The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

Fob Appellant:— M. Muhammad Nasim.

Chamieb, a. J, C. — The question for decision at this stage
is whether the court-fee paid upon the memorandum of appeal

♦ Against the order of M. Muhammad Taj-ud-din, Subordinate Judge, Biswan
dated 17th December 1903.



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Vol. VII.] THE OUDH CASfiS. 158

is sufficient The decision will affect a large number o£ cases.
This was a suit by the respondent for redemption of certain
zemindari property in respect of which four documents are
alleged to have been executed, namely : —

(1) a deed dated December 16th 1892 whereby the pro-
perty was mortgaged for Rs. 21,000 —

(2) a deed dated August 8th 1893 stated therein to be a
deed of further charge for Rs. 642. The executant promises
to pay this sum with interest along with the sum secured by
the first deed and agrees that the property shall not be redeemed
except upon payment of the further advance and interest
thereon as well as the sum secured by the first deed. It is sti-
pulated that all the conditions of the first deed shall be deemed
to apply to this deed also—

(3) a deed dated August 7th, 1894, for a sum of Es.
2,000 similar in all respects to the second deed except that it
is not in so many words stated to be a deed of further charge —

(4) a deed dated October 1st, 1894, for a sum of Rs. 2,000
similar in all respects to the 3rd deed.

The respondent paid on his plaint a court-fee of Rs. 895
computing it upon the sum iotal of the principal amounts of
the four deeds and the appelknt who has appealed against the
whole decree has paid the satne fee on his memorandum of
appeal. The Stamp Reporter suggests that the suit embraces
four ^' distinct subjects" within the meaning of section 17 of
the Court Fees Act and therefore the plaint and the memoran-
dum of appeal are each chargeable with the aggregate amount
of the fees which would have been payable if there had been
four separate suits one in respect of each of such subjects.
He Jias referred to the cases of Parshotam Lai v. Lachman
Das (1), a reference under the Court Fees Act and the decision
thereon in I. L. R., 16 Allahabad, 401 and to five cases
in this Court, namely, Imtiaz-un-nisia v. Chandu Lai (2),



Thakur

Jawabir

Singh.

r.

Thakur

Balwant

Singh.



(1) I. L. B., 9 AU.; 252.



(2) 8. C. A., No. 180 of 1902.



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154 THB OUME CASES. [Vol. Vn.

j^w^r jBAo^dn Dm v- Mathra, Sw^ (1^ i^«i*a SoiJbA v. Jawalir

Stogh. StyrA (2), Baghubans Euar v. 22aunaA -Alt (3) and Pathku

Thlkui ▼• Pc^Tmeshut (4). In the case reported in I. Li R^ 16

Balwant Allahabad, 401, Barkitt J, held that the worda " two or more
Singh,

distinct subjects" in section 17 of the Court Fees Act are

equivalent to ^ two or more distinct causes of action," that
section 17 is applicable only to suits in which two or more dis-
tinct causes of action hav^ been; joined under section 4& of the
Code of Civil Procedures The same view seems to have keeft
taken by Edge, C. J., and ddfield J., in the earlier AUahabaA
case cited above and by the Madras Hij^ Ceort ia Konam
Panikar v» Kavunakara (5) and Rmna Varma t. Ketdar (6).
I acted upon this view ia Iiniie»^nfmUta v. Ckomdu Lai (1)
which was an appeal by the defendants in a suit by the hoUer
of two deeds of mortgage afiEecting the same property for
recovery of the amount due on those deeds by sale of the mort-
gaged property. The case of RagKvhans Koer v. Raunak AU
(3) is useful only as showing that the plaintifiE suing for the
recovery by sale of the property of sums due to her upon four
different: mortgage deeds afiEecting the same pn^erty paid
court-fees separately upon each deed. It seems to be* now a
settled rule that a mortgagee suing for. the recovery by sale of
mortgaged property of sums due upon two or more different
deeds must pay court-fees upon each deed separately because
each deed gives the mortgagee a separate cause of action (see
Sundar Singh v. Bhotu (8) ) although the mortgagee may
subject himself to certain disabilities if he fails to sue upon all
the deeds together (Dorasami v. Venkatasethat/yar (9\ Sri
Gopal V. Pirthi Singh (10) ).

The Stamp Reporter has assumed that from the rule just
stated it follows that a mortgagor seeking to redeem property
in respect of which several deeds have been executed must pay
court-fees in respect of each deed separately. For reasons

(1) F. 0. A., No. 7 of 190S. (2) F. C. A., No. 79 of 1908.

