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

for the conduct of the litigation. It appears to me that the real
plaintifiE or defendant is the disqualified proprietor and that
there is no real distinction in principle between the case of a
disqualified proprietor suing or being sued in the name of his
guardian or the Collector of the district and the case of a minor
represented by his next friend or guardian or the case of a
lunatic represented by his committee. It has been held both
in England and in India that a next friend is not a party to
the suit.

In myiDpiiiion no new party was added when the name
of the Collector was enteml 4m the record. None of the cases
cited in the judgment of the Court below beaTsmiy rtmmkimaoe
to this case but I may refer to the decision of the Privy
Council in Ashar/l Lai v. Deputy Commissioner^ Bara Banki
where their Lordships say that if the disqualified proprietor
should have been sued by his guardian insteaci of by the Deputy
Commissioner an objection to the maintenance of the suit on such
a ground would be of the flimsiest character. If a plaintiff
were to sue a disqualified proprietor in the name of his supposed
guardian and it were to turn out that no guardian had been
appointed or having been appointed had been removed and the
name of the Collector were then entered on the record I
suppose that no one would seriously contend that a new party
had been added. Both in the case supposed and in the present
case the entry of the name of the Collector is in my opinion
nothing more than the correction of a misdescription. I hold
that the suit was filed within time and must be disposed of on
the merits.

The defendant contends that the value of Ali Hussain's



Digitized by VjOOQIC



Vol. VII.]



THE OUDH OASES.



179



Estate has been underestimated by the Court below, which fixed
it at Rs. 20,000. It is pointed oat that the Conrt did not take
his toasika into account. In the case of Muzzaffar Hussain v.
Abtda Begam (1) decided on January 8th 1895 it was held
that a heritable toasika should be taken into account in
ascertaining the means of the husband under s. 5 of the Oudh
Laws Act. The amount of the tvasikd is Rs. 14-12-0 per
mensem of which the capitalised value is not less ttian Rs. 2,500.
The lower Court's valuation of the rest of the property has not
been seriously challenged. I theref oire hold that the estate of
Ali Hussain is worth Rs. 22,500. But having regard to the
status of the wife who was the daughter of an unmarried
slave-girl I consider that the amoimt of dower should not
exceed Rs. 7,500. I consider that the amount fixed by the
Court below, Rs. 10,000, is excessive being one half of the estate.

It was pleaded that as Haji Begam could not under the
Mahomedan Law dbpose by will of more than one-third of her
property, and as it is admitted that she had no property
except ber dower debt the will would only hold good for
a sum of Rs. 8,383-5-4. The Subordinate Judge held that
Haji Begam had power to dispose of one-third of Rs. 1,25,000
because that was the amount of the dower debt. This view
appears to me to defeat the intention of the Muhamedan Law.
Haji Begam was never at any time entitled to the sum of Rs.
1,25,000. The value of the dower debt must be taken to be
Rs. 7,500 and therefore in my opinion that must be considered
to be the value of her property. It was admitted before me
that she had no property, other than her dower debt.

The clause of the will containing the bequest to the plaint-
iff and Waris Ali Khan is as follows:—

" Out of my dower debt amounting to Rs. 1,25,000 due
" from my husband I bequeath Rs. 30,000 to Ahmad Raza
** Khan and Waris Ali Khan. They will be entitled to this
** sum in equal shares and will be entitled to recover it from my
*' husband."



Sired Ahmad
BataEhaa

MirzaAti

Hussain and

others.



(1) F. C. A. No. 29 Of WW.



Digitized by VjOOQIC



180



THE OUDH CASES.



[Vol. VII.



Syed Ahmad
Baza Khan

MiTEaAU

Hnasain and

others*



The testatrix does not dispose of the rest of her dower and

therefore I do not understand why the Subordinate Judge

held that the legacies to the plaintiff and Waris Ali Khan

should be ^ of the amount allowed as dower. The testatrix does

no
not say that the legatees shall be entitled to j^^ of the dower

but she leaves them Rs. 30,000 to be paid out of the dower
debt. Had she been entitled to dispose of Rs. 7,500 the
legatees would have been entitled to Rs. 8|750 each but as she
was able to dispose of only Rs. 2,500, each of them is entitled
to Rs, 1,250 only. For these reasons I set aside the decree of the
Court below and pass a decree in favour of the plaintiff against
the second defendant for Ra. 1,250. As the amount claimed
by the plaintiff was plainly excessive I direct that the plaintiff
and the second defendant (the Collector representing Ali
Hussain) receive and pay proportionate costs, I may add that at
the close of the arguments the Government Pleader stated that
a suit had been brought against Ali Hussain which if successful
would deprive him of the whole of his estate. Hiere is no
evidence of any such suit and this appeal must be disposed of on
the materials on the record.



