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colleague held that .Daljit was not an under-proprietor but
had only a decree for a heritable and non-transferablo right,
and in his judgment he mentioned certain facts which are
of the greatest importance. At the settlement in 1867 Daljit
and others sued for under-proprietary rights on the strength
of being old zemindars. They were not able to establish -their
claim, but as a matter of grace the taluqdar allowed them
to have a decree for kabzadari at the rent which they wore
paying. All that they w.ere allowed was a right to retain
the land at a certain fixed rate of rent.



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\ou ni.]



THE OUDH CASES.



267



A very long and ingenious argument, in wliich he
has cited many authorities, has been addressed to us by the
learned pleader for the appellant. He has contended that
the appellant having acquired from a person holding under
B decree of Court is only liable to be ejected in accordance
i^ith sections 52 and 53 of the Ondh Bent Act ; that there
was no provision in the settlement decree that the rights
conveyed under it should be forfeited in the event of
transfer ; that the pcirson holding under the decree is in
the same position as a lessee, who cannot be ejected for making
a transfer unless there is a special provision for forfeiture of
the lease and for re-entry by the lessee, and finally that, as ruled
in Badri Prasad v. Sheodhian (1) [lately followed in Rannu
Rax and others v. Rafi-ud-^in (2)] a man should not bo allow-
ed to do anything which will defeat his own grant ; and that
OD broad principles of equity, justice and common-sense a
man, having created a right in favour of another, should not
be allowed voluntarily to relinquish his tenancy and his title
to the detriment of the person toj whom he has granted the
right.

All these arguments however ultimately come to this, that
the non-transferable right, which was decreed, having been
transferred, the taluqdar must be compelled to recognize the
transfer and the right must practically be considered as trans-
ferable, because otherwise' injustice would be done to the mort-
gagee. This argument however entirely leaves aside the injustice
which would be done to the taluqdar, who is as much entitled
to the benefit of ^' broad principles of equity, justice and
common-sense " as the mortgagee. If the mortgagee chose to
advance money on a bad title that was his own affair, and the
principle of caveai emptor applies. The terms of the settlement
decree, had he chosen to study them, were clear enough to make
any mortgagee understand that this security was shaky. It
would no doubt be in accordance with equity and justice that



Jang
Bahadtir

V.

Bae Raja
minor under

the
gaardianship

of Rani

Jngra} Euer

and Ram ''

Sarup.



(I) L L. B., 18 AU.,85i.



C5^;^.W.N, 1904, 170.



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2«8



TJIE OUDH CASES.



[Vol- 7IL



Jang
Bahadui

Bae Eaja
minoi uBide.

the

goardianship

' of Bani

Jugraj Kuer

And Bam

3arap.



a tenani should not be allowed to relinqnish his holding to the
prejudice o£ the mortgagee, it the matter was one between the
tenant and the mortgagee alone. In Second Appeal 388 oC 1903,
which has been referred to for the appellant it was held, and
justly, that an occupancy tenant having mortgaged his rights
could not claim possession on the ground that his mortgage
was illegal. But this is no basis for contending that a third
person not a party to the mortgage should not dispute its
validity and when that third person is a taluqdar, who has only
consented to allow the tenant to retain certain land, and who,
on the condition that he retained it, allowed him not to be
reduced to a mere tenant-at-will, I fail to see that it would be
just or equitable to hold that the appellant's mortgagee cannot
be permitted to derogate from his own grant and that it must
be upheld to the disadvantage of the taluqdar. It is quite
'evident that in this matter some one must suffer. Is it to be
the mortgagee who has deliberately advanced money on bad
security, or the taluqdar who is blameless in the matter ?

The case is, in my opinion, not on the same footing with
those in which it has been held in the Agra Province that an
occupancy tenant who has created a «ub-lease or mortgage
for a term of years cannot^ be permitted to relinquish.
Even if these decisions are correct,- and they have been
strongly dissented from by the Board of Revenue in Gulzari
Mull V. Lachmi Chand (1) for what appear to me cogent rea-
sons, the position of an ordinary occupancy tenant in Agra,
who has acquired his rights simply by the accidental circnms-
tance of holding for a certain number of years, is, I think,
not to be compared with the position of the appellant's mort-
gagor, in whose favor, on personal grounds, the landlord
deliberately surrendered his rights of ejectment and enhance-
ment, in consideration of the land being retaine<l by him aad
others of his class.

It is hardly necessary for me, holding the views above

(I) S. D., I of 1898.



