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Vol. Vn J



THE OUDH CASES.



165



of Shriram (1) the learned Judges held that in snch a case
habit had to be proved by an aggregate o£ acts. In the present
case no acts at all have been proved but merely circum-
stances which are more or less suspicious.

It appears to us that in a case under s. 400 or 401 of the
Indian Penal Code it should be shown that the persons involved
are not associated or are not likely to be associated together for
any legitimate purpose or in the ordinary way of life, and
that they, or individuals among them or groups of individuals,
have committed several thefts or robberies or dacoities.

We do not consider that the evidence in the present case
establishes a charge under s. 401. We therefore acquit the
appellants and direct their release.
(1) 6 Mad. H. C. Sep., 121.



Dtikbarad

King.
Emperor,



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166 THE OUDH CASES. £VoL. VIL

SECOND CIVIL APPEAL, No. 279 OF 1902.*



Before Mr, Ruitomji and Mr. Chamier.



1904. MusAMMAT Jhapean {Plaintiff) v. Ram Datal (Defendant).

May 27.

LimitaHon Ad^ scJu u, art 64 — Ace(mnt $tated.



When an acoonnt shewing reciprocal demands between two parties is made
np, a balance is struck, and the debtor signs an acknowledgment that the
balance is due, there is an account stated within the meaning of art. 64
schedule ii of the Indian LimitatioB Act which evidences a new contract and
upon which a suit maj be brought.



For Appellant. — B. Batdeo Lai and B. Ithwari PersKad.

For Bbspondbnt. — Mr. St. G. H. S. Jachm and B.

Bhairon Pershad.

Chahier, a. J. C. — ^I referred this appeal to a Bench of
two Judges because I thought that it would be necessary to
decide whether a mere acknowledgment o^a debt could be an
account stated within the meaning of art. 64 of schedule ii of
the Indian Limitation Act or whether it was necessary to show
that reciprocal demands had been set o£E against each other
and a balance struck, and also because I was disposed to think
that there was a conflict between the viewsiexpressed by Messrs.
Deas and Spankie in JawaMr Singh v. Lachman Das (1) and
the judgment of Burkitt, J. and myself in Ganga Prasad v.
Ram Dayal (2).

Having examined the judgments again and heard counsel
further I am satisfied that there is no conflict between the two
cases just mentioned. All that Messrs. Deas and Spankie

* Against the decree of W. R. G. Moir Esq., District Judge, Sitapur, dated
6th May 1902, modifyiDg the decree of Pandit Tribhuvan Kath Sopori, Sub-
ordinate Judge, Sitapur, dated 6th October 1899.

(1) 3. 0. C. 195. (2) I. L. R., 23 All., 602



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Vol. VII.] THE OUDH CASES. 167

decided was that a mere acknowledgment of a debt signed by ^u*"?^*
the debtor Was not evidence of a new contract to pay the debt. «*•

That was one of the points decided by Bnrkitt, J. and myself. *™ *^
We decided also that snch an acknowledgment was not an
account stated within the meaning of art. 64 of the second
schedule to the Limitation Act, bnt Messrs. Deas and Spankie
did not decide that point.

Having heard the arguments of Coansel I find that it is
not necessary to consider whether the decision of Barkitt, J«
and myself in Ganga Prasad v. Ram Dayal following that of
Mahmood and Blair, JJ« in an earlier case or the decision of
the Madras High Court in Manjunaiha v. Devamma (1) is
correct, for assuming that there can be no ^'account stated"
within the meaning or art* 64 unless reciprocal demands have
been set off against each other and a balance struck I think
that the basis of the present suit is clearly an ^'account
stated.'' The accounts are before us. They show that the
entries on the debit side relate to sums advanced to the
defendant or paid to others on his account by the plaintiff and
that the entries on the credit side relate to sums paid by the
defendant to others on account of the plaintiff. It seems that the
defendant conducted litigation for the plaintiff and managed
certain affairs for her, and in doing so he spent money on her
behalf out of his own pocket. This case differs widely from
the case of Jatoahir Singh v. Lachman Das where there had
been only an advance of a large sum to the defendant a calcula-
tion of the interest and an acknowledgement of the total sum due
signed by the defendant. It differs also from the case of Nahani
Bat V. Nathu Bhau (2) where the only entry on the credit side
related to a payment of interest on the sum advanced to the
defendant which appeared on the debit side of the acconnt.
It appears to me that just before the account was settled it was
a mutual open and a current account showing reciprocal demands
between the parties, such as is referred in art 85 of sch. ii
of the Limitation Act. Had the account not been closed, as it



(1) 1. L. B., 26 Mad., 186. (2) I. L. R., 7 Bom., 4H.