Digitized by VjOOQIC



Vol. VII.] THE OUDH OASES. 181

SECOND CIVIL APPEAL, No. 458 OF 1903.*



Before Mr. Chamier,



Hazari (Defendant) v. Lallu and another (Plaintiffs)* 1904
June 4.

Contract respecting minor's estate made by Us natural
guardian not void but voidable — Contract between plaintiff and
third party^ on what grounds defendant can question validity
of.



A sale or mortgage o! or other dealing with a minor's estate by a de facto
and natural guardian is not a nullity ; it is not void but only Toidable and
only the minor or his representatives can ratify it or avoid it ; and the same
is the case with a certificated guardian who deals with his ward's estate
without the sanction of the Gowxt,

A volunteer cannot as plaintiff avoid a transaction which does not concern
him, and a defendant can always resist a suit upon the ground that no right
OP title at all has passed to the plaintiff or that an assignment to the plaintiff
was made to defraud the defendant or was illegal or void or opposed to pubUc
policy; but where an assignment is in law sufficient to pass title to the
plaintiff and is not illegal or void or opposed to public policy or a fraud upon
the defendant but is only voidable at the instance of a third party on the
ground of undue influence, failure of consideration or the Uke, then the defend-
ant cannot challenge the validity of the assignment unless a trial of the
question of its vaUdity is necessary for his protection, in which case the person
who has the right to ratify or avoid the assignment should be made a party to
the suit and tlje validity of the assignment tried out.



Fob Appellant.— Pt. Atakhan Lai.

For Respondents.— B. Basdeo Lai andU. Mohamed

Nasim.

Chamier, A. J. C— This was a suit for possession of a

share in a mahal. The plaintiflFs claimed to be entitled to the

property by virtue of a deed of sale in their favour executed

by one Mahadfeo as guardian of his niece Ram Piari who was

* Against the decree of Babu Bam Pershad, Subordinate Judge, Kheri, date?

ltJ''f^l^^l\'^T'^ '^'^'^^ ^ ^^ Mojuumnad Jsmail, Mimaif,
Wen, dated 17th June 1903, i-*— -t «.h«p«,



Digitized by VjOOQIC



others.



182 THE OUDH CASES. f Vol. VH.

Hazari ^^jj^jj ^ minor. The defendant resisted the suit upon a number
Lallu and of grounds ot which one was that Mahadeo had no authority
to sell the property to the plaintiflEs. Both the Courts below
have rejected this defence holding that the defendant has no
concern with the validity of the sale to the plaintiffs. The
defendant has appealed upon several grounds but the only
ground which has been pressed is that the defendant was
entitled to question the validity of the sale to the plaintiffs and
that the sale was invalid.

There can be no doubt that the defendant was entitled to
show, if he could, that the plaintiffs acquired no title under the
sale-deed executed by Mahadeo, but it is admitted that Mahadeo
was the nearest male relative and the de facto and natural
guardian of Ram Piare, and therefore he had power to deal
with the property, albeit a limited and qualified power to be
exercised only in case of need or for the benefit of the
minor's estate— £?anooman Pershad Pandey^s case (1) A
sale or mortgage of or other dealing with a minor's estate by
a de facto and natural guardian is not a nullity ; it is not void
but only voidable and only the minor or his representatives
can ratify it or avoid it (See Trevelyan on Minors, Chapters
XVn and XXI). This is well settled law and the same is the
case with a certificated guardian who deals with his ward's
estate without the sanction of the Court (^See Act VIII of 1890
8. 30.) A voidable act takes its full and proper legal effect
unless and until it is disputed and set aside by some person
entitled so to do (Pollock on Contracts, TH Edition p. 9). On
principle it seems to me that the plaintiffs' title which has not yet
been challenged by the minor must prevail against the defend-
ant who is a mere trespasser. The authorities also seem to
show clearly that the plaintiffs are entitled to succeed. In Ban
Ram V. Jitan Ram (2) the plaintiffs who had purchased the
rights of a minor at an auction sued tor possession ; the defend-
ants claimed to be entitled to retain possession under a mortgage
executed by the minor several years before the auction.



(1) 6 Moo. I. A., 393 at 423. (2) 3 B. L. B., A. C. 426.



Digitized by VjOOQIC



Vol. VII.]



THE OUDH CASES.