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Vol. VII.l THE OUDH CASES. 269

eomiciatecl, to criticize in mucfa detail the argumeirts put for- Bt^dor

ward by the pleader for the appellant. jj^ ^aja

'minor tinder
It must be conceded that the appellant's mortgagor not^ traardianshii>
being an under-proprietor was a tenant under the Oudh Rent of Rani
Act As such he was entitled under section 20 to relinquish and Ram
his holding at the end of any agricultural year and the land- ^^^'

lord was bound to accept the relinquishment, though he could
not eject the tenant. -The landlord was not bound to proceed
against the mortgagee under the Rent Act, in fact he could
not do so, as no relationship of landlord and tenant exists
between them ; the appellant's pleader himself asserts that it
does not. If therefore the landlord wishes to assert his
proprietary rights he was bound to sue in the Civil Courts for -
the ejectment of the appellant.

It has been argued that the landlord could not have
sued to eject the original tenant simply on the ground of
the transfer by him. That is a thorny question which it
is not necessary to decide in the present appeal. The ap-
pellant b not the original tenant and the equities are different.
As long as the original tenant remained the ostensible holder
of the land and the landlord had him to look to for the rent,
the landlord's privileges were not really invaded and he could
afford to ignore the mortgage, and might perhaps be expected to
do so. But, if I had to decide the question I should be inch'ned
to do so in the spirit of the ruling of a Full - Bench of five
Judges of the Calcutta High Court in Nurendro Narain Boy
V. hhan Chunder Sen (1).

It is contended taat a tenancy under a settlement decree
is in no way different from a tenancy under a lease, wliich does
not give the landlord a right of re-entry in the event of a
transfer. But we have to look to the circnmstanoes of
theidecree and the obvious intentions of the parties. The
Settlement Courts in Oudh in 1867 were presided over by

(1) 22 W. R., p. 2^



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w



i , Jang
^< Bahadur


r Rae Raja-
I minor under
>■ the
t' guardianship
I of Rani
fc Jugraj Kuer
E and Ram
t Sanip.



270



THE OUDU CASES.



[roL.viL



men of good common-sense^ bnt they were not trained
lawyers, and the province was not in those days over-run with
members of the legal profession, to insist upon stipulations,
based on niceties of English Law, being put into decrees.
I have ^no doubt that at the time this decree was given
it was the intention of every onettconcerned that if the
tenants transferred their holdings, out they should go. How-
ever, as I have observed, it is not necessary for the purpose of
the present case to decide this question.

There is one other ground on which I think that this
appeal must fail. There can be no doubt that what the decree
gave to the appellant's mortgagor was an occupancy right
not a right of the nature described in section 5 of the
Oudh Rent Act, which arises in a particular way, bat
a right to occppancy in the ordinary meaning of the word
A transfer of such a right is of no effect with reference
to section 6 (t) of the Transfer of Property Act. It is con-
tended for the appellant ithat this section had no application,
if section 2 be considered, as the Act was not in force when
the Settlement decree was passed. But the Transfer of
Property Act has crystallised and codified existing law and
I am of opinion that section 6 (t) applies unless it be
shown, as of course it cannot be, that there vms some law or
custom opposed to it in force at the time of the Settlement
decree.

I am of opinion that the appellant in the present case
should seek his remedy against his mortgagee, and that be
has no rights as against the respondent. In these yiews I
would dismiss the appeal with costs.

Chamibr, a. J. C. — ^The facts have been stated by my
learned colleague. If Daljit Singh's rights nnder the decree
of the Settlement Court had been those of a tenant with a
right of occupancy to whom the rule now incorporated in
section 5 of the Rent Act applies there could according to the
decisions of this Court be no doubt that the plaintiff is entitled







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I



Vol. VII.]



THE OUDH CASES.



271



to sncceed, see Rameshioar Bakhsh v. Radhay Pandey (1) in
which this Court took the view that a usuEractuary mortgage
by sach a tenant is invalid as being contrary to the spirit i£
not the letter of that section.