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168 TJIE OUDH CASES. [Vol. VII

^*J^™™*'^ was, a suit might have been brought upon it and would have been
V, within time if brought on the date on which the present suit

°* ^** was brought. There can I think be no doubt that when
such an account is made up, a balance is struck and the debtor
signs an acknowledgment that the balance is due there is an
account stated within the meaning of art. 64 of the same
schedule which evidences a new contract and upon which a
suit may be brought

Of the cross objections put in by the defendant-respondent
the first relates to costs and need not be considered if the
appeal is accepted and the decree of the District Court
reversed^ and the other which is not admissible in second
appeal was not pressed.

For the reasons which I have given I am unable to agree
with the learned District Judge who seems to have been of
opinion that nothing short of an express promise to pay would
support such a suit as this. Counsel for the defendant-
respondent did not attempt to support the view expressed by
the learned Judge. He felt no doubt that the authorities
must be accepted as establishing the view that an account
stated in the strict sense is evidence of new contract to pay,
whatever doubt there may be regarding an account stated in
the looser sense. Therefore he confined himself to contending
that the account did not show reciprocal and independant
demands.

I would accept this appeal, set aside the decree of the

Court below and give the plaintiff a decree for Rs. 3,000 with

interest at the rate of 6 per cent, per mensem from the date of

suit to the date of realization and with costs in all three Courts.

would dismiss the cross objections of the respondent.

RusTOMJi, A. J. C. — I entirely agree in the order proposed
by my learned colleague. The " account stated " in the
present case undoubtedly consisted of several cross claims
brought into account on either side and the balance must there-
fore be taken to be the starting point of an entirely new
contract. It is not a mere acknowledgment properly so called
and the plaintifE was legally right in basing her suit on such
fresh contract evidenced by the new balance struck.



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Vol. VII.] THE ODDH CASES. 169

RENT APPEAL, No. 37 OF 1904.*



Before Mr. Wells.



Hon'blb Maharaja Sir Partab Narain Singh (Plaintiff) 1^04
V. Ragho Bbhabi (Defendant).



Arrears of renty suit for — Kabuliat e<cecuted on stamp
payable for lease and registered — Transfer of Property Acty
section 107 — Res judicata.



The plaintiff-appellant sued the respondent for arrears of rent alleging him
to be a lessee of certain villages. The respondent admitted he had executed a
kabuliat in favour of the appellant, that he had been placed in possession of the
villages and had collected the rents. The claim however was resisted on the
ground that the relation of landlord and tenant, or thekadar, did not exist
between the parties inasmuch as there had been no registered lease executed
bj the appellant in favour of respondent as required by law. In a previous suit
for arrears of rent brought by the appellant against the respondent on the
lease now in question the respondent never raised the defence that there was
no valid lease, and a decree was passed for an amount agreed upon by the
parties.

Held^ that the kabuliat executed by the respondent was a lease within the
meaning of section 107 of the Transfer of Property Act and that the relation
of landlord and tenant subsisted between the parties. Section 107 docs not
specifically lay down that the lease must be by a registered instrument executed
by the lessor, and having regard to the prevailing practice in these provinces,
aad section 2 (16) of the Stamp Act a duly stamped registered instrument
executed by the lessee and accepted by the lessor either in writing or by
his acts, constitutes a good lease and establishes the relation of landlord
and tenant between the parties.

Held further, that the defence raised in the case was barred by the
principle of res judicata.

Fob Appbllant, — Mr. F. G. D. Lincoln^ Hon'ble Rai
Sri Ram Bahadar^ B. Ramapat Ram and
B. Balak Ram.

Fob Respondent. — M. Mohammad Nasim and Mr. E.
Manuel.



• Against the order of C. H. Roberts Esq., District Judge, Fyeabad, dated
the 16th April 1904, confirming the decree of B. Kundan Lai, Deputy Collector,
Fyzabftd, dated 30th April 1903.



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170



THE OUDH CASES.



[Vol. Vn.



Hon'ble
HAharaja Sir

Partab
Karain SiDgh

r.
Bagho Bebari.



Wbllb, 0. J. C. — ^The plaintiff •appellant sued the respond-
ent for arrears of rent alleging him to be a lessee of certain
villages.

The respondent admitted that he had executed a kabuliat
in favour of the appellant, that he had been placed in possession
of the villages and had collected the rents.

