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(1) I. L. Bm 10 AUm 358,



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Qad«r.



ia& THE OUDH CASES. IVou VH.

3^^j^^ j^ privacy exists in India' and in the North- West Proyinces,
ghft^adA under certain conditions^ and is not nnreas<mable and that a

Him u$Bad sobstantial interferem^ with such a right, where it exists, if
without the consent or acquiescence of the owner of the domin-
ant tenement, affords such owner good cause of action. He
appears to have been distinctly of opinion that the fact that
the house of the parties are separated by a public thoroughfare
did not prevent the existence of a custom of privacy which
oould be enforced. I.see^no sufficient reason for disagreeing
with that view. There is nothingfivague ;or indefinite in the
custom which the respondent set up and which the lower
appellate Court found to be proved in the 'present case and I
do not think thatdt is so unreasonable or so opposed to public
policy that it should not be enforced. I would therefore dismiss
the appeal with costs.

Chamieb, a. J. C. — I agree.



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Vol. Vn.] THE OUDH CASES. 129:

FIRST CIVIL APPEAL, No. 64 Of 1902. ' ^.



Be/ore Atr^ Ghamier. • ^

f . Thakue Shbo Narain Singh CPZainit/; v. Thakur Sheo* 1904;
It A's ^UHQB wd oihers (Defendants). / Jan, 5.

< Pre-emption^ suit for — Corsharers if subdivision^ right of
priority, amonff^Helationship with vendor-^Oudh Lauss Aciy'^

#i a, Clauses (1) and (2). .

t ■> I III

«..-.. - ...

. !rhe plaintiffs cmd one ^ brought separate suits for pre*emption in respect
x>t a certain yillaige which was diyided into two mahals, viz^y mabal .inusta^il
#hlch was an imperfect pattidari aad mahal ihtimtUi which was a pure
cteindari mahal. Ip the mahal mnstaqil there were two pattis, the plaintifb
haying a share in the one and B in the other. . B was related to the yendors,'
but there was no proof that the plaintiffs were in anj way related to them.

Iteldy that ^he patti in which the plaintiffs had a share was a sub-
ctmsion of thie mahal within the meaning of clause (1) s. S of the Oudh
Laws Act, that the plaintiffs had a right of pre-emption superior to that •
«f j9 in respect of that mahal and that under clause (2) of the section B had a
better right than they in respect of the ihtimali mabal,

: dauae (1) 8. t of the Oudh Laws Act means that amongst co-sharera
in the sub-dfyisipn wha are related to the yendor or mortgagor priority is to be
d9t6rmlned by nearness of relationship at^d that co-sharers in the sub-division
wjio are not so related can claim under this clause but after those who are
related, thus,— nearly related — less nearly related— not related,

EoR Appbllant. — Mr. E. Manuel.

For Respondents. — M. Mohammad Nasim.

CHAifiBR, A. J. C, — ^This is an appeal by one of the plaint-
iffs in a snit for pre-emption. The facts are easily stated.
On April 19th 1900 defendants 2, 3, and 4 sold all their -
rights in several villages to defendant 1 who is a stranger
for a lump sum of Rs, 50,000, Three suits for pre-
emption were instituted. In one suit Sheo Narain, Ram
Ghulam and Sheo Mangal, whom I will refer to ns the
plaintiffs, claimed pre-emption of the share of defendants

• * Against the decree of Pandit Durga Datt Joalii, Subordinate Judge, Rae
Ba#ein dated llth March 1.803.



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130



THE OUDH CASES.



[Vol. VII.



I'hakur

8heo Harain

BiDgh.

■ V.
Thakur
Sheodat
8ingh and



9ingt
cm



lers.



^, "3, and 4 in Kaithoal. In the second fiuit Bajrang Bahadur
Singh who is one of the respondents in the connected appeal
(No. 51) claimed pre-emption of the share in Kaithoal and of
shares in two other villages Sarai Manik and Sheonathpnr. In
the third snit Bishnath Singh claimed pre-emption of a fourth
willage Cbitanna. The three suits were tried together and
:the Subordinate Judge found that the right of Bajrang Baha-
•dur Singh to pre-empt the shares in Eaithoul was superior to
that of the plaintiffs and that Bishnath Singh was entitled to pre-
emption of Chitanna. Therefore the suits of Bajrang Bahadur
Singh and Bishnath Singh were decreed and the plainiiSs'
suit was dismissed. This is an appeal in the suit brought by
the plaintiff and the connected appeal arises out of the suit .
brought by Bajrang Bahadur Singh. Both appeals relate to
the share in Kaithoul only.