It is nrged that there is a distinction between a transfer
which is contrary to an enactment of the Legislature and a
transfer which is contrary only to the terms of a decree. No
doubt that is so and the distinction may be of considerable
importance in cases between transferor (>nd transferee but in
the present case the dispute is between the landlord and the
transferee. Under the decree of the Settlement Court Daljit
Singh obtained a non-transferable right to hold the land at a
fixed rent and in my opinion the usufructuary mortgage of
the land made by hisi nephews in favour of the defendant was
a transfer which as against the landlord was invalid and
inoperative. Indeed in the argument it was admitted that the
mortgage was not binding on the landlord and could not
subsist any longer than the right of occupancy, but it was
contended that the mortgage not being illegal did not entail a
forfeiture of the tenancy. In the view which I take of the
case it is not necessary to consider whether the mortgage
entailed a forfeiture of the tenancy or gave the landlord a
right to treat the tenancy as being at an end but I may point
out that this Court in Select Case No. 282 declined to apply
to a tenancy under " a decree of Court " such as we are
concerned with here the rule followed in Select Case No. 240,
that a condition or limitation against alienation by a lessee is
invalid unless a right of re-entry on alienation is reserved to
the landlord. Provisions for rights of re-entry were unknown
to the Courts in Oudh at the first regular settlement of the
Province, the presiding officers of which were encouraged to
disregard legal technicalities and administer equity to the
best of their ability. The application of such a rule to the
decree passed at the first regular settlement in Oudh would

(1) 2 Oadh Cases 201.



Bahadur

r.
Rae Raja
.minor under

the
guardianship

of Rani

Ju}3^raj Kucr

and Ram

Sarup.



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A



272 THE L^UDH CASE3 [Vol. VH-

Babafnr ^^^ practical purposes convert lacge numbers o£ tenants into
Eae^Raia under-propridx>r8 as was pointed out in If and, Ram v. Amanat
minor under Fatima (1). The crucial question is did the tenant's relin-
guardiaDship quishment of the land put an end to the tenancy. The
Jugraj Eaer defendant appellant relies upon the decisions of the Allahabad
*s^r?^? High Court in the cases K)f Badri Prasad v. Sheodhian (2).
Sham Das v. Batul Bibi (3), Bahu Lai v. Ram Sahai (4) and
Rannu Rai v. Rafi-ud-din (5). The first and second cases may
perhaps be distinguished on the ground that in them the
transferor was at the time of the transfer a zemindar not a
tenant. But if that distinction is put aside both of them as
-well as the third and fourth cases support the contention of
the appellant The decisions in all four cases rest on the rule
that a man may not derogate from his own grant. In
all of them a tenant who held a non-transferable right had
mortgagedior sub-let his holding or part of it. The decisions in
the second, third and fourth cases are probably the logical out-
come of the earlier decision referred to in the case in I. L. R.
24 Allahabad that a usufructuary mortgagee by an ex-pro-
prietary or occupancy tenant is not invalid as being pro tanto
a transfer of his rights. But according to the decisions of
this Ciourt a mortgage of any kind by an occupancy tenant
under s. 5 of the Rent Act is inyalid as being a transfer which
is forbidden and I see no reason for holding otherwise
in the case of a tenant holding a non-transferable right
under a decree of Court. Therefore it appears to me that the
decisions in the 2nd, 3rd and 4th of the Allahabad cases do not
apply to the present case. In the first Allahabad case the
tenant had granted a sub-lease. A sub-lease by a tenant holds
good both in Agra and in Oudh so long as the tenancy-in-chief
continues. The Allahabad High Court held that an occupancy
tenant cannot relinquish his tenancy to the prejudice of his
sub-tenant. The Board of Revenue have held otherwise. In

(1) 6 Oudh Cases 94. (2) I. L. R., 18 All., 354.

(3) I. L. R., 24 AU., 638. (4) AU., W. N. 1904, 101.

(5) AU., W. N. 1904, p. 170.



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Vol. VII.] THE OUDH CASES. 273



the case of a lease for a term granted by a deed the applicabi- Bahadur
lity of the rule followed by the High Coart is clear, bnt it Rac^Raia
would be dangerous to assume that such a rule applies to all minor onder
tenancies in Oudh. A tenant witK a right of occupancy or a guartitanahip
tenant holding under a decree of Court iij Oudh is in a different jugro^uet
position from that held by a tetiant for a term under a deed. ^ ^"*
The latter cannot relinquish his tenancy except in accordance
with his lease, whereas a tenant with a right of occupancy
under section 5 or a tenant ^'holding under a decree of Court,"
may under section 20 of the Oudh Rent Act relinquish his
tenancy at the end of any year by giving his landlord notice
on or i)efore March 15th and this important distinction is observ-
ed in section 20 of the Act. A " statutory" tenant so called in
Oudh may under section 36 of the Rent Act retain his holding
for seven years from one or other of the dates mentioned in that
section, but I believe that it has never been doubted that such a
tenant may relinquish his entire holding under section 20
notwithstanding that he has granted a sub-lease for a term or
from year to year of part of the holding. The reason for this view
is, I suppose, that as the tenant has a non-transferable right the
landlord owes no duty to the sub-tenant and is not called upon
to look beyond the tenant and enquire whether any other person
has^acquired rights under him. I see no reason for distinguish-
ing in this respect between a ^' statutory" tenant and a tenant
holding under a decree of Court. The rights of both are
non-transferable though they may be entitled to hold for difEerent
periods.