The claim however was resisted on the ground that the
relation of landlord and tenant, or thekadar, did not exist
between the parties, inasmuch as there had been no registered
lease, executed by the appellant in favour of respondent as
required bj law.

The Courts.below accepted this plea and dismissed the
suit.

The questions which arise in appeal are : —

(1) Is the respondent a legally constituted thekadar,
lessee, or tenant liable to pay rent ?

(2) Is the defence raised in this case barred by the
principle of re^jvdicaia ?

(3) Is the respondent's defence barred on the ground of
estoppel by conduct ?

With regard to the first point the learned District Judge
has held,^relying on the case of Jang Bahadur Singh v. Ehsan
Alt (1) that the lease now in question was not a lease for
agricultural purposes within the meaning of s. 117 of the
Transfer of Property Act and that therefore chapter V of the
Act applied, and that the lease should under s. 107 have been
by a registered instrument. On the ruling in the case of
JSand Lai v. Hanuman Das (2) he has held that the kabuliat
executed by the respondent cannot be considered to be a lease
within the meaning of s. 107 ; that there being no valid lease,
the appellant is not a lessor, and that the relation of landlord
and tenant not subsisting he cannot claim rent.



(1) 6 Oudb Cases, 222.



(2) All. W. N. 1904 p. 46.



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Vol. VII.l THE OUDH CASES. 171



Hon'ble



The first point taken in argument is that the lease was Mabiuaja Siv
one for agricnltaral purposes and therefore the Transfer of j, ^^^^^
Property Act does not apply. v.

The learned Counsel for the appellant contends that a lease ,
for agricultural purposes includes not merely one under which
the lessee cultivates the lands himself, but also a lease under
which the lessee can get the cultivation done by others ; and
that therefore a lease such as the one in suit, under which the
former can collect rents from tenants, eject them, re-let the
land or cultivate it himself, is a lease for agricultural purposes.

The argument is ingenious but I am not prepared to
accept it. I think chapter Y of the Transfer of Property
Act must apply to such leases as that now under consideration.
In the Allahabad ruling above quoted Mr. Justice Blair held
that in order to comply with the provisions of the Transfer of
Property Act there must be a lease executed by the lessor,
following a ruling of two other learned judges, that, where
the letting was for more than one year, the execution of a
kabuliat by the tenant, there being no patta^ and no acceptance
of the kabuliai in writing, does not constitute a lease, under
the Transfer of Property Act.

Mr. Justice Banerji would not commit himself to this
opinion, having regard to the common practice in these pro*
vinces of treating a kahuliat as an instrument creating a tenancy
and the general unsettlement of titles which might follow such
a ruling. I am inclined to follow Mr. Justice Banerji.

The kabuliat now in question is not a mere counterpart of
a lease executed on a stamp of one rupee. It is a document
executed on the full stamp payable for a lease*

If there had been an acceptance of it in writing the ' : £
judges of the High Court would, apparently, ha- : ^
such a document good as a lease.

But in the present case there has been more than a m *-
acceptance of it in writing. It was followed by a delivery o£
possession of the property and an acceptance of paymcu^



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172



THE OUDH CASES.



LVoL. VII.



Hon'ble
Maharaja Sir

Partab
Kandn Singh

r.
BaghoBehari,



according to it. Section 107 of the Transfer of Property Act
does not specifically lay down that the lease must be by a regis-
tered instrument executed by the lessor, and having regard
to the prevailing practice in these provinces, I think that a
duly stamped registered instrument executed by the lessee
and accepted by the lessor either in writing or by his
acts constitutes a good lease and establishes the relation of
landlord and tenant between the parties. I may observe,
though it was not suggested by the learned counsel for the
appellant, that the prevailing practice appears to have a found-
ation in law inasmuch as in s. 2 (16) of the Stamp Act a lease
is said to include (a) a patta and (6) a hahuliat or other under-
taking in writing to pay rent for immovable property; therefore
a hahuliat by itself is a lease, and the report of the Select
Committee of 1878 establishes that this was the intention of
the Legislature.

After this finding I do not think it necessary to discuss
at great length the question of res judicata or to review all
the authorities which have been cited. The appellant brought
a suit for arrears of rent against the respondent on the lease
now in question. The respondent never raised the defence
that there was no valid lease and a decree was passed for an
amount agreed upon by the parties. In the decree the words
^^babat theha^ ' were used. The learned District Judge relying
on a passage in a commentary on the law of res judicata has,
on the strength of an English decision, held that res judicata
signifies that the Court has after argument and consideration
come to a decision on a contested matter. The case referred
to was considered by this Court in Muhammad Ismael
Khan V. Abdul Rahman Khan (1) and it was held that a
matter might become res judicata in consequence of a decision
founded on a compromise.

