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

the consent of his two widows and the cousins, nnder whom the reepondent»
claimed. The Oudh Estates Act of 1869 came into operation in Jannaryof
that year, and in Jnly 1869 the name of If came somehow to be entered in two
of the lists directed to be made by the Act. In 1870 the mother died. She
appointed the two widows her saocessois. On their death the respondents,
brother and sist^ of the last soryiving widow claimed one-half of ilfs estate
nnder the Mahomedan Law against the appellants who claimed the whole
estate nnder ifs first wife and nnd^ the Oudh Estates Act, 1869. It was
conceded that the respondents were entitled to a decree unless the saccessioD
was altered by the Act of 1869 and what was done after ifs death.

HM^ that the Coort eonld not constree sections 8 and 10 of the Ondb
Estates Act, 1869 so as to deprive the successors of the estate of a person who
bad died before those sections came into operation of rights which they
acquired on his death. Held therefore, that when M died he had acquired a
pennanent hereditary and proprietary right recognised by the Indian Govern-
ment in the estate in question; but that the succession to them not having
been altered by any #afia4 was governed by the ordinary Mahomedan Law
which was the only law applicable to the case.



* Present :— Lord Macnaghten, Lord Lindley, 8ir Andrew Sooblc, Sir Arthur
WilsoBi and Sir John Bonser,



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THE OUDH CASES.



255



For ApPBLLAln'S. — Mr. G. E. A. Ro9S,
For Respondents. — Mr. Leslie DeGruyther,

Lord Lindlby. — The appellants in this case claim one-half
oF certain estates in Oadh as the statutory heirs of one Martaza
Bakhsh who was a Mahomedan talnqdar and who died on the
18th January 1865. The respondents claim the same half as
his heirs by Mahomedan Law, and it is conceded that they are
entitled to it unless the succession was altered by the Oudb
Estates Act of 1869 and what was done after his death.

Murtaza Bakhsh in his lifetime was a taluqdar, and in
Hay 1858 a summary settlejnent of the estates in question was
made with him,

The Oudh Estates Act, 1869 was founded on, and was
passed to give effect to, certain Orders of the Governor-General
of India made in October 1859 and set out in the first schedule
to the Act. Under those Orders lists were to be prepared of
the taluqdars with whom summary settlements had been made,
and sanads^ t. e. grants, were to be issued to them. Forms of
these sanads were prepared and many were granted.

In January 1862, Murtaza Bakhsh applied for a sanad
from the English authorities and his application was refused.
He never in fact obtained any sanad in his lifetime ; and his
name was never in his lifetime entered on any list of officially
recognized taluqdars.

Under these circumstances it seems plain that when Mur-
taza Bakhsh died, he had acquired a permanent hereditary and
proprietary right recognized by the Indian Government in the
estates in question ; but the succession to them not having
been altered by any sanad was governed by the ordinary
Mahomedan Law which was the only law applicable to tho
case.

The appellants, however, rely on what happened after his
death, and it is necessary to consider what this was. When he
died he left his mother and some cousins and two widows ;
mid in March 1865 his mother's nnme was entered in the



Mohammad

AbduB-Bamad

and others

V.

Eurban

Husain and

others.



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Knrban

Husain and

otbors.



256 THE OUDH CASES. [Vol. VII.

Mohammad Collector's books in substilution for his own, and she was record-

Abtlus-samad . i i

ami others ed as sole owner. This appears to have been done with the consent
of his two widows and the cousins under wlioin the respon-
dents claim. The Estates Act, 1869 came into operation in
January o£ that year and in July 1869 the name o£ the
deceased appears in two of the lists directed to be made by the
Act. How it got there is not known. But there it is. In Novem-
ber 1870 the mother died. She appointed the two widows her
successors, and in April 1871 the names of the two widows who
were in possession were substituted for hers in the Collector's
books. Their right, however, to be so recorded was disputed
by the cousins and litigation ensued ; but both widows died
before it ended and it is unnecessary to refer further to this
matter.

The present suit was instituted in March 1895. The
plaintiffs (now represented by the respondents) were the heirs,
viz,, brother and sister of the last surviving widow, t. e., the
second wife of Murtaza Bakhsh. They claimed under the or-
dinary Mahomedan Law. The defendants (u e. the appellants)
claim under his first wife and under the Act of 1869. The
Subordinate Judge held that the entry of Murtaza Bakhsh's
name in the lists was ultra vires and of no effect ; that the
mother held the estate as absolute owner ; that after her death
the two widows held as absolute owners in equal shares ; that
on the death of the first wife one-half of the estate descended
on the defendants in accordance with ordinary Mahomedan Law,
and that on the death of the second wife her half descended on
the plaintiffs by the same Law. The plaintiffs were content with
this decision but the defendants appealed from it. The deci-
sion was, however, affirmed by the Judicial Commissioner and
the defendants have appealed from his decision.

