will abide the event.

Appeal decreed, cause remanded.
(I) [1886] I. L. R , 8 All, 178



Civil.

1908.

March 14.

Richards, J.



KHAIRATl

versus

BANNI BEGAM.*

Transfer of Property Act (IV of 1882), section 83— Parties adverse

claimants, whether may be joined— Suit for sale.

Adverse claimants ought not to be made parties to a mortgage
suit for the purpose of litigating their titles, and that the only pro-
per parties to such a suit are persons interested in the equity of
redemption. Jaggeswar Dutt, v. Bhutan Mohan Mitra, I. L, R.,
33 Cal., 425, followed.

Second appeal against the decree of the Subordinate
Judge of Moradabad, confirming a decree of the Munsif.

Suit for declaration of right.

♦ S. A. No. 23 of 1907.



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Vol v.] High coUkt. 605

The material facts appear from the judgment.
The Courts below decreed the suit.
Defendant appealed.

Gokul Prasad (for whom Jang Bahadur Lal\ for the
appellant.

The respondent was not represented.
The following judgment was delivered by

Richards, J. — Khairati, defendant in the present suit,
brought a suit on the 29th August, 1904, upon foot of a mort-
gage, dated the loth December, 1895, whereby Intizam Begam



Online LibraryGreat Britain. Privy Council. Judicial CommitteeAllahabad law journal → online text (page 57 of 79)