The questions to be decided are whether the pre-emptive
right of the plaintiffs is superior to that of Bajrang Bahadur
Singh and if so on what terms they are entitled to pre-empt.

Eaithoul is divided into two mahals, m., mahal mtistagil
which is an imperfect pattidari and mahal ihtimali which is a
.pure zemindari mahal. The khewats on the record show that
iin the mahal mustaqil there are two pattis known by the
names of Ishri Bakhsh and Sheo Ghulam Bai. Patti Ishri
iBakhsh is shown as equival^it to a 5 as. 4 p. share the revenue
of which is Bs. 666-11-0 and the divided area 315 bighas 14
'^biswas. Patti Sheo Ghulam Eai is shown as equivalent to a
10 as. 8 p. share the revenue of which is Bs. 1,333-5-0 and
the divided area 625 bighas 12 biswas 2 biswansis. The
amount of land shown as shamilat deh is 2655 bighas 16 biswas
6 biswansis. The plaintiffs have a share in Patti Ishri Bakhsh
-wiiile Bajrang Bahadur Singh has a share in Patti Sheo
Ohulam Bai only. On the latter's behalf it is contended that
the fact that so large an area has been left as shamilat deh
indicates that the mahal has not really been sub-divided and that
the so-called pattis are merely shares in an undivided mahaK
I cannot accept this contention. The village is situated on the



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Vol. VU.]



THE OUDH CASES.



13r



bank of a river. Probably the greater part o£ it is waste land
and there is nothing surprising in the disproportion between the
divided and the undivided areas. I hold that Patti Ishri Bakhsh
Singh is a sub-division of the mustaqil mahal within the
meaning of clause 1 of s. 9 of the Oudh Laws Act.

Bajrang Bahadur Singh is related to the vendors but theie-
is no proof that the plaintiffs are in any way related to them.
On the ground of relationship it is contended that Bajrang*
Bahadur Singh has a better right than the plaintiffs and the
Court below so decided, but it did not consider whether the
plaintiffs had a better right as co-sharers of a sub-division of
the tenure. Bitherto I believe it has always been supposed'
that a co-sharer in a sub-division of a mahal who is not related
to the vendor has a better right of pre-emption than a co-sharer
of the whole mahal: who is related to the vendor, and it i»
admitted that this view has been acted upon in a large number
of cases, but it has been contended before me in the present
case that a co-sharer who ia not related to the vendor or mort -
gagor cannot claim under the first and second clauses of s. 9
of the Oudh Laws Act. The first clause gives the right of pre-
emption to ^^ co-sharers of the sub-division (if any) of the
tenure in which the property i» comprised in order of their
relationtkip to the vendor,'^ and the second clause gives the
right to **■ co-sharers of the whole mahal in the same order^*
(ti^e italics are mine). If the contention put forward on behalf
of Ba jrang Bahadur Singh in the present case is correct, then co-
sharers in the same subnlivision as the vendor who are not related*
to him are on the same footing as members of the village commu-
nity who come in under the third clause. In this view the section
provides a most incomplete code for determining the right of
pre-emption, and lots would have to be drawn in a very large
number of cases. It is urged that the construction of clauses
(1) and (2) which has hitherto prevailed assumes that the words
if any should be understood after the word relationship in
clause (1) and that no such assumption should be
made for the Legislature »has been careful to insert the



Thakor

Sheo Karaite

Singb.

Tbakur
Sheodat
Singb and



llngb
otb<



lera.



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132



THE OUDfl CASES.



[Vol, VII*;



Thakar

Sheb Narain

* Singl).

r.

Tliaknr

Sheodat

Singh and



Yfords if ani/ in the earlier part oC the claose and this
shows that these words were designedly omitted after the
word relationship. It may be that the words in the order of^
their relationship were intended to mean in the order ef their
relationship if any or it may be, as was suggested in the course
oE tl>e argument, that the Legislature assumed that we are all
ultimately descended from a common ancestor. For my part
lam content with the view which has hitherto prev$il«<f»
I think that the clause means that amongst co-sharers in tb^
aub-division who are related to the render or mortgagor priority
is to be determined by nearness of relationship and that ock,
»harers in the sub-division who are not so related can eiaiB;
under this clause but after those who are related, thuSy-^^^tttarly'
related — less nearly related — not related. So oonstmed the*
section lays down a fairly complete code which has in practice'
worked well. If it is construed in the manner now suggest^
ed, strenuous efiEorts will be made to establish relationship witli;
the vendor or mortgagor, however remote or difficult to proTOt^
in order, to avoid a conflict with those who are members of w
village community. In my opinion the construction hitfaertot
placed upon the section is correct and I hold thitt the>
plaintiffs have a right of pre-emption superior to tkat oC
Bajrang Bahadur Singh. It remains to decide upon wha4
terms the plaintiffs are entitled tQ exercise their, right* The.
Court below has found that the market value of the vendors':
share in both the mustaqil and ihtimali mahals is Rs. 9583,
The correctness of this figure was challenged by Mr. Manuei
on behalf of the plaintiffs but at the dose of the arguments he.
stated that he was prepared to take a decree for pre-emption,
upon payment of Rs. 9583. But in my opinion the plaintiffs
have no right to pre-empt the vendors' share in the ihtimali
mahal. It is a pure zemindari mahal with no kind of sub-divi-
sion. The plaintiffs cannot claim under clause (1) of s. 9 in res-
pect of this mahal, and under clause (2) Bajrang Bahadur Singt),
has a better right than they have because he is related to the
vendors. Prima Jacie therefore the plaintiffs should be allowe4
to pre-empt the share in the mustaqil mahal upon payment of