Their Lordships have no hesitation in affirming iL The
whole case turns on the entry of Murtaza Bakhsh's name in
two of the lists ordered to be made by the Act of 1869. Sec-
tion 10 of the Act compels the Courts to regard such lists as
conclusive evidence that the persons named are talukdars or



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Vol VII.J



THE OUDH CASES.



257



grantees within the meaning o£ the Act. When the listsVeferred
to are looked at, it will be found that there are six lists
(see section 8). Martaza Bakhsh's name is in the first and
third. The entries therefore by sections 8 and 10 are conclu-
sive evidence (1) that he is to be considered as having been a
Taluqdar within the meaning of the Act (see section 2 and
section 8, list I) ; and (2) that he was a taluqdar to whom
sanad had been made declaring that the succession to the
estates comprised in it should be regulated by the rule of pri-
mogeniture (see section 2 and section 8, list III).

These enactments are clear and peremptory, and would
be decisive if they applied to this case.

It is not however, in accordance with sound principles of
interpreting Statutes to give them a retrospective effect. The
Court cannot construe sections 8 and 10 so as to deprive the
successors of the estates of a person who had died before those
sections came into operation of right which they acquired on
his death. Entries of the names of deceased persons in the
lists mentioned in section 8 do not appear to have been con-
templated by the Act, but such entries have no doubt been
made, and they are practically harmless if the names were
already in former lists made under the Orders in Council, or if
the entries do not alter the previously acquired rights of any
one. This was the case in Achal Ram v. Udai Partab Addiya
Pat Singh^ (1). But no decision has been referred to which sup-
ports the contention that the entry of the name of a person who
died before the Act came into force can divest rights previously
acquired on his death. In this case the death occurred in 1865,
and the successors then acquired their rights under the ordinary
Mahomedan Law. The Oudh Estates Act did not come into
operation until 1869 ; and to construe its provisions as altering
the succession would be not only unjust but plainly contrary to
well-settled legal principles.

The able counsel for the appellants endeavoured to
0) 11 Ind., App. 51. S. C. I. L. R., 10 Calc, oil.



Mohammad

Abdus-saraad

and others

r.

Kurban

Uusain and

others.



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258



THE OUDfl CASES,



[Vol. Vn.



V.

Kniban

Husain and

others.



Mohammad t • Mm i ^ • i i

Abdus^mad durmouiit this difficulty by suggesting that there innst have been

ere QQj^Q family arraDgement to the effect that the entries in question
should have been made, and that the succession should be
changed. But there is no evidence from which any such con-
clusion can be drawn. The only evidence bearing on the
subject is the consent of the heirs to the entry of the mother of
Murtaza Bakhsh in the Collector's books shortly after his
death. But when she died, the entry of the names of her two
daughters-in-law was objected to and litigation followed. The
issues settled in the action do not raise the question whether
any such arrangement was in fact come to and their Lordship:^
cannot adopt the suggestion of the learned counsel as a basis
for their decision.

Their Lordships therefore will humbly advise His Majesty
to dismiss this appeal and the appellants must pay the costs*



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K.



â–¼t>i.. VIL] THE OUDU CASES. 251>

SECOND CIVIL APPEAL, No. 220 OK 190L •



Before Mr. Wells and Mr, Rustomjee,



Basawan Singh and others (Plaintiffs) v. Nawab Badshah 1904.
Bahu Begam and others (Defendants). ''^^ ^^•



Redemption^ suit for — Mortgage hy conditional sale — Indian
Limitation Acty Schedule u, art. 142 — Decree of Settlement Court
giving proprietary possession — Revival of claim for redemption
— Act XIII^ 1866 — Adverse possession.