The learned pleader for the respondent has practically not
attempted to support the view of the Judge. It appears to
me that the matter is exceedingly simple. The respondent



(1) 2 Oudh Cases p. 28 at p. 32.



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V^OL. VII.l THE OUDH CASES. 173

being sued for rent on this very lease made no defence at all and ^r^°° ^%.
it was decided that he was liable to pay by a decree for rent Partab
being passed. I consider that in that case he might have ^,

raised the defence now set np. Had it been raised and been R»«^^i^a"'
successful the appellant would have snrely taken prompt steps
to oust respondent from the property, and would not have
permitted him to mn heavily into arrears of rent.

Therefore the respondent ought to have raised the plea
and let the appellant know the position he claimed. The
question of the liability to pay rent was substantially in issue
in the former case and was disposed of. Differing from the
lower appellate Court I find that the defence is barred by the
principle oi res judicata.

I do not think necessary to consider the question of
estoppel.

In the above views I allow the appeal and decree the
claim with proportionate costs for the amount found due by the
Court of first instance, Bai Bahadur Sri Bam for appellant
having stated that he accepts this amount.



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1 74 THE OU DH CASES. [Vol. VII.

EXECUTION OF DECREE APPEAL, No. 17 OF 1904.*



Before Mr. Chamier.



1904. Lala Bansidhar {Decree-holder) v. Chaudhrain Zbb-uk-

May 25. ^igg^ anj another {Judgment-debtors).



Allowance of ward granted by Court of Wards, attachment
of in execution of decree against him — Code of Civil Procedure,
s. 266 — Northr Western Provinces and Oudh Court of Wards
Act, 1899, s. 22.



A mm allowed by the Conrt of Wards under s. 22 of the North- Western
Provinces and Oudh Conrt of Wards Act, 1899, in respect of the expenses of a
ward and of his family and d^>endent8, is not a debt within the meaning of the
first paragraph of s. 266 of the Code of Civil Procedure, and cannot be
attached in execution of a decree obtained against them«



For Appellant. — Mr. E. Manuel.

For Respondents. — B. Gokul Prasad.

Chamier, A. J. C. — The question for decision in this
appeal is whether a sum allowed by the Court of Wards for
the expenses of a ward and her son can be attached in execution
of a decree obtained against them. The estate of the ward
Chaudhrain Zeb-un-nissa has been under the management of the
Court of Wards for several years. In December 1900 the
ward and her son Shafiq-ul-zaman executed a bond in favour of
the appellant, wlio brought a suit upon it, and obtained a decree
against both the executants on 30th September 1902. The suit
should not have been decreed against the ward, for section 34
of the North- Western Provinces and Oudh Court of Warda
Act 1899 provides that a ward shall not be competent to enter

* Against the decree of M. Jwala Prasad, Subordinate Judge, Bar a Banki,
dated 1st December 1903.



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Vol. VII.] THE OUDH CASES. 175

into any contract which may involve him in pecuniary liability. BanSuhar
However, the decree was passed as stated. Under section 22 ^*

of the same Act, "The Court of Wards may, from time to time, Zeb-un-nissa
" determine what sums shall be allowed in respect of the ^^^^ ^^*

^* expenses of any ward and of his family and dependents."
The Court of Wards have been allowing the ward Rs. 500 and
her son Bs. 100 per mensem under this section, and these are
the sums which the decree-holder seeks to attach. The Court
below has rejected the application of the decree-holder. It
appears to me that its order is unquestionably right. The
allowances of the ward and her son are. certainly not debts
within the meaning of the first paragraph of section 266 of
the Code of Civil Procedure, and I do not think they can be
brought within this paragraph at alK The money when
handed over to the judgment-debtors might perhaps be attached
as money, but the decree-holder does not seek to attach any
money, and in practice the attachment of money as such is
found to be attended with many difficulties. The Court below
rejected the application upon the ground that attachment of
the allowances was forbidden by clauses (k) and (I) of the first
provision to section 266 of the Code of Civil Procedure. In
my opinion the allowances in question do not even come
within these clauses for the judgment-debtors have no right
contingent or existing to the allowances in question. The
appeal is dismissed with cost«.



