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

and stated that he would present a separate application for execution.
The judgment-debtors objected that the appellant was the benamidar of
the purchaser of the decree and was therefore not entitled to take out
execution. The lower Courts decided this question against the appellant.

Held^ that there was evidence to support the finding of fact and that the
judgment-debtors were entitled to insist upon the name of the real purchaser
being entered on the record.



For Appbllant — B. Basdeo Lai
For Respondknts Nos. 1 and 2 — S. Wazir Hasan
For Respondent No. 3 — B. Gohul Pershad
Chamibr, a. J. C. — The first point in this appeal is whether
there is any evidence to support the finding that the real par-
chaser oE the decree is Abdul Wahid Khan and not the
appellant. The evidence o£ Mohammed Hadi described as
, agent oE the original decree-holder shows that the decree was
ostensibly sold to the appellant^ but the sale-deed shows that
the greater part oE the purchase-money was paid by means o£
a cheque on the Bank oE Upper India No. L 26678 which the
evidence oE Mohammed Hadi shows, must have been drawn
by Abdul Wahid. There is on the record a copy oE a cheque

•Againit the decree of C. L. M. Eales Esq., District Judge, Lucknow, dated
16 Janowy 1904, confirming the decree of Pandit Suraj Narain, 8ubordin«t«
Judge, Lucknow, dated 2l8t July 1903.



Digitized by VjOOQIC






230



THE OUDH CASES.



[Vol. VII.



Hohamtned
Akbar Khan

V.

Ifawab Shah
Ara Begam
cand others.



but this copy is not admissible in eridence unless the parties
dispensed with the production of the original. Tliere b some
reason to suppose that they did so but it is better to disregard
this document. However, a certified extinct o£ Abdul Wahid's
:account with the Bac^ is in evidence which shows that cheque
No. L 26680 was drawn by Abdul Wahid in the month follow-
ing that in which the sale of the decree took place. So there
is little doubt that the cheque mentioned by the witness was^as be
says, drawn by Abdul Wahid. It is not explained why Abdul
Wahid should draw a cheque for over Rs. 7,600 in favour of the
appellant on the very day on which the sale took place. The
witness also proves that he came to know of the appellant
through Abdul Wahid ; that the negotiations for the sale were
held with Abdul Wahid and not with the appellant, and that it
was not till three days before the execution of the sale-deed
that the witness knew that the sale-deed would be in favour of
the appellant. The facts which I have stated point to Abdul
Wahid being the purchaser and certainly call for an explanation.
No explanation was given. Neither Abdul Wahid nor the
appellant ventured to come near the witness-box and I find it
impossible to hold that the facts above stated did not justify
the finding that Abdnl Wahid was the purchaser.

The second point is whether the appellant can as benamidar
of Ab(}ul Wahid take out execution of the decree. At the
€X parte hearing before Mr. Wells this question was abandoned
by the learned advocate for the appellant who has not
to-day produced any authority in support of the proposition
that the appellant can execute the decree.' On the other side
authorities have been cited to the effect that the appellant can
not do so. In my opinion the judgment-debtors are entitled to
insist upon the name of the real purchaser being entered on the
record whether the name of the benamidar remains there or not.
From the evidence it appears that Abdul Wahid has special
reasons for keeping himself in the back ground. In my opinion
on the facts found the appellant's application was rightly
dismissed and I dismiss his appeal with costs.



Digitized by VjOOQIC



Vol. VIL] THE OUDH CASES. 23i

SECOND eiVIL APPEAL, No. 332 OF 1903. *



Before Mr, Rustomjee.



Shaikh Karam Husain (Defendant) t. Ram Gopal 1904.
(Plumtiff). Junk 30.

Leatefor quarrying limestone — Registration Act (III of
1877) section 17 clauses (b) and (d) and section 49 — Admissibility
of unregistered lease for quarrying limestone.



In a snit for poflsession of certain land from which the plaintiff alleged that
he ihad been dispossessed by the defendant, the question was whether two
deeds under which the plaintifE and the person through whom he claimed were
authorized to quarry limestone from the said land for a certain period required
registration.

Seld that, the deeds were leases and as such required registration
under section 17 clause (d) of the Begistra^ion Act (III of 1877) ; that they
were inadmissible in evidence ; and that under section 49 of the Act they could
not legally be held to ** afiect any inunoTeable property comprised"' in them,,
nor could other evidence be given of their contents.



