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

appellants have no legitimate interest in this appeal except in
respect of costs ; and it is clear that the costs which have been
incurred have been caused by the course taken by them through-
out the case.

Their Lordships will humbly advise His Majesty that this
appeal should be dismissed. The respondent not having appear-
ed, there will be no order as to costs.



Tfaakumin
Jaipal Kunar
and another

r.

Bhaiya Indar

fiahadur

Singh.



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242 THE OUDH CASES. [Vol. VIL

j^^^Kumir ^^ order to guard against any possible misapprehension

and another hereafter their Lordships think it well to point out that, although
Bhaiya indar in the present case issues have necessarily been raised and
^Sineh^ decided as to the position of the respondent as noxt reversion-
ary heir to the taluka, those issues have been raised and
decided only between the parties to the suit, and that whenever
the inneritance opens by the death of the widow the present
decision will have settled nothing as to who should succeed.



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Vol. VII.J THE OUDH CASES. 2i3

FIRST CIVIL APPEAL, NO. 86 OF 1903. *



Before Mr. Wells and Mr, Chamier.



Payaz HossBiN Khan (Defendant) v. M. Prag Narain 1903.
(Plaintiff) and Hamid H088EIN Khak and another (Defendants). Aug. 10-



Purchaser in execution of decree on prior mortgage when sale
takes place after sale on subsequent mortgage — Mortgaged property
sold twice in execution of decrees on prior and subsequent mort-
gages — Prior and subsequent mortgages — Transfer of Property
Act s. 85 — Possession^ suit for.



A purchaser at a sale held in ezecvition of a decree for sale on a first mort-
gage made by a person -in possession of the property, the decree having been
obtained in a suit brought in strict accordance with section 85 of Act IV of
1882, is entitled to possession as against a purchaser at an earlier sale held in
execution of a decree for sale obtained in a suit brought on a second mortgage ia.
defiance of the rale laid down in that section.



For Apprllant. — Mr. Moliammed Siddique.

For Respondent I. — Babus Basdeo Laly Ishri Persliad and
Bimla Pershad Bliattacharjee.

For Respondent III. — P. Mahhan Lai.

Chamier, A. J. 0. — It is necessary to state at the outset
oE this judgment that Mr. Mohammed Siddique on behalf of the
appellant Fayaz Hossoin Khan expressly abandoned the conten-
tion put forward by his client in the Court below that the docu-
ment of April 9th 1887 wasa]deed of mortgage. Mr. Mohammed
Siddique atlmitted that his client was not entitled to any priority
or advantage by reason of the fact that one of the decrees in
execution of which Fayaz Hossein purchased was passed upon

* Against the decree of M. Muhammad Tajuddin, Subordiuate Judge,
Biswan, District Sitapur, dated 4th July 1903,



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2U



THE OUDD CASES.



[Vol. VI r.



rrtya^



Khan

V,

M. Prag

Karain and

Hamid!

Hoasein Khan

«Dd another.



the deed of April 9th 1887. In this appeal therefore that deeJ
will be left out of consideration altogether and the facta may
be stated as follows : —

On June 14th 188? Ham^id Hossem tier the owner of the
village in question mortgaged it to Newal Kishore adoptive
father of the respondent Prag ]l!farain. On July 8th 1891
Newal Kishore brought a suit on his mortgage and on AugusI
2.^rd 1892 obtained a decree for sale which was made absolute
on November 29th 1895. The sum mens in that suit
was not served on Hamid Hossein till September 12tk 189 L
Meanwhiie on JuJy 15th 1891 the owner mortgaged the
village again to the respondent Muzaffar Beg who sued for
interest on tl>e mortgage and obtained a decree for sale which
was made absolute in January 1897. To that suit Newal
Kishore ought to have been but was* not mmle a party- On
December 20th 1900 the property was sokl in execution of
Muzaffar Beg's decree and purchased by the appellant Faya&
Jlossein who strcceeded in getting possession and on February
21st 1901 the property was sold in execution oE Newal KisboreV
decree and purchased by Prag Narain who IkuI by this time
succeeded his adoptive father as decree-holder, so that the sale
on the earlier mortgage took place after tlie sale on the later
mortgage.