183



In those days and indeed until quite recently {see T. L. R., SO
Calc; 5^9, P. C.) it was held in Calctltta that a minor's contract
Was voidable not void. Treating the mortgage as a voidable
transaction the Court held that it; was binding upon the plaintiffs
until it was avoided by the minor. In Sadashiv v. Trimbak
(1) Sir C. Farran and Kanade J. taking the same view of a
minor's deed of release held that being voidable only at the
option of the minor it was valid against judgment-creditors
whose debts were of dates subsequent to the minor's deed
under which the defendant claimed title. The same rule holds
good in the case of any transaction which is voidable only and
not void. Thus a contract or transfer of property may be set
aside on the ground of undue influence but the jurisdiction
of Court in such cases will not be exercised at the suit of third
persons. Therefore a Court will not refuse to pay a fund,
at the request of the petitioner entitled thereto, to the trustees
of a deed of gift previously executed by the petitioner, because
third parties suggest that the gift was not freely made (see
Metcalfe's Trusty 2 De Otex Jones and Smith 122). I applied
this rule in the case of Mahmud Khan v. Tulsi Ram^ (2)
where the respondent pleaded that a deed of sale under
which the plaintiff claimed title had been procured by undue
influence brought to bear by the plaintiff's vendor upon
the guardian of a minor. Purchases made by solicitors
from their clients can almost always be challenged but
if a solicitor purchases an annuity from his client and
institutes a suit against third parties to recover payment
such third parties cannot sustain an objection to the purchase;
tte client alone can sustain the objection (Knight v.
Bowyer (3). Similarly where an assignee sues on his
assignment and proves it a third party defendant cannot
resist the suit on the ground that there was no consideration
[see Kazim Sosain Khan v. Achal Ram (4) followed by me
in Ram Lai v. Bachanu (5)] and Kachu v. Kachoba (6). The

(1) • 1. L. K., 23 Bom., 146. (2) S. C. A., 186 of 1903.

(3) 27 Law Journal, Chancery 520. (4) 2 O. C. 149 at pp. 176 and 192.

(6) S. C. Appeal, 342 of 1901. (6) 10 Bom. H, C. B. 491.



fiaEari

*'•

liallu and

other*



Digitized by VjOOQIC



184 THE OUDH CASES. [Vol. VII.

Hazari learned pleader for the defendant relies upon the cases of
Lalln'and Manishanker v. Bai Mult (1), Honapa v. Mhalpaiy (2) Datta-

^ ^^* ram v. Gangaram (3), Anant v. Sadasheo (4) and S^ed Nrnrul
Hasan v. Wazir Mirza (5) but all these cases are clearly
distinguishable. In the first of them the defendants were the
mortgagors of property and the plaintiflF claimed under an
assignment executed by the widow of the mortgagee as natural
guardian of the minor son of the mortgagee. The Court said
that although as a rule when an assignee sues on his assignment
and proves it the defendant cannot object that there was no
consideration yet when the assignment is on behalf of a minor
and it is necessary for the protection of the defendants that the
question should be so tried as to bind the minor, the minor
should be made a party to the suit otherwise the mortgagors
would not be protected. The second case was of the same
character; the defendant was the drawer of a hundi and the
plaintifiE claimed under an assignment from the widow of the
payee acting as guardian of her minor sons ; the Court held
that it was necessary for the protection of the defendant that
the question of the validity of the assignment should be tried.
In the third case the defendant was a mortgagee from the late
owner of the property. The suit was one for redemption by
a person claiming under a second mortgage executed without
permission by the certificated guardian of the minor son of the
owner. The Court said that it could make no difference to the
defendant whether he was paid by the plaintiff or any other
person but the suit was remanded in order that the minor
might be made a party and the validity of the second mortgage
tried. Apparently the Court thought that under s. 85 of the
Transfer of Property Act the owner of the property was a
necessary party and the object of the remand was that the
question of the validity of the second niortgage should be
decided once and for all. All that was held in the fourth case

was that when a person suing in ejectment claims title under

» -^

(1) I. L. R., 12 Bom., 686. (2) I. L. R., 15 Bom., 259,

(3) I. L. R., 23 Bom., 287. (4) 1 Bom. L, Jt., 58.

(5) 6 0,0,36?.



Digitized by VjOOQIC



Vol. VII.]



TIIE OUDU CASES.