For Appellant. — M. Mohammed Ifasim,

For Respondent. — B. Basdeo Lai,

RusTOMJEB, 0. A. J. C. — ^Tbis is a Second Civil Appeal
from a decree o£ the learned Subordinate Judge of Fyzabad
affirming a decree of tbe Munsif of tbe same place. '

Tbe plaintifiE, Ram Gopal, came into Court on tbe allega-
tion tbat on 3rd Marcb 1891 defendant No. 1 Sbaikb Karam
Husain, had leased out tbe right of digging limestone from 8
katcha bighas of land in plot No. 211 in Ferozpur to Pahal-
wan Khan and others at a rent of Rs. 360. Tbe term of the
lease was ten years. The plaintiff alleged that the lessees subse-
quently sub-let 1 bigba 18^ biswas of the land to him by a
lease executed on 2nd September 1891 reserving a rent of

• Against the decree o£ Pandit Bakht Narain, Subordinate Judge, Fyzabad,
dated 23rd June 1903, confirming the decree of Babu Kali Cbaran Bose,
Munsif, Fyzabad dated 29tb July 1901.



Digitized by CjOOglC



2S2 THE OUDH OASES. [Vot. VII.

Rs. 231 and that possession over this plot vas made over to
him*. He alleged that defendant No. 1 had wrongEullj dug
limestone from 3 biswas of the land sab-let to him dnd had
thus dispossessed him. Chunni Lai was made defendant No. 2
in the suit since he had bought a portion of the limestone
from defendant No. 1: The learned Munsif found that the
plaintifE's claim was proved, so he decreed it witli costs^
On appeal the learned Subordinate Judge came to tlie same
conclusion and he accordingly dismissed the appeal with costs.
This has led to the present appeal on behalf of defendant
No. 1.

The first and the most important point in this appeal is
whether the two deeds by which the rigfatito dig the lime-
stone was first leased out to Pahalwan Khan and others and
afterwards by them to the plaintiff required registration or not.

They have been called deeds of sale right through but as
a fact they must be looked on as pufe and simple leases by
which the right to dig up limestone was demised to the lessees
named in the leases. As leases these documents should un-
doubtedly have been registered under section 17, clause
(d), of the Registration Act (III of 1877).

It has been contended before me that these docomenta
should be looked upon as deeds of sale because all the limestone
that the lessees may be able to recover from the land was solti
to them. Even in that case, looking at the definition of im-
movable property given in s. 3 of of the Registration Act, I hold
that under s. 17, cl. (b), of that Act registration was absolutely
necessary, as quarrying limestone is a benefit which arises oat
of land and as such is "immovable property.'^ These deeds, how-
ever, are not really sale-deeds at all but are merely leases by
which certain rent has been reserved and in consideration of
that rent the lessees have been allowed to dig up limestone for
the term mentioned in the lease. Upon the first point raised
in this appeal, T, therefore, hold that registration of the two
deeds was absolutely necessary.



Digitized by VjOOQIC



Vol. VII.] THE OUDH CASES. 233

As the plaintiflE came into Court under the second of these Karam
deeds, the absence o£ registration renders the deed null and Husain.
Toid and not only were the two deeds not admissible in'^evidence [Ram Gopai.
but under section 49 of the Registration Act they cannot
legally he held to " aflPeot any immovable property comprised"
in the deeds, nor can evidence be given as regards the contents
of the lease executed in favour of the plaintiff which is denied
by defendant No. 1, the chief contending party to this suit.
I hold therefore that the suit fails.

The decree of the learned Subordinate Judge is accordingly
reversed and the plaintiff's claim is dismissed with all costs in
all Courts.



Digitized by VjOOQIC



1904.
May 16.



234 THE OUDH CASES. [Vol, VII.

FIRST CIVIL APPEAL, No. 94 OF 1903.*



Before Mr, Chumier^

Gajraj Singh (Plaintif) v. Raghubab and others (De/etp^
dants).

Suit tn the name of an alleged minor hy. next friend — Minority
disproved — Amendment of plaint — Suit hy next friend when
plaintif not a minor ^ an irregularity.

In a suit instituted in the name of the plaintiff as a minor by hit
mother and next friend the defendants proved that he was not a minor
when the suit was instituted and urged that the suit should on this account be
dismissed. It was proved that the plaintiff was cognizant of and approved of
the institution of the suit and went with the next friend to instruct the
pleader who drew up the plaint.

Held that, undecthe circumstances there had been merely an irregularity
which could be cured by amendment of the plaint and removal of the name
of the next friend.



•For Appellant. — M. Mohammed Nasim.

For Respondents. — Mr. J. M. Jackson.