(3) F. 0. A., No. 31 of 1904. (4) S. C. A., No. 68 of 1908.

(6) I. L. B., 16 Mad., 328. (6) I. L. R., 16 Mad., 415.

(7) S. 0. A., No. 180 of 1902. (8) I. L. B., 20 All., 322.
(9) I. L. B., 25 Mad., 108. (10) I. L. B., 24 All., 429.



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Vol. VIL] THE OUDH 0ASB8. 155

wbich I will dtate fireaently X think that this vie^ is efrroneousw Jawah^
I mnst first notice the contention advanced hy the learned s^ngb.
advocate for the appellant. He did not concern himself to Thakur
dispnte thd proposition that in a redemption dnit a mortgagor ^Jlb"*^
mast pay eowrt-fees separately in respect of each deed affecting
tiie property. He said that assuming that that was the general
role it did not apply to Ike present case because the second^
third and fovrth deeds were not deeds of farther charge at all
kot only KatU deeds whereby redemption was postponed till
the additional advances were repaid. If his constraction of
the deed is correct no ceart-fee ai all was piayable in respect
of the sams covenanted to be paid by the second, third and
f<rartk deeds as those some ceold not be regarded as parts of
^^ the ptincipal sam secored by the instrament of mortgage.''
Bat I cannot accept kis contention. The second deed is ex-
pressly stated to be a deed of farther charge so that hia arga-
ment fails as to that deed, and I think that the effect of the
third and fbarth deeds was to create farther charges apon the
property and that any doubt that there might have been apon the
qaestion is removed by the provision that all the conditions of
the first deed are to apply to the sabseqoent advances^

The relevant provision in the Court Fees Act is clause ix
of section 7 which runs tiius :—

'* In suits against a mortgagee for the recovery of the
^ property mortgaged, and in suits by a mortgagee toforeclose a
" mortgage,or, where the mortgage is by conditional sale, to
^ have the sale declared absolute — according to the principal
*^ money exptessed to be secured by the instrument of mort-
**gage."

Unless there is something repugnant in the subject or
context words in the singular include the plural, therefore
where there are several Instruments the court^fee must be
paid according to the principal money expressed to be secured
by the different instruments and regard being had to the
principle underlying this clause I should say that the principal
sums should be added together. Then how, if at all, does section
17 affect the question ? According to the now accepted



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156 THE OUDH CASES. [Vol. VH.

JawaWr constmction of that section it applies only where there are two
Singh. or more distinct causes of action. The cause of action in a suit for
Thakur redemption consists of the plaintifiPs title to the property, the
^SirTgh.' fact that a certain amount is payable by the plaintiff and has
been paid by the plaintiff or received by the defendant out of
the profits of the property or has been tendered by the plaintiff
and improperly refused, and the fact that the defendant refuses
to deliver the mortgage deed, if any, and restore the property
if the mortgagee is in possession (see sections 60 and 62 of the
Transfer of Property Act). One of the most important parts
of the cause of action is the wrongful retention of the mort-
gage-deed and of the property by the defendant. One, two
or more deeds may have to be considered in determining the
amount payable by the plaintiff but the cause of action is not
complete until all sums secured by the various deeds have
been paid realized or tendered and therefore I do not under-
stand how each deed can be said to give rise to a separate
cause of action by the mortgagor for redemption. If a mori*
gagee refuses to accept money payable under one of several
deeds affecting an estate that refusal does not give the mort-
gagor a cause of action for redemption because the mortgagor
cannot claim the return of the mortgage deed or recover the
property without paying all that is dUe upon the security of
that property. One speaks of redemption of a mortgage in
the sense of payment of the sum due thereon but strictily
speaking there is no such thing as a suit Eor redemption of a
mortgage. It is the property which is redeemed. Therefore
a suit for redemption is correctly described in the Court
Fees Act as a suit for the recovery of property and it appears
to me that there is only one cause of action, no matter how
many deeds may have to be considered. First Civil Appeal
No. 7 of 1903, First Civil Appeal No. 79 of 1903 and Second
Civil Appeal No. 68 of 1903 were all appeals in suits for
redemption. In all three cases there had been two or more
mortgage deeds and in all three the plaintiff had paid court-
fees on the total of the principal sums. The Courts below had
raised no objection but the Stamp Reporter of this Court



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SiDgb.