185



a deed of sale the defendant may prove that the deed does not
represent a real transaction but it is a mere sham conveying no
title at all. In the fifth and last case it was held that a mort-
gagor was entitled to put to proof of his title any person other
than the original mortgagee and might defeat the suit upon
showing that what purported to be a transfer of the mortgagee's
rights was in law inoperative. In that particular case the
plaintiff failed because the document under which he claimed
ought to have been but had not been registered. Therefore the
fourth and fifth cases only show that a defendant can defeat a
suit upon showing that no title at all has passed to the plaintiff.
The first and second cases show that where it is necessary for
the protection of the defendant that the question of the validity
of an assignment to the plaintiff should be tried that question
must be tried, and in the third case although it was not necess-
ary for the protection of the defendant that the validity of the
second mortgage should be tried yet the Court held that tho
question should be tried in view of the provisions of s. 85 of
the Transfer of Property Act

It appears to me that the cases which I have cited show
that a volunteer cannot as plaintiff avoid a transaction which
does not concern him, that a defendant can always resist a suit
upon the ground that no right or title at all has passed to the
plaintiff or that an assignment to the plaintiff was made to
defraud the defendant or was illegal or void or opposed to
public policy, but that where an assignment is in the law suffi-
cient to pass title to the plaintiff and is not illegal or void or
opposed to public policy or a fraud upon the defendant but is
only voidable at the instance of a third party on the ground
of undue influence, failure of consideration or the like then the
defendant cannot challenge the validity of the assignment unless
a trial of the question of its validity is necessary for his pro-
tection, as where the defendant is a debtor bound at his peril
to pay his debt to the person entitled to receive it. In such a
case the -person who has the right to ratify or avoid the assign-
ment should be made a party to the suit and the validity of the
assignment tried out.



Hazari

r.

Lallu and

others.



Digitized by VjOOQIC



186 TJIE OUDH CASES- [Vol. VII

^^^^ In the present case the defendant is a mere trespasser*

LaUn oBd As against him the title of the plaintiffs is good until it ia

8acees»fnllj assailed hj a third person. Therefore the defend'

ant cannot challenge the validity of the as^gfmvent to the

plaintiffs on the ground stated*

For these reasons I agree ^ith the Courts below and
dismiss this appeal with costs.



Digitized by VjOOQIC



Vol. VII.l THE OUDH CASES. 187

SECOND CIVIL APPEAL No. 227 OF 1903.*



Mr^ Wells and Mr, Rustomjee.



1904,
Thakur Chhatardhari Singh (Plaintiff) r, B hag wan Din Junk '&

(Defendant).



Declaration that defendant is an ordinary tenant^ suit for —
Limitation for declaratory ^t by landlord against tenant after
forder of Revenue Court cancelling notice of ejectment — Indian
Limitation Acl^ Schedule ii^ art, 120.



The plaintiff sued to have it declared that the defendant was an ordinary
tenant of the land in suit. The plaintiff had served the defendant with a
motice of ejectment which he resisted, claiming an under-proprietary right,
and the notice was cancelled on the ground that he was something more than
a tenant.

Held^ that the period of limitation should run £rom the date of the order
of the Bevenxie Court cancelling tlje notice and not from the date of the peti-
tion of objecftions in wkick the defendant alleged that he had certain rights.



For Appkllant. — Mirza Sami-ul-lak Beg^ Mr. R. Manuel
Itolding brief of

For Respondent. — B. liar Dayal.

Wells, 0. J. 0. — The plaintiff appellant sued to liave it
declared tliat tlie respondent was an ordinary tenant o£ tlie
land in suit. The plaintiff had served the defendant ^ith a
Dotice o£ ejectment which ho resisted, claiming an under-pro-
prietary riglit, and the notice was cancelled on the ground that
he was something moi*e than a mere tenant. It is admitted
that art. 120 of iho second Scliedule of Ave Limitation Act
applies to this case and the question which has caused the case
to he referixjd to tliis Bench by our leaincd collcagne, Mr,



• Against the decree of Kuar Parmanand, Rac Bahadur, Subordinate Juilgc,
riae Rarcli, dated 14th Ai)ril 190?, confirming the decree of I>abn Matl^urA
FiiLsad, AIua»iif, lUie J3«icli, <latc(l 20tJi Dcccavbtr 1902.



Digitized by VjOOQIC



188



THE OUDH CASES.



[Vol. Vn.



Thaknr
Chhatanlhari

r.
Bhagjwan



Oliamier, is whether the period o£ limitation should run from
the date of the order of the Revenue Court cancelling the
notice, or from the date of the petition of objection in which
the respondent alleged that he had certain rights.

In the case of Thakur Gajraj Siyifjfh v. Musammat Phuljliari
(1) Mr. Chamier observed : — *' When a tenant holding from
" year to year denies his landlord's title or sets up a permanent
" lease the landlord need not sue for a declaration, his obvious
" course is to take proceedings to eject the tenant. This is

" the course the plain tiflE took in the present case It

" was the decision of the Revenue Court which forced the
" plaintiff to institute the present suit. Had he sued before
*' the decision of the Revenue Court his suit might well have
" been thrown out as unnecessary, for a Civil Court will not
" entertain a suit for a declaration when another and more
'' effective remedy is open to the plaintiff."