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V:oi. TII.j



THE OUDH CASBS.



lair



sometfaing lesff than lU. 9588 but thej haye giTon no eridence
npon'which I can determine the amount by which thissnm fthonld
be reduced and they cannot be allowed to adduce further evidence
at this stage, nor was I asked to admit further evidence. The
plainti& can only have a decree for pre-emption on payment
of the above sum which the vendors and Bajrang Bahadur
have accepted. I say that they have accepted it because
Rs. 9583 in the sum upon payment of which Bajrang Bahadur
Singh has been allowed to pre-empt the share in question and
it is the sum upon payment of which the plaintiffs have been .
allowed to pre-empt the share in case Bajrang Bahadur Singh
does not exercise his right, and neitlier the vendors nor
Bajrang Bahadur Singh have appealed.

For these reaisons I aocept this appeal, set aside the decree
of the Court belo.w and pass a decree in favour of the plaintiflb.
for possesidon of the share in mahal mustaqU in Kaithonl upon,
payment within 3 months from this date of Rs. 9583. In case;
ef payment the plaintiffs will get their costs in both Conrfai.;
If payment is not so made tlie suit will stand dismissed vnih
dosts in both Conrts. The vendors will neither pay nor receive
iuj costs in •ither event



Thakor

Bbeo Naraiii

Slogfa.

V.

Thakor

Sheodat

Bingh and

others.



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134 THE OUDH CASES. [VouVII

MISCELLANEOUS APPEAL, No. 8 OF 1904/



Before Mr. Chamier.



1904. Bajkang Singh (Defendant) v. Daulat Singh {Plaintif).

Apbil 21.

Miil ratoaj-i^m a$ evidence of custom^ admUnbilitt/ of



A miil rawaj'i-am duly prepared and attested is adminlble in eTidenee an
an oiBcial record of a custom.



Fpi^ Appellant. — ^Mr. B. C. Dutt.
For Rbspondbnt. — B. Basdeo Lai.

CMamibb, a. J. C. — ^The claim of the plaintiffs, who are
the respondents here, rested mainly upon an allegation that
by a custom obtaining in their family daughters and danghters*^
sons are exdaded from inheritance. The defendant, who is the'
appellant here, denied this allegation. The question thus raided
was the subject of the first issue. The Munsif found that the
alleged custom was not proved and dismissed the suit without
recording findings upon the remaining issues. Upon appeal
by the plaintiffs the Subordinate Judge held that the custom
was proved by an extract from the file of the rawaj^-am and
by the oral evidence adduced by the plaintiffs. He set aside
the Munsiff's decree and remanded the case under s. 562 of the
Code of Civil Procedure tor, as he says, " trial on the merits.*'
In the view which he took be should I think have remitted
issues under s. 566 instead of making an order of remand under
s. 562, but in this Court no objection has been taken to the
form of the order. Several points are taken in the memoran-
dum of appeal filed in this Court but the only point pressed
by the learned counsel for the appellant is that the extract
from the file of the rawaj4'^m ought not to have been admitted
in evidence, because the entries therein represent the private



* Against the order of Pandit Bakht Narain, Subordinate Judge, Fyiabttd,
dated 8rd November 1903, reversing the order of B. Kali Chanin Bose. Munsif,
Fyzabad. dated 11th August 1902,



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Yot. Yll.] THE OUDH cases; 135

Opinions'of the lambardars aind other proprietors who signed '^'^5^
the document. The learned connsel relies upon the well-known -v*^.

decision o£ Their Lordships of the Privy Oonncil in the case of
Uman Farshad v. Gandharp Singh (1). In that case what
appeared to be an official record of a cnstom and had been
admitted in evidence as such was found to be the concoction of >
a person who was interested in proving that such a custom
was in force. Their Lordships said that such a document was
worse thim useless, it was absolutely misleading. It is con-
tended that these observations apply to the ^^ mid^ rawaj-i-am^^
which was prepared for several parganas in the Fyzabad -
district.