Vol. VIL] THE OUDH CASES. 157

objected that court-fees should have been calculated with Thakur
reference to section 17 of the Court Fees Act. In each case the '^6^.'
party concerned made good the supposed deficiency without Thikur
objection but there was no decision by this Court. I do not Baiwant
think that the point has ever been decided by this Court and
so far as I am aware there is no reported decision of any
other Court upon the point. I have come to the conclusion that
the plaintiff in a case like this is sumg upon one cause of
action only, therefore section 17 does not apply and I see no
reason why the principal sums should not be added together
for the purpose of ascertaining the amount upon which the
court-fees are to be pWd.

It is at first sight strange that there should be such a
difference in the amount of court-fees payable by a mortgagor
suing for redemption of property and the amount payable by
a mortgagee suing for recovery of the mortgage money by sale
of that property, but it must be noticed that the relief given
to ijfie mortgagor is limited to the property whereas die mort-
gagee suing for sale may generally proceed, if necessary,
against other property also. Where the mortgagee is limited
to the mortgaged property as in a suit for foreclosure he pays
court-fees only on the principal sum secured*

In my opinion the court-fee upon a plaint in a suit for
redemption or for foreclosure should be calculated upon the
sum total of the principal monies payable under the deeds by
which those monies are secured. In this view the fee paid
upon the plaint in this case was sufficient so also is the fee paid
upon the memorandum of appeal. I would admit the appeal.

RusTOMJi, A. J. C. — I tiie the same view of the^law as my
learned colleague has taken. Redemption of land mortgaged
tinder separate deeds furnishes only one cause of action, there-
fore the court-fees payable must be calculated on the aggre-
gate sum due under all the different deeds, and not on the
separate sums due under each deed. The appeal may be
admitted now.



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158 THE OUDH OASES. [ Vol. VII

FIRST CIVIL APPEAL, No- 36 OF D03.*



Before Mr. Wells.



1904. MusAMMAT MuNA KuEB (Plaintiff) V. Abdhut Singh

May 5. and others (Defendants).



Pre-emption^ suit for-^Hindu tmdovfs right of pre-emption
in respect of property held as widow* s estate as well as under a
will executed by her husband.



Th« plaintiif who was the widow of one P brought a salt for pre-emption
in respect of her hiishand*s share in a village. The sale in dispute took
plaoe on the 15th October 1901 and P died in July 1902. The plaintiff held
not merely the widow's estate in the property of P but also as a devisee under
the will executed by him.

Seldi that the plaintijGE was entitled to a decree for pre-emption.



Fob Apfellants.— ^Babns J7a^o Lai and Chail Behari Lai.

Fob Rbspondbnts. — Mibza Samiulldh Beg.

Wells, 0. J. 0.— This is a suit by the widow of one
Padam Singh for pre-emption of a 5 biswa share in manza
Bhitia and a 2^ biswa share in mauza Jnlaipnr. The sale in *
dispute took place on the 15th October 1901, and Padam
Singh, whose widow the pre-emptor is, died, in July 1902.
The plaintiff holds not merely the widow's estate in the
property of Padam Singh bnt also as a devisee under the
will executed by him.

The Subordinate Judge dismissed the suit holding that
the appellant had no right to pre-empt as she personally
came into possession of Padam Singh's property after the
sale. He has been guided by the following rulings: — Lachmi

* Against the decree of M. Mohammad Afcal Ali, Sabordiaate Judge,
Bitapur, dated 9th March 1903.



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Vol. VII.] THE OUDH CASES. 159

Narain v. Manog Dot (1) and Skeo Narain v. Eira (2). In Musammai
the second case Mahmood, J., explained certain principles with ^^^f.
regard to the right of pre-emption and showed that it would be ^a^a'o^therf.^
absurd to permit one " stranger who had acquired the pre-
emptive right of an original co-sharer after his death to claim
as against another stranger'' who had acquired from
another co-sharer. But the circumstances of the present
case are different and more analogous to the case of Muham^
mad Yumf Alt Khan v. Dal Kuar (3) in which Sheo Narain
V. Hira (2) was referred to and distinguished. I am of opinion
that that case affords us no guidance in the present case, in
which the person claiming to pre-empt is not a stranger who
has acquired a share in the village. I consider, moreover,
whether as heir or devisee of Fadam Singh, not being a
stranger in the village, she had acquired whatever pre-emptive
rights Padam Singh had.