Chamibr, A.J. C. — ^Thissnit was instituted on March 12th
1903 in the name of Gajraj Singh as a minor by his mother and
next (riend Masammat Khemni. The defendants pleaded inter
alia that the plain ti£E was not a minor when the suit was insti-
tuted and urged that the sifit should on this account be dis-
missed. The defendants adduced evidence which if true shows
that the plaintiff completed his 18th year on January 19th 1903
i. e., about seven weeks before the suit was instituted. The
Subordinate Judge believed this evidence and dismissed the
suit. The plaintiff's next friend has appealed to this Court
contending that the evidence adduced by her should have
been preferred to that of the defendants and that even if the
Subordinate Judge's view of the evidence is correct the suit
should not be dismissed but leave should be given to amend the
plaint.

* Agaiast the decree of Pandit Tribhuan Nath Sopori^ Subordinate Judge,
Hardoi, dated 14th July 1903.



Digitized by VjOOQIC



Vol. VIL] THE OUDH CASES. 235

Upon the qnestioif of fact I think that the Subordinate Gajraj^ Singh
Judge was unquestionably right. The evidence adduced by the Raghubar
defendants is clear and consistent, while the statements of the
plaintiff^s mother and her witnesses are open to all the object-
ions noted by the Subordinate Judge.

Upon the question of law there is as the Subordinate
Judge has pointed out a conflict between the decision of the
Calcutta High Court in Taqui Jan v. Obaidulla (1) and
the decision of the Allahabad High Court in Sheorania
V. Bharat Sinffk (2) but he has not noticed the case of Bkulai
V. SKeo Balak (3) in which Mr. Spankie held that as the suit
bad been instituted with the knowledge and by the authority
of the plaintifE the plaint could be amended when the Court
found that the plaintiff was not a minor. The plaintiff in the
present case says, and I see no reason to doubt the truth of his
statement, that he went with his mother and uncle to instruct
the pleader who drew up the plaint. He is now admitted-
ly of full age and he says that he is anxious to carry on the
suit. I am unable to distinguish this case from the case
decided by ^r. Spankie and having considered the argu-
ments addressed to me and the cases to which my attention
has been drawn I have come to the conclusion that I ought to
follow the decision of Mr. Spankie in preference to that of the
Allahabad High Court. The three cases above-mentioned are
I believe, the only reported decisions which apply exactly to the
present case but there are several cases in which a minor sued
or was sued as if he were an ajult and the Court on the mistake
being brought to notice allowed the record to be amended [see
Flight V. Bolland (4) ; ea; parte Brocklehanh (5) ; PaAkh v.
Ram Lai (6) and Beni Ram v. Ram Lai (7)]. In other cases
the absence of a guardian ad litem or next friend or want
of a formal order under s. 443, Civil l^rooedure Code,
has been treated as a mere irregularity which cocdd be

(i) I. L. R., 2i Cal., 866. (2) I. L. R. 20 AU., 90.

(3) 6 O. C, 365. (4) 4 RusseU 298 S.C, 28 Rev. Rep. 101.

(6) L. R., 6 Cb. Div. 368. (6) F cm. P. J. 1884 p. 262.

(7) I. L. R., 13 Calc, 189.



Digitized by VjOOQIC



236 TJIE OUDH CASES. " [Vol. VII

Oajraj Singh ,

V. waived. [See Net Lai Sahoo v. Sheikh Kareem Bux (1) ; Rama-

and others, chart v. Duraisami (2) Kamalakshi v. Ratnasami Chetti (3)

Walian v. Banke Behari Per shad Singh (4)]. In Sham Krishna

v.i?amZ?a« (5) where two of the plaintiffs sued by a person

who had no right to act as their next friend the learned Judges

made certain observations which suggest that minors who are

not represented by a next friend or who are represented by a

next friend or who are represented by a person who has no right

to act as their next friend ought not to be considered to

have been joined as parties at all, but I doubt the correctness

of this view; it has often been held that it is the minor and not

the next friend who is the party and that the object of having

a next friend is to give security for costs to the defendant.

It was pointed out in ex parte Brocklehank that there is no
reason why a minor should not himself take steps to protect
bis interests but it is the right of the defendant to have a next
friend appointed. Now if the institution of a suit by a minor
without a next friend is no more than an irregularity which can
be waived or cured by amendment, I do not understand why
the institution of a suit in the name with the knowledge and by
the authority of an adult person should be treated as a nullity
merely because that person is described as a minor. In my
opinion there is in such a case no more than an irregularity
which can be cured by amendment and I am not at all
certain that there is anything more than an irregularity even
if the plaintifE is not shown to have authorised the institution
of the suit.