In this view Mr. Chamier held that limitation would
run from the date of the Revenue Court's order. He has
referred the present case because he thinks there appears to be
conflict between his decision quoted above and that of Mr.
Blennerhassett, Ham Fakir v. Haja Rampal Singh (2),
In that case Mr. Blennerhassett observed : — " A suit
" of this character should hjive been brought within six
" years from the time when the defendant put forward his
" claim."

But it does not appear that Mr. Blennerhassett ever consi-
dered the nice question as to whether limitation should run
from the date on which the claim was first put forward or from
the date of the order of the Revenue Court thereon. He notes
that the lease, on which the objector to the notice of ejectment
claimed, was put forward in October 1878, no date being
specified, and the notice of ejectment was cancelled on October
20th, 1878. The suit for declaration was brought in 1896 on a
cause of action which was alleged to have arisen in 1893.



(1) F. C. A. No. IS of 1902.



(2) Stv )iul Appeal No. 229 of 1897.



Digitized by VjOOQIC



Vol. VIL]



THE OUDH CASES.



189



So the question now at issue was not really before Mr.
Blennerhassett and was not therefore probably contemplated by
him« It does not therefore appear to me that there has been
any real conflict between the opinion of my learned colleague
and his learned predecessor.

The point for determination is whether it is the mere
assertion that a man has a certain right or the finding of the
Revenue Court that there is some foundation for that assertion
which gives a cause of action, or, in other words, the "right
to sue/* tor a declaratory decree, or obliges the landlord to
bring such a suit to prevent an under-proprietary title being
claimed through adverse possession.

There have been probably thousands of cases in Oudh in
which, on being served with a notice or sued for rent, the
alleged tenant commences by saying that the land is his ^V or
sTiankalp. The notice is upheld or the rent decreed. The
tenant goes on quietly holding and paying his rent. Can it be
suggested that In all these cases the landlord could or ought
to sue for a declaratory decree to establish his title ? And why
not? Because the allegations of the tenant are mere verbiage
and can be disregarded in the face of the decision of the
Bevenue Conrt.

It is an adverse decision of the Revenue Court which
makes it necessary for the landlord to sue, which gives him a
reason for suing, which, in other words, gives him a cause of
action, in short a right to sue.

Mr. Manuel for the appellant has referred to the case of
Striniathoo and others v. Dorasinga Tevar, a Privy Council rul-
ing reported in 15 B. L. R. p. 83. In that ruling the case of the
Raja of Pachete is referred to on p. 101. He had brought a
suit to have it declared that the defendants had not a brahmottara
tenure which they claimed. In consequence of this declaration
he could get no relief as he was in full possession of the land.
Their Lordships in that case aflSrmed the now well-known
principle that a declaratory decree cannot be made unless there
be a right to consequential relief capable of being had in the
same Court, or, in certain cases, in some other Court.



Thakar

Chhatflidhari

Singh

r.

Bhagwan

Din.



Digitized by VjOOQIC



190



t«eoudii<;a.sE8.



LVoL. VII.



Diu.



ChUarardbaii ^^^ ^'*® present case the plaiiitifP, will be eutitled to

Siiigb. relief in consequence of getting a declaratory decree. He will

Bhaj,'wan now Ix; entitled to get the defendant ejected by a Revenue
Court, And therefore he is entitled to bring this suit.

But if the Revenue Court had upheld the notice the plaintiff
would not have been entitled to any relief in consequence of
getting a declaratory decree, because he had already got from
the Revenue Court all the relief tliat he could want or expect.
He would have been considered to bo unnecessarily harassing
his tenant with litigation in bringing a suit for declaration.
He therefoi-e could not have brought this suit for a declara-
tion but for the order of the Revenue Court against him.

In support of his contention Mr. Manuel has referred us to
I. L. R., 1 All., p. 688 (see p. 705), I. L. R., 8 All., p. 70
(see p. 76), I. L. R., 21 Bom., p. 509 (see p. 516), I. L. R., 27
Calc, p. 165 (see p. 165), 1. 1^ R., 25 Mad., p. 507 (see p. 511)
but I do not think it necessary to discuss these authorities.
For the reasons stated above I have no hesitation in holding
that tlie view taken by Mr. Chamier in Thahur Gajrag Singh
V. AJusammat Pkuljhari is correct and that in such a case as the