On behalf of the respondents, the case of Jugmohandas
Mangaldas v. Sir Mangaldas Nathuhhoy (4) has been referred
to, as authority for the proposition that the appellant, having
taken under a will, can no longer claim rights which she
would have taken by inheritance. But it appears to me that
it would be highly inequitable to hold that because, by will,
her husband had given her a stronger title that she would
have had in the absence of the will, that is to say, merely
a widow's estate, she is now in the position of a stranger and
debarred from claiming a pre-emptive right. Therefore, dif-
fering from the Subordinate Judge, I hold that she is entitled
to a decree for pre-emption. The learned Subordinate Judge
has further held that, at the time of his death, Padam Singh
had no share in the village Julaipur, having sold it four days
before the execution of the sale-deed now in suit. This
appears to have been a mistake on the part of the Subordinate
Judge. My attention has been drawn to the Settlement khewat
of Julaipur which shows that Padam Singh had a 5 biswa

(1). I. L. R., 7 AU., 291. (2). I. L. B., 7 AU., 636.

(3). I. L. B., 20 AIL, 148. (4). I. L. B., 10 Bom., 628.



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160



THE OUDH OASES.



[Vol. VIL



Mu&ammat

Muna Kuer

r.

Abdhut Singh

and others.



share in that village and by the deed Ex. B 3, on which the
Subordinate Judge has relied, he only parted with a 2^ biswa
share in Jnlaipnr. The plaintiff appellant is therefore entitled
to pre-emption.

The question remains how much is to be paid. Her
pleader has abandoned the 4th ground of appeal and states
that she is willing to pay Rs. 2,100 for the share in Jnlaipur
according to the sale-deed and Bs. 3,150, the market value of
Bbitia fixed by the lower Court, that is, Rs. 5,250 in all. The
pleader for the respondent 4ias not contended that the full
price of Bhitia according to the sale-deed ought to be paid and
the Subordinate Judge has shown satisfactorily that this was
a fictitious price.

I allow the appeal and decree that if the plaintiff-appellant
pay into Court the balance of Rs. 5,250 after deduction of her
costs in both Courts under this decree, within one month from
the date of the preparation of the decree, she shall be put in
possession of the property in suit, otherwise her claim shall
stand dismissed with costs.



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Vol. VIL] THE OUDH CASES. loi

MISCELLANEOUS APPEAL, No. 12 OF 1904.»



Before Mr. WelU and Mr. Chamier.



Mohammad Shahamat Khan and another (ObjeUors) v. 1904.
MusAMMAT AzizuNNissA and another (Applicants). April 22.

Partition, suit for^ Question of title— Dismissal of objection
involving question of title— Appeal— Jurisdiction of Civil Court
- Land Revenue Act of 1901, sections 111 and 112— Decree.

In a partition case the appellant presented a petition in which he set forth
certain objections to the proposed partition, one being that the property was
not partible. The Court of first instance held that the question of title raised
by the appellant had already been determined by a Court of competent juris-
diction and dismissed the petition.

Seldy that the onler of the Court dismissing the petition was not a decree
within the meaning of section 112 of the Land Revenue Act, 1001, and that no
appeal lay to the Court of the Judicial Commissioner. It is only when the
Bevenue Court goes into the merits of the objection that its order dealing with
the objection is appealable as a decree.

For Appellants. — M. Samiullah Beg.

For Respondents. — B. Basdeo Lai.

Wells, 0. J. C. and Chamier, A. J. C. — This is an appeal
against an order of an Assistant Collector in the Rai Bareli
district disallowing the appellants' objections to a proposed
partition. A preliminary objection is taken by the respond-
ents that no appeal lies to this Court against the order of the
Assistant Collector. The appellant Shahamat Khan presented
a petition in which he set forth certain objections to the
proposed partition, one being that the property was not
partible. This objection certainly involved a question of pro-
prietary title within the meaning of s. Ill of the Land
Revenue Act, 1901. If the question had not already
been determind by a Court of competent jurisdiction the
Assistant Collector was bound to adopt one or the other of

* Against the order of B. Kanbaiya Lai, Deputy Collector, Rac Bareli,
dated 3rd February 1D04.



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162



THE ODDH CASES.



[Vol. VII.