I accept this appeal, set aside the decree of the Court
below and remand the suit for trial on the merits. The plaint
may be amended by the removal of the name of the next
friend but the plaintiff will pay all the defendant's costs in-
curred up to this date here or in the Court below.

(1) I. L. R.23 Calc, 686. (2) I. L. R. 21 Mad., 167.

(3) I. L. R. 19 Mad., 127. (4) I. L. R. 30 Cal. 1021. P. C.

(5) 1. L. R. 20 All. 162.



Digitized by VjOOQIC



Vol. Vir.] THE OUDlI CASES. 237

FIRST CIVIL APPEAL, No. 24 OF 1904. •



Before Mr. Wells.



NASlR-CL-RAHMAjr and others (Defendants) v, NaWab Ali i,„„ ,'-

tl ULY xO»



(Flainti/.)



Pre-emption, suit for — Sale of jyroperty more than that entered
in the notice — A^it X VIII of 1876, sections 10 and 11,



The appellants purchased certain lanil and house property from the respon-
dent's brother M, Previoas to the sale M gave the respondent a notice under
section 10 Act XVIII, 1876, to the effect that he was going to sell his Zcmiu-
dari share for Rs. 6^865, excluding from the sale his dwelling house and two
orchards. The respondent refused to take the property at the price named
and then his brother sold that property plus one of the orchards and his
dwelling house, etc» The respondent ckimed pre-emption on the ground that
the property sold was more than that entered in the notice.

Held that, the notice on the respondent was not a good notice and the
respondent did not lose his right of pre-emption through section 11, Act
XVIIl of 1876.



For Appellants. — B. Basdeo Lai.

For Respondent. — Hon. Rai Bahadur Sri Earn and B.
liamapat liam.

Wells, 0. J. C» — The facts of this case are that the
appellants purchased certain land and house property from the
respondent's brother Mazhar Ali. Previous to the sale Mazliar
Ali gave Nawab Ali a notice under section 10, Act XVIII of
1876, to the effect that he was going to sell his zemindari share
for Bs. 6,865, excluding from the sale his dwelling house,
Baji Sahib's house and two orchards. The respondent refused
to take the property at the price named and then his brother
sold, not the property he said in the notice he was going to
sell, but that property plus one of the orchards and his dwell-
ing house, subject to his own right to occupy it for life.

♦ Against the decree of M. Jwala Prasad, Subordinate Judge, Bai-a Banki,
dated 19th December 1903.



Digitized by VjOOQIC



238

RahmLn^^d Thereupon
others

V,

Nawab Ali,



THE OUDH CASES.



[Vol. VII.



the respondent claimed pre-emption and ha^
got a decree on the ground that the property' sold was more
than that entered in the notice.

In appeal it has been contended that the Court was over
technical and that the plaintiff cannot succeed without proving
that the price stated in the notice was not fixed in good faith ;
and that there were only certain minor variations between the
property in the notice and the property sold.

These are all futile pleas. Section 10 of Act XVIII of
1876 provides that when a person proposes to sell any
property he shall give notice of the price at which he is williLg
to sell such property. This obviously means that he must enter
correctly in the notice all the property which he proposes to
sell, so that persons having the right of pre-emption can decide
if they care to take that property at that price. Supposing
that a man intimated that ho was going to sell 500 biglias
of land for Es. 5,000 and the pre-emptor declined to
take it at that price, and then the vendor sells 750 bighas
at Bs. 5,000, can it be contended for a moment that the
notice was a good one and the right of pre-emption has
been lost by the pre-emptor not purchasing within three
months ? Obviously not. The pre-emptor might have been
quite willing to pay Rs. 5,000 for 750 bighas though not for
500. In the present case he might have been quite willing to
pay the sum asked if he had been led to understand that the
house and garden would be thrown in with the zemindari.

The notice on him was therefore not a good notice, anJ
the pre-emptor did not lose his right of pre-emption through
section 11.

The question of price does not under the circumstances
arise.

I dismiss the appeal with costs.



Digitized by VjOOQIC



Vol. Vrr.] THE OUDH (JASES. 239

PRIVY COUNCIL.



On appeal from llie Court of the Judicial Commissioner of OudL



Thakurain Jaipal Kunar and another (Defendants) v. P- C. *
Bhaiya Indar Bahadur Singh (Plaintif). t?^^^^k

i; SB* ^v*

Declaratory decree — Reversioner^ suit 6y, against Talukdar*s
widow — Discretion of Court — Specific Relief Acty (/ of 1877)
,v. 42^ Oudh Estates Act (/ of 1869).