It was suggested that although the mortgage to the defend-
ant is contrary to the decree and need not be recognized by the
plaintiff yet the defendant should be allowed to retain posses-
sion of the land so long as the tenant or any heir of the tenant
is in existence and the rent reaches the pockets of the plaintifEs.
Such a view would result in great confusion and I cannot
accept it. If the rights of the tenants were, as I think they
were, not transferable the landlord was not bound before accept-
ing the relinquishment to enquire whether any other persons



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274 THE OUDH CASES. [Vol VII.

Bahlwfur ^^ acquired rights under the tenants or to take any notice of

^- . any such rights if he was aware of them. I have no doubt that

minor under a relinquishment by Daljit in 1867 would have been treated as

guardfanehip binding upon his mortgagee or other transferee and I need

of Rani hardly say that the rights of the parties have not been afiEected

and Ram by the Transfer of Property Act

Sarnp.

I think that we should hold that the relinquishment by the
tenants put an end to the tenancy. I agree with the order
proposed by my learned colleague.



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Vol. VII.] THE OUDH CASES. 275

FIRST CIVIL APPEAL, No. 66 OF 1903. *



Before Mn Rustomjee and Mr. Chamier.



Narkndra BAfiADUR SiNGH {Platntif) V. Balkaran Singh 190*'
and others (De/endarUe). ^^®- ^^»



Pre-emptiouy snitfor-^Per/ectpartkum — Right of owner of
xme mahal to pre-empt as against vendee of another mahal —
Member of village community'^Residence in village — Oudh Laws
Acty 1876, section 9.



A vilUige was by perfeot partition divided into foot mahald. One of then
mah»]« was the property of JB and was placed under the management of the
Coort of Wards which sold it to the respondents. Thereapon the appellant
>vho was the owner of another mahal brought a suit fqr pre-emption. It was
conceded on behalf of the appellant that he had no right of pre-emption unless
he was a ** member of the village community** within the meaning of s. 9
cf the Oudh Laws Act« It was also admitted that the appellant did not
reside in the village.

BM, that in the Tillage in suit there was only one village commi^nity,

perfect partition notwithstanding ; that residence in the village is not a neces-

«aiy qualification for membership of a village community for the purposes of

B. 9 of the Oudh Laws Act; and that the appellant was a member of the village

eommonity within the meaning of that section.



For Appellant. — Mr. Mr. J. S. Misra.
For Respondent. — ^Baba Ishwari DayaU

Chamier, a* J. C. — ^This is an appeal by the plaintifi in a
cnit for pre-emption. The facts are as follows ; — ^The village of
Satrihi was by perfect partition divided into four mahals of
5 biswas each. The estate of Bhairon Bakhsh the owner of one
of the mahals was placed under the management of the Court
of Wards. The Deputy Commissioner acting on behalf of the
Court of Wards sold the mahal of Bhairon Bakhsh to the res-
pondents whereupon the appellant who is the owner of another

* Against the order of Pandit Bakht Narain, Subordinate Judge, Fyzabad,
dated 22nd April, 1903.



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276



THE OUDH CASES.



[Vol. VIL



l^arendra

Babadar

Singh

Balkaran

^ingh and

others.