In the present suit Prag Narain claiuw possession €>f the
property. Tire Subordinate Judge decreed the claim upon the
ground that the mortgage of July 1891 having been made
after the institution of the suit upon the mortgage of 1889 wa»
inoperative a^ against rights actjuired under tl>e dect-ee passed
in that suit. The appellant contends that as- tlife respondent
Prag Narain did not piead that the mortgage of July 1891 wa»
invalid as having been made during tl>o suit on the mortgage
of 1889 i\ie Court slK>uld not have dismissed the suit on thai
ground. If tl>e application of the doctrine of lis pendens depends
upon thfe question whether or not the summons had been served
W the defendant ILuuid Hossein before the UK)rtgage in favor



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Vol. VII.] THE OUDH CASES. 245

o£ MuzafiFar Beg then I think that the appellant was placed i^^^i
at a disadvantage by reason of the absence of a specific plea on Khan
the part of the respondent Prag Nafain. This was the view M. Prag
which we took at the hearing of the appeal when we allowed Haimd
the appellant to refer to the file of the suit brought upon the f^^'^^^^he"
first mortgage and to shew us that the summons was not in
fact served upon the defendant Hamid Hossein until September
12th 1891 i. e, about two months after the mortgage. The
fact remains that the mortgage in favour of Muzaffar Beg was
executed after the institution of the suit on the mortgage of
1889 and the respondent Prag Narain is entitled to make what
tise he can of that fact which is admitted and was clearly
brought out in the evidence adduced in the Court below.

It was contended on behal f of the appellant that the right
to possession depended upon the date of the sale and therefore
Fayaz Hossein having purchased in December 1900 was
entitled to retain possession as against Prag Narain who pur-
chased in February 1901. In support of this contention we
were referred to a number of cases such as Nanack Chand v*
Teluckdye Koer (1) and Jugul Kissore v. Kartic Chunder (2)*
In my opinion such cases are wholly irrelevant. In all of
them two or more mortgages existed at the date of both suits
and the decisions proceed upon the ground that each mort-
gagee ought to have impleaded the other mortgagee or mort-
gagees each mortgagee having or being deemed to have at the
date of his suit notice of the claims of the other mortgagee or
mortgagees. In the present c^se the suit upon the earlier
mortgage was brought in strict compliance with the law, the
second mortgage not being in existence at the date of the suit.
It may be, though it is not pleaded, that the first mortgagee
Newal Kishore obtained notice of the mortgage to Muzaffar
Beg in the course of the suit but that did not oblige him to
make Muzaffar Beg a party and on the other hand Muzaffar
Beg must have had notice of the mortgage to Newal Kishore
for before advancing his money he must or ought to have

(1) 1. L. R., 5 Cnl.. 265, (2) I. L. U., 21 CaL, IIC.



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246



THE OlIDH OASES.



[Vol. VII.



Kayaz

Hosseiii

Khan

r.

M. Piag

Narain and

Hamid
Hossein Khan
and another.



searched the registers, and in all probability he obtained
notice o£ Newal Kishore's suit. I inyselE doubt the soandness
o£ the decision that a suit does not become contentious within
the meaning of s. 52 Act IV, 1882 until the summons is
served on the defendant but assuming that it does not
ordinarily do so it is obvious that a person who has express
notice of the suit cannot avoid the effect of the decree in the
suit on any such ground. In the present case Fayax
Hossein who is I may mention the son of Hamid Hossein
purchased with full notice of the suit brought and decree
obtained by Newal Kishore for Fayaz Hossein objected
to the execution of Newal Kishore's decree and brought
a suit against Newal Kishore when the objection was
thrown out. I am disposed to hold that the rule of lis
pendens applies to this case notwithstanding that the mortgage
to Muzaffar Beg was made before the service of the summons
on the mortgagor in the first mortgagee's suit but whether
that is a correct view or not I hold that a purchaser at a sale
held in execution of a decree for sale on a first mortgage made
by a person in possession of the property, the decree having
been obtained in a suit brought in strict accordance with sec-
tion 85 of Act IV of 1882, is entitled to possession as against a
purchaser at a sale held in execution of a decree for sale obtain*
ed in a suit brought on a second mortgage in defiance of the
rule laid down in that section.

Prag Narain purchased the rights of the mortgagor as they
were at the date of the first mortgage and there can be no
doubt that the mortgagor was then entitled to possession. The
cases of Ilargu Lai v. Gobind Rai (I) and Madan Lai v. Bhag*
wan Das (2) in which purchasers at sales held in execution of
a decree on a first mortgage were held to be not entitled to
possession are distinguishable upon the ground that the decrees
obtained by the first mortgagees in those suits were not binding
on the persons in possession who, or whoso predecessors in
interest, ought to have been joined as parties to the suit on



0) I. L. R., 19 AU., 5U.