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176 THE OUDH CASES. [Vol. VII

FIRST CIVIL APPEAL, No. 116 OF 1901. *



Before Mr. Chamier.



1903 ^^^^ Ahmad Raza Khan {Plaintiff) v. Mirza Ali Hus-

JuNB 4. SAIN AND OTHERS (Defendants).



Disqualified proprietor^ suit against^ in his oum name —
Collector^ entry in record of the name of after limitation — Act
XIX of 1873 — Heritable wasika to be taken into account in
ascertaining husband^ s property for fixing dower — Oudh Laws
Act^ s. 5 — Disposal by unll of dower fixed by Court — Mahomedan
Law.



The defendant at his marriage agreed to pay his wife H Bs. 1,25,000 as
dower. Of this sam H by her will bequeathed Rs. 80,000 to the plaintiff
and W in equal shares. S died in NoTember 1896 leaving no property
except her dower debt. The plaintiff sued the defendant for his share
of the legacy. The defendant was at the date of the suit a disqualified pro-
prietor whose estate was in charge of the Court of Wards, and the suit (which
Mras filed on the last day of limitation) was brought against him in his own
name instead of in the name of the Collector of the District in which the suit
was instituted. The name of the Collector was not entered on the record
till after the period of limitation had expired. The Court reduced the amount
of dower to Bs. 7,500.

Held, that having regard to the provisions of Act XIX of 1873 (N.-W.-P,
Land-Revenue Act) the disqualified proprietor was the real defendant, that no
new party was added when the name of the Collector was entered on the
record, and that therefore the suit was not barred by limitation.

Held, that a heritable ukuiqa should be taken into account in ascertain-
ing the means of the husband under s. 6 of the Oudh Laws Act

Held, that under the Mahomedan Law H could not dispose by will of
more than one third of the amount of dower fixed by the Court.

* Against the decree of M. Jwala Persbad, Subordinate Judge, Lucknow
dated 26th March 1901.



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Vol. VII.]



THE OUDH CASES.



177



Fob Appellant. — S. Sliahenshdh Husain.
For Respondent No. 1. — P. Janki Nath.
For Respondent No. 2. — B. N, N. Ghoshal.
Chamibr, a. J. C. — ^The defendant Ali Hussain at his mar-
riage agreed to pay liis wife Haji Begam Rs. 1,25,000 as
dower. Of this sum the wife by her will bequeathed Rs. 15,000
to the plaintiff and a like sam to the defendant Waris Ali Khan.
She died on November 24th 1896. In the present suit institut-
ed on November 24th 1899 the plaintiff who concedes that the
amount of the dower must be reduced un^or s. 5 of the Oudb
Laws Act claims a decree for Rs. 5,500. The Subordinate
Judge under the section just quoted fixed the dower at Rs.
10,000 and held that the plaintiff would have been entitled
to a decree for -j^f of that sum ue. Rs. 1,200 but that the suit
was barred by limitation. The plaintiff appeals. The reason
why the suit is said to be barred by limitation is that
although the defendant Ali flussain was at the date of the suit
a disqualified proprietor whose estate was in charge of the
Court of Wards the suit (which was filed on the last day of
limitation) was brought against Ali Hussain in his own name
instead of in the name of the Collector of Cawnpore, the dis-
trict in which the suit was originally instituted, and the name
of the Collector was not entered on the record till after the
period of limitation had expired. The Subordinate Judge held
that the entry of the Collector's name in the plaint was
equivalent to adding a new party to the suit. In my opinion
this is an erroneous view. Act XIX of 1873 provided that ali
disqualified proprietors whose property is in charge of the Court
of Wards and for whom guardians had been appointed should
sue and be sued in Civil Courts by and in the name of their
guardians and that disqualified proprietors for whom guardians
had not been appointed should sue and be sued in the name of
the Collector of the district in which the suit was brought*
This provision is so w^orded as to shew that the person suing
or being sued is the person really interested t. e. the disqualified
propriej^pn The |pardiw of ^ disqualified pri^rietor f» a role



Syed Ahmad
Baza Khan

V.

Mirza Ali

Hussain and

others.



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178



THE OUDH CASES.



[Vol. VIL



Byed Ahmad
Baza Khan

Mirza AU

Hussain and

others.



has no control over the litigation which is of coarse conducted
nnder the orders of the Court of Wards. The Collector of the
district in which the suit is brought is not necessarily, a person
who has anything to do with the disqualified proprietor or his
property. In practice all that he does is to pass on notices
or sign papers unless the estate of the ward is in his own
district in which case of course he is to some extent responsible



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