mahal brought this suit for pre-emption. It is conceded on
behalf of the appellant that lie has no right of pre-emption unless
ho is a ^'member of the village community'' within iiie meaning
of section 9 of the Oudh Laws AcL It is also admitted that the
appellant does not reside in the village. The defence is (a) that
as a perfect partition has taken place there is no longer one
village community within the limits of the village and (6) that if
there is only one village community the appellant b not a mem*
ber of that community as he does not reside in the village. The
question whether partition of a village into several mahals
involves the disintegration of the village conununity as regards
right of pre-emption has arisen in several cases. In Rai Jainte
Parshad v. Sheikh Mir Muhammad (1) Mr. Toung hdd that when
a perfect partition takes place there is no longer one ^^ village
community" in the sense of section 9 of the Oudh Laws Act but
that view has been- rejected in a number of cases.- In two cases
where a partition had taken place under which a portion of the
Ullage lands had remained joint I held that there was nevertheless
only one village community [see Dalip Singh v. Sheo Nandan
(2)]. In All Baza Khan v. Oanga Din (3) Mr. Wells went fur-
ther and held definitely that a perfect partition of a village into
several mahals, no land remaining joint did not involve the
creation of several village communities. He relied principally
upon the judgments of Messrs. Scott and Spankie in DrigUjai
Singh v. Court of Wards (4) where the learned judges in dealing
with the decision in Select Case 17o. 140 expressed disapproval of
the notion that ^there could be two or more village communities in
the same village. They had no occasion to consider the efiEect of a
partition perfect or imperfect but the language which they used
shows that they would have held that a village community is
not disintegrated by even a perfect partition. Following the
opinions expressed by Messrs. Scott, Spankie and Wells I would
decide the first question in favour of the appellant and hold that
in the village to which this suit relates there b only one village
4X>mmunity.



(1) Jwala Porshad, 8clect Oases, App.
(3) 7 Oudh OasM 20&.



p. vii.



(2)



7 Oudh Cases 1.
5 Oudh Cases 26&.



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Vol. VII.]



THE OUDH CASES.



27T



I now turn to the question whether residence in the village
is a necessary qualification for membership of the village com-
munity for the purposes of s. 9 of the Oudh Laws Act. In
Select Case No. 128 Mr. Young held that the words "village com-
munity " in this section denote the body of persons who each:
have some interest however small in the village estate and do*
not include the village Nai, Dhobi, or Sweeper, not having
proprietary or under-proprietary rights in the village. This view
was approved by Mr. Dyson in Select Case No. 177 and ha»
been acted on or assumed to be correct in a large number of
cases ending with the case of Driffbijai Singh v. Court of Wards
cited above. But in none of the cases hitherto mentioned had
the Court to decide whether a person having a proprietary or
under-proprietary right in the village must also reside there. In
his judgment in the case last mentioned Mr. Justice Burkitt
who also was a Judge in this Court for two or three years
ending with 1892 said, " The words Ullage community' are not
" anywhere defined in the Act but the accepted rule in the Oudh
" Courts is that they include all persons having an interest in the
" village estate, whether as proprietors, or as under-proprietors
" if resident in the village. A village conmiunity may be
" wholly proprietary or wholly under-proprietary or may con^*
" tain members of both classes. The under-proprietorsy as a rule,
" will be residents of the village, but the proprietors may be resi^
" dents of another district or of another province and their only
" connection with the village may be the receipts of revenue from
"the under-proprietors." In the same case Mr. Scott said, "The
" provisions in clause (4) of section 9 present no difficulty to my
^^ mind. The proprietor of a village may be a resident in a different
" village or in a different province and by clause (4) it is provided
" that he shall haveithe right oi pre-emption if an under-propriet-
" ary tenure is sold and the classes mentioned in clauses (1) and
" (2) and (3) do not exercise their right. If an under-proprietor of
**• a share in the village is a member of the village community,
" his cake is provided for by clause (3), and there was no necessity
^' for making a special provision for him as in he case of a
" proprietor. A proprietor may reside in a village and own a



Narendrar

Bahadur

Singh

V.

Balkaran

Singh and

others.



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¥^/' ^


■J


F^ ^




%- ■




p. ,




T^: - ■




¥




U'i




t'"'- ■






Narenclra


* . '


Bahadur


;r ^


Stogh


^■^.


t?.




Balkaran




Bingb and
others.



278 THE OUDH CASES. [Vol. VIL

*' protion of the land of the village in'i^hich there are no nnder-
^^ proprietary rights, and under such circumstances he would be
'^entitled to pre-emption under clause (3) as well a under clause
" (4), whether a proprietary or under-proprietary tenure is sold,"
This passage shows clearly that Mr. Scott was of opinion that
residence was not a necessary qualification for membership of
the village community. In the case of St/ed Bashid^ud-din v*
Wall Jan Beg (1) Mr. Spankie held that residence was not a
necessary qualification for membership of a village community
and said that the contrary view was not in his opinion supported
by the judgment of Burkitt J. in the case of Drigbijai Singh



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