(2) I. L. U., 21 All.. 235.



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Vol, mo THE OUDH CASES. 247

the first mortgage. There is no reported case that I am aware HossetnKhan
oi which supports the contention o£ the appellant in the present ^ p
STiit. It appears to me that if we were to accept the appellant's Narain and
contention in the present suit there might be no limit to the HoflseinKhan
number of suits required to enforce a first mortgage. Assum- *^^ another.
ing, without, deciding, that the appellant Fayaz Hossein can
now redeem the first mortgage I think that he should not be
allowed to do so in the present suit first because he did not
offer to do so in the Court below and his conduct has in other
respects been such as to disentitle him to any consideration and
secondly because there remains not only the question whether
Fayaz Uossein can redeem the first mortgage but also the ques-
tion whether Prag Narain cannot also in turn redeem the
the second mortgage (See I. L. R., 28 Bombay 153). The
latter question has not been considered at all and no argument
waK adduced to us upon it. Moreover the materials on the
record are not sufficient to enable us to make up the requisite
acconnts and pass a decree which will settle the question
between the parties. I would dismiss the appeal with costs.

Wells, 0. J. C. — I concur.



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248 THE OUDH CASES. [Vol. VH.

PRIVY COUNCIL.



On appeal from the Court of tlte JudiekU Committioner of Ovdh.
« . G. ^^^^^^^^

1904.
Mat 14. Thakubain Balbaj Eunwab andjanother {Defendants) v.

Rab Jagatpal Sikoh {Plaintiff).



Oudh Estates A<^ (I of 1869) ss. 8, 13, 14, 15, and 22
€l. (6) construction — " Would have succeeded " in ss. 13, 14 and
15, meaning of — Sons of taluqdar hy different mothers-^
" Brothers, " meaning of — Marginal notes and sections of Ads.



P a taluqdar, who died in 1866, and whose name was entered after his
•death in Lists I and II mentioned in section 8 of the Oudh Estates Act (I of

1869), made over his estate by will to his younger son P, who died in f^
intestate, leaving two widows, the appeUants, but no male issue. The r^bpon-
dent, the son of B'b elder brother, the eldest male lineal descendant of P, sued

the appellants for proprietary possession of the estate on the all^ation that
on B'fi death, intestate, he came in to the property under clause (6) of section 22
of the Act.

Held^ that section 14 did not apply and therefore the respondent was not
entitled to succeed to the estate under clause (6) section 22 of the Oudh
Estates Act. The expression * would have succeeded* in sections 13 and \i
must be confined to persons in the special line of succession that would
have been applicable to the particular case if the transferor or testator had
died intestate and the death had occurred at the date of the transfer or,
in the case of a gift by will, at the time when the succession opened..

Held further, that B was not a " legatee** within the definition of that term
in the Act of 1869, as the bequest in his favour, if it took effect, came into
operation before that Act was passed.

Held also, that jPs eldest son, though bom of a different mother, was
a brother of B within the meaning of the word " brother** in clause (6) of
section 22.

Marginal notes to the sections of an Act cannot be : referred to for the
purpose of construiug the Act.



* Present :— Lord Macnaghten, Lord Lindley and Sir Arthur Wilson.



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Vol. Vn.]



THE OUDH CASES.



249



Lord Macnaghtbn. — This appeal raises a question under
the Oudh Estates Act, 1869, as to the succession to property
iwrhich formerly belonged to Rae Pirthipal Singh, "who
died in June 1866, and whose name was entered, after his
death, in List I and List II of the lists mentioned in section &
of the Act. List I is a list of all persons who were to be con«
sidered taluqdars within the meaning of the Act. List II is a
" list of the taluqdars whose estates, according to the custom
" of the family on and before the 13th day of February 1856,
"ordinarily devolved upon a single heir."

The property in question was made over by Pirthipal
Singh by will (as both the Courts below have held) or by
transfer under a family arrangement (as the appellants con-
tend) to his younger son Bisheshar Bakhsh. Bisheshar died
in August 1890 intestate, leaving two widows but no male
issue.

The rival claimants to the property are (1) the son of
Bisheshar's elder brother, the eldest male lineal descendant of
Pirthipal Singh, who was plaintifiE in the suit and is respondent
to this appealj and (2) the two widows of Bisheshar who are
appellants. They were defendants in the suit, and succeeded
in the Court of the Subordinate Judge.