7. 5 died on the 4th June 1877 possessed of a taluka, govornod by the
Dudh Estates Act (I of 1869). He left three widows and the first appellant as
the first married of the widows succeeded to the taluka. The other widows
subsequently died. On the 25th December 1896 the first appellant executed a
will by which she purported to declare the second appellant, her sister^s son,

as her heir and successor to the estate, and the will was subsequently duly
registered. The respondent sued the appellants, alleging himself to be the
tiext reversionary heir to the estate. He contended tkat the first appellant*s
will was invalid for the purpose of transfering the estate, and he asked for a
declaratory decree to that effect. The appellants denied that the first appel-
lant was in possession as a Hindu widow and contended that she was absolute

owner of the estate under an oral will of her husband, and that the mere
execution of a will did not give the respondent a cause of action to obtain a
declaratory decree. The Court of first instance granted the decree as prayed,
and that decree was affirmed on appeal by the Court of the Judicial
Commissioner.

Under s. 42 of the Specific Relief Act, 1877, a daim to a declaratory idecree
is not ) matter of right but rests with the judicial discretion of the Courts.
Considering the circumstances of the present case it was held that the decisions
of the Courts below made in the deliberate exercise of a discretion entrusted to
them by law should not be interfered with*



Sir Arthur Wilson : — This is an appeal against a decree
o£ the Court oE the Judicial Commissioner of Oudh, which so
{ar as is now material affirmed the decree of the Subordinate

*Frcsent :— Lord Davey, Lord Bobertaon and Sir ^thor Wilwo,



Digitized by VjOOQIC



240 THE OUDfl CASES. [Vol. VIL

jS^Ku^ ^°^S^ ^^ Bahraich. The point raised is a short one. Indarjit
«nd another Singh died on the 4th June 1877, possessed of the talaka of
Bhaiya Indar JMustafabad,»a taluka, governed by the Oudh Estates Act (I of
Singh. 1869). He left three widows, and under s. 22 (7) of that Act
the first appellant as the first married of the widows succeeded
to the taluka ; the other widows have since died. On the 25th
December 1896 the first appellant executed a will by which she
purported to declare the second appellant, who is her sister's son,
as her heir and successor to the estate ; and this will was regis-
tered on the 2Ed January 1897.

Xhe respondent filed the present suit againt the appellants
in the Court of the Subordinate Judge of Bahraich. He alleged
himself to be the next reversionary heir to the estate, and he
set out the pedigree upon which he based his claim to that
character. He stated the will of the first appellant, and his
contention that it was invalid for the purpose of transfering
the estate, and he asked for a declaratory decree to that
effect.

The appellants by their joint written statement denied
that Indarjit died intestate, and denied that the first appellant
was in possession as a Hindu widow. They submitted that the
mere execution of a will did not give the respondent a cause
of action to obtain a declaratory decree. They traversed in
detail the respondent's pedigree. And they alleged that
the first appellant was absolute owner of the estate under
an oral will of her husband. On all the points thus raised
issues were settled. At the trial the evidence was mainly
directed to the proof of the respondent's character as next
reversionary heir. The Subordinate Judge found the necessary
issues in the respondent's favour, and granted a declaratory
decree as prayed ; and that decree was affirmed on appeal by
the Court of the Judicial Commissioner.

In both the Courts in India it was realised that under
s. 12 of the Specific Relief Act, I of 1877 a claim to



Digitized by VjOOQIC



Vol. VII.J



THE OUDH CASES.



241



a declaratory decree is not a matter of right, but that it
rests with the judicial discretion of the Courts; both Courts,
liowever, held that in the exercise of their discretion in the
present case the decree ought to be made. The only point raised
by the present appeal is that the Courts in India exercised their
discretion improperly.

Their Lordships would guard against being thought to
lay down that the execution of a will by a limited owner, such
as a Hindu widow, as a general rule, aflEords a suflScient reason
for granting a declaratory decree. They are not prepared to
<Joncur in all the reasoning of the learned Judges in the
present case. And if they had been sitting as a Court of
first instance they would have felt no little hesitation before
making the decree that has been made.

But their Lordships are always slow to reverse the
decisions of Courts below made in the deliberate exercise of a
discretion entrusted to them by law. And in the present case
there are special reasons why they should hesitate before so
interfering at the instance of the present appellants. The will
of the first appellant, taken by itself, left it open to doubt on
what ground she relied in what she was doing. But when the
appellants came to file their written statement, and thereby to
define their position and put their own interpretation upon
what had gone before, there was no ambiguity left. It was
made clear that they relied upon an alleged title in the first
appellant inconsistent with any prescHt or future rights of the
respondent or any other reversionary heir. And further, the