The mUl rawaj4^m contains as its name denotes a recorcl
of general customs. It is divided into four parts (1) customs
regarding inheritance and succession (2) customs regarding
accretion by alluvion (3) irrigation from rain, streams, jhils,
eto. and (4) remuneration of village servants (Fyzabad Settle-
ment Report, paragraph 1710)^

In order to elicit information concerning customs regard-
ing inheritance and succession the Settlement Officer drew up
a number of questions which were laid before the leading men
of each tribe or class who signed their names to the answers.
After such further inquiry as the Settlement Officer choosy
to make the signatures were attested by the Settlement Officer
or by an official acting under his orders and these questions
and answers form the record of the customs ascertained/
There is a separate set of questions and answers for each tribe
or class in the pargana. A separate misl ratoaj-t'-atn was
prepared for eight difEerent parganas and formed part of the
settlement record. In the remaining parganas three of which
were subsequently transferred to the Sultanpur district i,
wajib-uUarz was prepared for each mouzah or mahal. The
paragraph of a toajib-ul'arz which dealt with customs regarding
inheritance and succession was as a rule prepared upon inform-
ation supplied by the proprietors of the mouzah. The extent

(1) I. L. R., 15 Calc, 20.



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186 THE OUDH JCASBS: [Vol. VU

^2£k? ^ which the aocnrae j of snoh informaiioo was tested 4d^>etidecl
iiftiiU%tiMrft ^^S^'^y upon the energy of the settlement officials. In a large
number of instances in other districts if not in the Fyzabad
district also the information so acquired ^was I believe accepted
M oorrect and recorded without further inquiry. It would
seem that particulars r^arding customs recorded in a mUl
rauMif4-am are more like! j to be reliable than similar parti<»
jeulars in a wajUnul^rz for the answers recorded .in the mid
renoaJH'<im are signed and approved by a number of the lead^
ing men in each class in the pargana. Such answers cannot
in the absence ot proof be regarded asconooctic«8 by interested
persons. As a matter of fact both before and after the decisions
of their Lordships in the case mentioned above the records of
the rawaj'i'^Lfn have been admitted in evidence in .hundreds
of cases in the Fyzabad district as official records of the customs
therein set forth* In fact they have been treated as being
on the same footing as vxijxb^UarzeB duly prepared. For
example in Second Civil Apjpeal No. 212 of 1901 Mr. Spankie
declined to hold thajb a misl rawaj4^m could not by itself be
'sufficient evidence of a custom therein set out. He applied
^e same rule to records of ratoa;-t-am as their Lordships of
the Privy Council applied to duly prepared toajib^l-arzes
tiamely, that they are of more or less value according to cir-
cumstances.

It is too late now to contend that a mUl rawaj^i-am duly
prepared and attested is not admissible in evidence as an official
record of a custom. I therefore reject the contention that the
extract from the ratoaj-i-am produced in this case abould not
have been admitted in evidence. The value to be aitacbed to
jkhe rauxy-t-am was admittedly a matter for the determination
of the Subordinate Judge. The appeal fails and is dismissed
with costs.



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Vol. VII.] THE OUDH GASES. W

SECOND CIVIL APPEAL, No- 338 OF 1902. *



B^0r€ Mr* Macleod and Mr, Chamier*



Raja Ram (Plaintiff) v. Shbopal Singh (Defendant). 1903.

Dec 15.

Foreclomre^ suit for — Decree for foreclosure, altering before
fnakinq absolute — Decree for for^losure in respect of part ofmort^
gaaei property subsequent to order absolute in respect of the^
remaining part — Transfer of Property Act, s. 87 — Ea:eculion
^deeree-^ode of CivU Procedure, s. 244 — Mortgage.



Tlie defendant «sd hti £atkor who were tiving in anian owned between the»
^ $ |K ihare which the father in 1892 mortgaged to the plaintiff by way ol
conditional sale. The plaintiff sued for forecloBore and obtained a decree
misi in Febraary 1897. To that suit the defendant was not made a party. Be-
fore the decree could be made absolute his father dfed and the pUintiff^s ap-
plication for an order absolute was made against the defendant who objected
that his interest in the property should be excluded from the operation of the
decree and the objection was .allowed by the Munsif and an order was passed
■uUdng the foreclosure absolute in respect of the fatber^s shai-e otily. The
piaintitf the« sued for a declaration that the defendant was bound by the furc*
closure decree passed against his father and that that decree should be
■uuIq absolute as regards the defendant's interests That suit was finally dis^
missed. The plaintiff brought the present suit for half the amount due upon
the mortgage at the date of the previous decree and in default of payment
Coreelosure of the defeiidant*s right to redeem his interest in the property.