In a suit for redemption the plaintiflB alleged that on July 31, 1846, their
I>redecc880i8 had mortgaged the yillagc for ten years to the predecessor-in-titlc
of the defendants, and they claimed to redeem the mortgage on the ground
that the time fixed for redemption had not expired on the 13th February
1856. The defendants admitted that there had been a mortgage but they
alleged that it was a mortgage by conditional sale for four years only and
by it they bad acquired an absolute title as the money was not paid within
that term. At the 'regular settlement in Oudh, iV; the predecessor of the
defendants, applied for settlement. The plaintiffs* predeeessors set up a
coonter claim, JV*s claim was ultimately decreed by the Chief Commissioner
on October 25th 1863 and formal possession of the Tillage was given to
her by the Beyenao anthorities on May 22nd, 1864, and in the khewat
which was prepared she was entered as proprietor. Subsequently the defen-
dants* predecessors accepted the situation and obtained decrees for Sir on
MaichSth 1865.

Held, that the salt was barred by article 142, Schodolc U of the Indian
Limitation Act.

On the contention of the plaintifb that the Chief Commissioner dismissal
their predecessors* appeal in view of the rules of limitation then in force and
that by Act XIII of 1866 their claim was revived and must be heard on its
merits, it was held that the plaintiffs* predecessors did not sue then for
redemption of the mortgage so they could not say that such a suit of theirs
was dismissed on the ground that it was barred by the rules of limitation then
in foroe ; and not having, while Act XIII of 1866 was in force, taken any
stepf to revive their former claim to settlement and have it heard on its meril«,
the plaintiffs could not now plead that that enactment had made the deci-
sions of the Settlement Courts against them wholly inoperative.

* Against the decree of A. Sabonadiere fisq., District Judge, Hardoi, dated
4th March 1901 reversing the decree of Babu Uem Chandra Sen. Subordinate
Judge, Uaao, dated 20th October 1900.



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^0



THE OUDH CASES.



[Vol. VIl.



Basawan

fiingh and

others

r.

Nawab

Badshah

B ahu Begatn

ADd others.



For Appellants. — Messrs. St. George H, S. Jackson^ and
A. P. Sen and Babu Ram Chandra.

For Respondents. — Mr. F. Lincoln^ M. Mohamed Nasirriy
Babus Basdeo Lal^ Putto Lai and
Har Gobind Dass.

Wells, O. J. C. — This is an appeal from a decision of the
District Judge of Hardoi, reversing a decision of the Subordi-
nate Judge of Unao, who had decreed the plain tifEs' suit for
redemption of the village of SahraWanon payment of Rs. 1,200.

The plaintiffs are representatives of the old zemindars.
They alleged that on July Slst, 1846 their predecessors had
mortgaged the village for 10 years to Malka Kishwar Saheb,
the predecessor-in-title of the defendants. The plaintiffs there-
fore claimed to redeem the mortgage, on the ground that the
term fixed for redemption had not expired on the 13th February
1856.

The defendants admitted that there had been a mortgage in
1253 Fasli (1845-46) date not specified, for Rs. 1,200. But
they alleged that it was a mortgage by conditional sale for four
years only and by it they had acquired an absolute title, as the
money was not paid within that term. They also pleaded
that the suit was barred by limitation under art 142 of the
second schedule of the Limitation Act.

I think that it is not necessary to consider any question in
the case except this one of limitation.

At the regular settlement io Oudh, the predecessors of the
plaintiffs, Nawab Afsar Bahu Begam, daughter of Malka
Kishwar Sahib and two other persons applied for settlement.
At that time the Settlement Courts in Oudh had power to
decide questions of title and settlements were made upon those
decisions. All the last three of the four claimants for (settle-
ment alleged a moitgage from the first sot, t. ^., the plaintiffs'
predecessors. After passing through the Courts of the Assistant
Settlement Officer, the case came before the Settlement Com-
missioner, Mr. Charles Currie, on appeal by Nawab Afsar Bahu
Begam Saheb.



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Vol-. VII.]



THE OUDH CASES.



261



As appears from Ex. D5, one o£ the grounds o( her appeal
was tbat the respondents, t. e» the old zemindars, had admitted
her claim before the Settlement Officer and had filed before him
a copy of the mortgage deed for four years, on the expiration
of which her title had become absolute.

In a razinamay Ex. D3, filed in the Court of the Settle-
ment Officer by some of the plaintifiEs' predecessors, a reference
is also made to the mortgage having become a sale.

The Settlement Commissioner, in an order dated May 15tb
1868, on this appeal, considered principally which of the three
last claimants was the real mortgagee from the zemindars and
deeided this point in favour of the mother of the appellant.
In this order there is a reference to a copy of the mortgage-
deed in her favour filed by the zemindars, so there was some
basis for the statement in the grounds of appeal quoted above.
After ordering some further inquiry the Settlement Commis-
sioner disposed of the case on August 3, 1863.