Mohammad

Shahamat

Khan

and another

V,

Mnsammat
Azixunnissa
and another.



the courses indicated in s. 111. In his opinion the question
had already been determined by a Court o£ competent juris-
diction and he held that s. Ill did not apply. On behalf of
die appellants it is contended that the case is within the
decision of this Court in Thahir Baldeo Bakhsh v. Thakur
Balbhadr Singh (1) where it was held that an order of an
Assistant Collector disallowing certain objections amounted
to a decree and was appealable under s. 112 of the Act. In
our opinion this case differs materially from the case mentioned.
In that case the Assistant Collector called upon the parties to
produce evidence and adjourned the hearing to another date on
which issues were to be fixed and he expressed his opinion upon
the question raised by the objector. In the present case the
Assistant Collector did nothing of the sort. Ue held that the
question of title raised by the objector had already been
determined by a Court of competent jurisdiction. It seems
to us that this case is much more like the case of Asghar Alt
Shah V. Jhanda Mai (2) where the Assistant Collector held
.that there had been a decision by a competent Court on a
question of title. Mr. Justice Oldfield said in that case : —
" This finding put it out of his power to proceed under the
section, and as a matter of fact he did not proceed under the
section, for he simply gave effect to the former decision and
summarily rejected the plaintiff's objection and ordered the
partition to proceed.'^ The appellants' contention amounts to
this that in every case where an objection is put forward
involving a question of proprietary title an order dismissing
that objection must necessarily be a decree within the mean-
ing of s. 112. We cannot accept this view. It seems to us
that it is only when the Assistant Collector goes into the
merits of the objection that his order dealing with the object-
ion is appealable as a decree. We sustain the preliminary
objection and hold that no appeal lies to this Court. At the
request of the appellants' pleader we return the memorandum
of appeal to the appellants. The appellants must pay the
respondents' costs in this Court.

(1) 6 Oudh Cases, 372. (2) I. L. B., 2 All ; S39.



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V^OL. VII.] THE OUDH CASES. 163

CRIMINAL APPEAL, No. 109 OF 1904.*



Before Mr. Wells and Mr. Chamier,



1904.
DuKHARAN (Prisoner) v. King-Empbror (Opposite Party). May 9,



Gang associated for the purpose of habitually committing
theft belonging tOy evidence necessary to prove o fence of — Indian
Penal Code, s. 401.



The accased who were ocmyioted under s. 401 of the ladian Penal Code
were all members of one family. The aalj evidence against them was that
two of them had been preyionslj convicted under s. 454, Indian Penal Ckxie,
that they had no ostensible means of livelihood, and that during their progress
through a certain district a number of petty thefts were committed within
Tarious distances up to ten miles from their encampments. Ko stolen property
was traced to. their possession and it was not shown that the country through
which the gang passed was free from petty crime when the gang was not
about.

BM^ that the evidence did not establish a charge under s. 401 of the
Indian Penal Code.



For Appbllakt:— J\^oon^.

For Crown :— The Government Pleader.

Wells, 0. J. C. and Chamibr, A. J. C. — ^These are fonr
appeals by Dukharan, Bhikhari, Raghubar and Gopal who
have been convicted under s. 401 of the Indian Penal Code by
the District Magistrate of Unao and sentenced to 5 years
rigorous imprisonment.

The appellants are all Doms, three of them being brothers,
belonging to a small gang of 4 or 5 men, with a few women

♦ Against the order of fa. J. Hoare Esq^ 0. S. Deputy Commissioner,
Unao, dated 29th February 1904.



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1(J4



THE OUDH CASES.



[Vol. VII.



Dukharan
r.
King-
Emperor.



and children who have been wandering abont the Bai Bareli
and Unao Districts. They were in Unao in March, May,
Angnst and November 1903. In March two oE them were
convicted under s. 454, Indian Penal Code, and detained in
prison till August.

The only evidence against the appellants is that they have
no ostensible, means of livelihood and that during their pro-
gress through the Unao district a number o£ petty crimes, which
the District Superintendent o£ Police, posing as an expert
witness, considered to be of the character of crimes usually
committed by a wandering tribe, were committed within
various distances up to ten miles from their encampments.
The gang were always watched by a constable and from four
to eight choukidars. No stolen property was traced to their
possession and in only the one instance noted above were any
of them actually convicted.

The evidence establishing any crime against the appellant
is distinctly weak. We cannot attach much importance to the
expert evidence of the District Superintendent of Police. It
appears to us that in this case a start has been made by assum-
ing, through this evidence, what has to be proved, namely,
that the various petty thefts attributed to the appellants
were committed by a wandering gang. But any one with any
experience of criminal work in this country must be well aware
that such petty offences as have been described are constantly
committed by people of all classes. It has not moreover been
established that the tracts of country referred to were free
from petty crimes when this gang was not about

To establish a charge under s. 401 it is necessary to prove
that the accused belong to a gang associated for the purpose
of habitually committing theft: Now in the present case the
so-called gang appear to be all members of one family. They
are associated and wander about in their ordinary way of life,
and it cannot be said to be proved that the primary purpose
of their association was the commission of theft. In the case



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