The sections of the Act which have the most direct bear-
ing on the question in dispute are the following : —

*^ No talukdar or grantee, and no heir or legatee of a talaqdar or
*' grantee, shall have power to give or beqaeath his estate, or any
** portion thereof, or any interest therein, to any person not being
"either—"

(1) " A person who, under the provisions of this Actor nnder the

" ordinary law to which persons of the donor's or testator's
"tribe and religion are subject, would have succeeded to
" such estate or to a portion thereof, or to an interest therein,
** if such taluqdar or grantee, heir or legatee, had died
" intestate ; or

(2) " A younger son of the taluqdar or grantee, heir or legatee, in

'* case the name of such taluqdar or grantee appears in the
'* third or the fifth of the lists mentioned in section eight,
** except by an instrument of gift or a will executed and attested, not
** less than three months before the death of the donor or testator, in



Thakuraibr

Balraj

Eunwar and

another

r.

Bae Jagatpal

Singh.



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250



THE OUDH CASES.



[Vol. VII.



Thaknrain

Balraj

Kunwar and

another

V,

Bae Jagatpal
SiDgh.



" manner herein provided in the case of a gift or will, as the case may
** be, and registered within one month from the date of its execution."

V, — TtantfePB and BequuU,

" 14. If any taluqdar or grantee shall heretofore have transferred or
** bequeathed, or if any taluqdar or grantee, or his heir or legatee, shall
** hereafter transfer or bequeath, the whole or any portion of his estate
*^ to another taluqdar or grantee or to such younger son as is referred to
" in section 13 clause (2), or to a person who would have succeeded,
" according to the provisions of this Act, to the estate or to a portion
*' thereof if the, transferor or testator had died without having made
*' the transfer and intestate, the transferee or legatee and his heira
*• and l^atees shall have the same rights and powers In regard to
" the property to which he or they may have become entitled under
" or by virtue of such transfer or bequest, and shall hold the same
** subject to the same conditions and to the same rules of succession as
*' the transferor or testators.

'• 15. If any taluqdar or grantee shall heretofore have transferretl
" or bequeathed, or if any taluqdar or grantee or his heir or legatee shall
*' hereafter transfer or bequeath to any person not being a taluqdar
" or grantee 'the whole or any portion of his Estate, and such person
" would not have succeeded, according to the provisions of this Act,
" to the estate or to a portion thereof if the transferor or testator
" liad died without having made the transfer and intestate, the transfer of
*' and succession to the property so transferred or bequeathed shall be
" regulated by the rules which would have governed the transfer of and
*' succession to such property if the transferee^ or legatee had bought
" the same from a person not being a taluqdar or grantee."

Besides these sections it is necessary to refer to section
22, which provides for intestate succession in the case of the
death of any taluqdar or grantee whose name is inserted in
List II, List III, or List V, or the heir or legatee of such
taluqdar or grantee. A number of cases are dealt with sepa-
rately and in order, beginning with the case where the deceased
leaves an eldest son. In that case, clause (I), the estate is

to descend "to the eldest son and his male lineal descend-

** ants subject to the same conditions and in the same manner
" as the estate was held by the deceased." Then after dealing
in separate clauses with other cases, including the case of an
adopted son, the section provides, in clause (6), that in default
of such adopted son the estate is to descend " to the eldest and
" every other brother of such taluqdar or grantee, heir or
" legatee, successively according to their respective seniorities



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Vol, VIL]



THE OUDH CASES.



251



" and their respective male lineal descendants subject as afore-
« said."

Now the contention on the part o£ the respondent is that
on Bisheshar's death, intestate, he came in to the property
under clause 6 of section 22. The appellants on the other
hand, maintain that Bisheshar was not legatee of Pirthipal
Singh within the meaning of that word in the Act of 1869,
and that, whether he was or was not a legatee in the ordinary
sense of the word, the case is governed by section 15 and that
accordingly, on the death of Bisheshar intestate, the property
devolved as it would have devolved if Bisheshar had bought
it from a person not being a taluqdar or grantee.

The learned counsel for the respondent argued quite
correctly that section 15 must be read in connection with
sections 13 and 14. His contention was that Bisheshar was a
person who would have succeeded, within the meaning of
section 14, if Pirthipal had died without having made a transfer
of the property, and intestate.

The real question is what is the meaning of the words
*' would have succeeded " in sections 18 and 14. Of course if
Bisheshar's case falls within section 14, section 15 can have no
application to it.