In neither of hb orders is there anything to indicate
that he considered the question whether the mortgage was
for 4 or 10 years. But he must have done so apparently,
because, after rejecting the claim of the three other alleged
mortgagees, he reversed the order of the Settlement Officer
settling with the old zemindars, and decreed the proprietary
right in Mauza Sahrawan to Nawab Afsar Bahu Begam Saheb,
from whom the present respondents' title is derived. An
appeal was made to the Chief Commissioner by some of the
old zemindars, see Ex. 044, and Sir Charles Wingfield rejected
this appeal. The village therefore, rightly or wrongly, stood
decreed in proprietary possession to Nawab Afsar Bahu Begam.

In pursuance of this decree on May 22, 1864 formal
possession was given of the village by the Revenue authorities
to Nawab Afsar Bahu Begam's agents, and in the khewat
which was prepared she was entered as proprietor. Subse-
quently the old zemindars accepted the situation and obtained
decrees for sir on March 8th, 1865 (see Ex. D14 and 15),
which decrees could only be passed in favour of persons who



Baaawair

Singh and

others

Nawab

fiadshah

Bahu Begam

and others..



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262



THE OUDH CASES.



[Vol. Vn.



Basnwan

Singh and

others

V.

Kawab

Badshah

Bahu Begam

and others.



had lost proprietary rights. Upon these facts the learned
District Judge has held that the suit is barred by limitation.

For the appellants it is contended that the Settlement
Courts wrongly decreed proprietary possessien. No doubt the
decrees are not unassailable and it can hardly be said that
they show good reason for decreeing proprietary possession.
But, rightly or wrongly, the proprietary possession has been
decreed, and effect has been given to them in every possible
way.

The learned counsel for the appellants has argued that
Sir Charles Wingfield's decision of October 25th, 1863,
(Ex. D44) expressly reserved the right of the appellants to
redeem. This contention is based on the words " the appeal
" is therefore rejected, but they (the appellants) are at liberty
" to adduce proof in support of the alleged conditions of the
** mortgage-deed.'*

It appears that in their appeal to the Chief Commissioner
the appellants set up a case, which is not their case now, in
order to explain their being out of possession at the time of
Settlement. They alleged that they had only made a simple
mortgage under which the mortgagee might enter on the
property if the mortgage-money was not paid in ten years.
What the exact meaning of Sir Charles Wingfield's order is
is not very clear. I do not see how or where, when a case was
closed and, on appeal, finally rejected, the appellants were at
liberty to adduce proof. The only thing which apparently
they conld have done was to ask for a review of judgment and
then adduce proof, and this they never did. For thirty-seven
years they did nothing. The words on which the appellants
rely are, in my opinion, mere surplusage and reserve no rights
of any kind.

It is further contended that the Chief Commissioner dis-
missed the appellants' appeal in view of the rules of limitation
then in force and that by Act XIII of 1866 their claim was
revived and must be heard on its merits.



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Vol. VII.]



THE OUDH OASES.



263



They did toot sue then for redemption of the mortgage so
they cannot say that such a suit of theirs was dismissed on the
ground that it was barred by the rules of limitation then in
foKce. Apparently their claim to have the settlement made with
them was disallowed because they had not been in possession
within limitation.

They might perhaps under Act XIII of 1866. have applied
to have this question reconsidered as long as the Act was in
force. But the whole of it was repealed by Act XXXH of
1871. They cannot now come in except on the strength of their
case as mortgagors. Not having, while Act XIII of 1866 was
in force, taken any steps to revive their former claim to settle-
ment and have it heard on its merits, they cannot in my opinion
now plead that that enactment has made the decisions of the
Settlement Courts against them wholly inoperative.

It is further contended that the respondents are only mort-
gagees and that their possession is not adverse to the appellants.
I consider this to be a futile argument. The respondents have
established that, so far back as 1863, they alleged that they
were full owners by a conditional sale which had become
absolute: the Courts held that they were full owners and
decreed the full proprietary possession and that possession
they have enjoyed ever since.

From before the Chief Commissioner's decree till now it is
evident that the respondents and their predecessors have been
committing a series of acts which showed that they were asserting
themselves against the owners of the equity of redemption, and
I am of opinion that their possession has been adverse.

There is no doubt that in 1863 Nawab Afsar Bahn Begam
took possession absolutely and without any qualification.
She did not take possession as a mortgagee. All the un-
deniable facts indicate that the position taken up by her was
that she was entitled to full ownership. This being the case
I consider that the bar of 12 years' limitation would certainly



Bftsawan

Siugh and

others

t?.