Seld^ that the suit was not barred by section 244 CiWl Procedure Code,
so far as regarded the questions whether the mortgage made by his father was
binding upon the defendant and whether the defendant was bound to pay his
father's debt out of any family property which had passed to him by «urTivof>
•hip ; but that having regard to the provisions of section 87 of the Transfer of
Property Act, the foi'eclosure of the father's interest having been made absolute
on account of the non*>payment of the whole debt-, the suit was not maintain-
able.

Against the decree of W. P. Kirton, Esq., Offg. District Jutlj^c, Hardoi,
dated 24th June 1902 reversing the decree of Moulvi Mohammed A.ghar, Sub»
ordinate Judge, Unao, dated 22nd February 1902.



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138 THE OUDH CASES. [Vol. VIL

Baja Ram f'oR APPELLANTS : — Mirza Samiullah Beg.

^SiSgh? ^^^ RasPONDBNTS :— Babu Basdeo Lai.

Chamier, a. J. C. — ^The defendant and his father who
were living in union owned between them a 6 pies share in
manzah Eaimpnr. The father in June 1892 mortgaged this
share to the plaintifiE bj way of conditional sale to secure the
repayment of Rs. 300 and interest at 2 per cent, per mensem
to be compounded every six months in case of non-payment.
In the deed the mortgagor represented himself as sole owner
of the share. The plaintiff sued for foreclosure and obtained a
decree nm in February 1897. To that suit the defendant was
not made a party. Before the decree could be made absolute
his* father died and the plaintiff's application for an order
absolute was made against the defendant as legal representa-
tive of his father. The defendant objected that his interest
in the property should be excluded from the operation of
the decree and the Munsif allowed the objection on the
ground that the defendant should have been impleaded in the
suit and that not having been impleaded his interest should not
be affected by the decree. Accordingly an order was passed
making the foreclosure absolute in respect of one-half only of
the 6 pies share.

The plaintiff then brought a suit for a declaration that the
defendant was bound by the foreclosure decree passed against
his father and that his interestun the property which had been
^^ released'' by the Munsif had become the property of the
plaintiff, and that the foreclosure decree should be made
absolute as regards that interest. That suit came before this
Court in Second Appeal when it was held by Mr. Spankie that
the question whether the foreclosure decree should have been
made absolute was one arising under jsection 244, Civil Proce-
dure Code, and could not be discussed in a separate suit, but
that a trial of the question whether the defendant was bound
by the mortgage and by the foreclosure decree was not barred
by section 244 as such a question could not be decided by the
Court executing the decree. In the result that suit was die-



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Vol. VIL] THE OUDH CASES. ia»

missed on the ground that the plaintifiE was entitled to seek B»j»^R»w
either a decree for foreclosure or for sale^ of the defendant's Shoopal
interest in the property. In passing I may observe that that
was not a decision that a suit for foreclosnre or for sale would
succeed.

In the present suit the plaintifiE claims a decree for the
payment of one-half of the amount due upon the mortgage at
the date of the previous decree with further interest up to date
and in default of payment foreclosure of the defendant's right
to redeem his interest in the property. The defence is that
inasmuch as an order absolute for foreclosure was passed in
the suit upon the mortgage the debt must under the penulti*
mate clause of section 87 of the Transfer of Property Act be
deemed to have been discharged and that the suit is barred
by section 244 of the Code of Civil Procedure.

Taking the last point first I think it is clear that the suit
is not barred by section 244, Civil Procedure Code, so far as
regards the questions whether the mortgage made by his father
is binding upon the defendant and whether the defendant is
bound to pay his fatj|0r's debt out of any family property
which has passed to him by survivorship. The only question
which is concluded by the order of the Munsif is whether the
decree for foreclosure should have covered the defendant's
interest in the property. It must be taken that his interest
was rightly excluded as the Munsif 's order was not appealed
agliinst.

It has been found and it is not now disputed that the debt
incurred by the defendant's father was one which the defend-
ant as a son is bound to pay out of any family property tliat
has passed to him, but in my opinion the present suit must
fail. I do not think that the plaintifiE has any right to say that
one-half of the debt remained undischarged after the foreclo-
sure decree was made absolute. His learned pleader relies upon
the analogy between this case and cases in which when family pro-
perty has been sold in execution of a decree against a father alone



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