Their Lordships think that the learned Judges in the Court
of the Judicial Commissioner have gone too far in holding as
they did " that any person mentioned in section 22 as a
" possible heir may be said to be * a person who would have
*' * succeeded according to the provisions of the Act to the
" * estate if the testator had died intestate ' within the meaning
" of section 14." They think that the expression " would have
succeeded " must be confined to persons in the special line
of succession that would have been applicable to the particular
case if the transferor or testator had died intestate and the
death had occurred at the date of the transfer or, in the case of
a gift by will, at the time when the succession opened. In
short, they think that the expression " a person who would have
*' succeeded according to the provisions of the Act" is equivalent



Tbaknraitt

Balraj

Eunwar and

another

V.

Bae Jagatpal
Singh.



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252



THE OUDH CASES.



[Vol. VIL



Thakurain

Balraj

Eanwar and

another

V,

fiae Jagatpal
SiDgh.



to " the person or one o£ the persons to whom the estate
" would have descended according to the provisions of the
^' special clause o£ section 22 applicable to the particolar
" case." Their Lordships do not agree with the view of the
learned counsel for the respondent that clause 2 of section 13
was introduced by mistake and may be disregarded altogether.
On the contrary they think that that clause throws a good deal
of light on the words in dispute. A younger son of a taluqdar
named in List III or List V is no doubt among the possible
heirs of his father but he is not within the prescribed line of
succession if the father leaves an eldest son or a male lineal
descendant of an eldest son.

The construction which commends itself to their Lordships
gives a meaning to every part of the sections under considera-
tion. If a transfer or bequest is made to a person in the
prescribed line of succession, there is reason for placing the
transferee or legatee in the same position with regard to suc-
cession to the estate as the transferor or testator, but if the
prescribed line of succession is broken by a transfer or bequest
of the entailed estate to a person outside the prescribed line, it
seems not unreasonable that the fetter of the entail, such as it
is, should no longer apply to the estate.

There are some minor points which were discussed in the
judgment of the Judicial Commissioners, or argued before
their Lordships, which ought perhaps to be noticed.

Their Lordships have no doubt that Pirthipal's eldest son,
though born of a difEerent mother, was a brother of Bisheshar
within the meaning of the word " brother" in clause (6) of
section 22.

It is well settled that marginal notes to the sections of an
Act of Parliament cannot be referred to for the purpose of
construing the Act. The contrary opinion originated in a
mistake and it has been exploded long ago. There seems to be
no reason for giving the marginal notes in an Indian Statute
any greater authority than the marginal notes in an English
Act of Parliament.



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Vol. VIIO THE ODDH CASES. 253



In their Lordships' opinion it is immaterial to enquire ^*^^^'°

whether Bisheshar took under a will or by transfer. Both Kunwar and

•^ another

the lower Courts have held that the title is derived under a v.

will. The question seems to be one of same difficulty. It is singh.

not necessary to decide it. . It is enough for their Lordships to

say that they are not satisfied that the Courts below are

wrong.

Their Lordships agree with the Judicial Commissioners in
thinking that Bisheshar was not a '^ legatee" within the defi-
nition of that term in the Act of 1869. The bequest in his
favour, if it took efiEect, came into operation before the Act
was passed. He cannot, therefore, be considered a person to
whom property was bequeathed under the special provisions of
the Act.

Their Lordships will humbly advise His Majesty that the
decree appealed from should be reversed, with costs, and the
decree of the Subordinate Judge restored.

The respondents will pay the costs of the appeal.



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p. c. ♦

1903



254 THE OUDH CASES. [Voiu VIL

PEI\r? COUNCIL.



On Appeal from the Court of the Judicial Commissioner of Oudk.



Nov 25 Mohammad Abdus-samad and others (Defendants) tr.

^^- ^^' KuBBAN HusAiN and others (PUUntifs).



Oudh Estates Act^\1869^^ss.\'8 and 10 — Succession ia
taluqdar^s estate not held under sanad by Government — Entry
of taluqdar^s name in lists prepared under Oudh Estates Act
after his deathr-^Mahomedan Law — Interpretation of Statute.



M in his lifetime was a taluqdar, and in May 1868 a sammary settlement
of his estate was made with him. He never obtained any ianad in his life-
time, and his name was never in his lifetime entered in any list of officially
recognised talaqdars. When he died he left his mother and some consins and
two widows; and in March 1866 his mother was reeorded as sole owner with