Nawab

Badnhah

Bahu Begam

and others.



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2C4 THE ODDH CASES. Vol. VII.]

apply, in support of which 'view we' have been referred
to the case of Lachmi Kuar v- Manorath Ram (1).

In the above views I would hold that this suit is barred
by article 142 of the second schedule of the Limitation Act and
would dismiss this appeal with costs.

RusTOMJEB, 0. A. J. C. — I agree in the order proposed by
my learned colleague. I take the same view of the incidents
of this case.

(1) I. L. B^ 22 CaICm 145t P. C.



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Vol. VII.] THE OUDU CASES. 265

SECOND CIVIL APPEAL, No. 263 OF 1903. *



Before Mr. Wells and Mr. Chamier.



Jang Tis.BJj)VK {Defendant) v. Rab Raja minor under 1904.
the guardianship o£ Rani Juqraj Kubr {Plaintiff) and Ram Aug. 22.
Sarup {Defendant).



Mortgagee of tenants holding under decree of Courts suit by
landlord for possession against — Usufructuary mortgage by
tenant having non-transferable right in land^ effect of as against
landlord — Relinquishment of holding by tenant after transfer of
it to a third party ^ landlord's right as against transferee in case
of — Occupancy rights — Tenant holding for a term under a deed—
Relinquishment of holding^ rights of tenant holding for a term
-under a deed^ a tenant holding under decree of Courts an occupancy
tenanty or a statutory tenant as regards — Oudh Rent Act^ ss. 5,
20 J and 36 — Transfer of Property Acty s. 6 clause (t).



At the settlement in 1867 D sued for under-proprietary rights on the
etrcDgth of being an old semindar: He failed to establish his claim, but the
talnqdar allowed him to have a decree for kabzadari and retain the land at a
certain fixed rate of rent. 2>*8 successors mortgaged some of this land to the
defendant' and subsequently relinquished their holding to* the plaintiff who was
the owner of the Tillage. The plaintiff brought a suit to eject the defendants.

Heldj by Wells, O. J. G. that the defendant's mortgagors, not being under-
proprietors, were tenants und^r the Oudh Bent Act; that as such, they were
entitled under s. 20 of the Act to relinquish their holdings at the end of any
agricultural year; that the relinquishment by them put an end to the tenancy;
and that the plaintiff's claim should be decreed.

That the decree of the Settlement Court gave the mortgagors an occu-
pancy right, not a right of the nature described in s. 5 of the Oudh Rent Act,
which arises in a] particular way, but a right to occupancy in the ordinary
meaning of the word, and a transfer of such a right is of no effect with
reference to s. 6 (i) of the Transfer of Property Act.

* Against the decree of 6. Jwala Pershad, Subordinate Judge, Bara BaukI,
dated 20th July 1903, confirming the decree of Munshi Kurban Ali, Munsif,
Sanehighat, daWd 2ith November 1900.



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266



THE OUDH CASES.



[Vol. VIL



Jang
Bahadur

V,

Kae Uaja
minor under

the
guardianship

of Rani

Jugraj Kuer

and Ram

fcJarup.



nM^ by Cbamier, A. J. C. that under the decree of the ScUlcmeni
Court D obtained a non-transferable right to hold the land at a fixed rent and
that the usufructuary mortgage of the land made by his saccessors in favour of
the defendant was a transfer which* as against the landlord was invalid
and inoperative. A tenant with a right of occupancy or a tenant holding
under a decree of Court in Oudh is in a different position from that held by a
tenant for a term under a ideed. The latter cannot relinquish his tenancy
except in accordance with his lease whereas a tenant with a right of occu-
pancy under s. 5 of the Oudh Rent Act or a tenant " holding under a decree of
Court," or a 'statutory* tenant under s. 36 may under s. 20 of the Act relinquish
his tenancy at the end of any year by giving his landlord notice on or before
March 15th.



Fob Appellant. — M. Mohammed Nasim and Sycd Wazir
Ha$an.

For Respondents. — Hon'ble Rai Sri Ram and Babu Rama-
pat Ram.

Wells, 0. J. C. — The facts of this case are that Daljit
Singh obtained at settlement a decree for ^^kahzadari " of cer-
tain land. Some of Daljit's successors mortgaged some of this
land to the defendant-appellant, and then relinquished their
holding to the plaintiff-respondent who is the owner of tha
village. The appellant would not give up possession and the
respondent brought this suit to eject him, which has been
decreed by the Court below.

The case has been once before this bCourt and my learned