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V. Court of Wards (2) or by the case of RoMmHud-^in v. Rewal
(3) which I will deal with presently. I do not understand why
Mr. Spankie put aside the judgment of Burkitt J. unless it was
on the ground^that bs nothing turned on the question of residence
in that case that learned Judge's observations were not abso-
lutely necessary for the decision of the case before him. Lastly
the question came on June 9th last before the present Officiating
Judicial Commissioner (Mr. Wells) in Musammat Kusum
Koer V. Ram Sarup (4). He examined most of the cases which
I have mentioned and came to the conclusion that a claimant under
clause (3) of section 9 of the Oudh Laws Act need not be a resident
of the village. It was contended before him as it was contended
before us that tiie question was concluded by the decision of
their Lordships of the Privy Council in Rahimrud-^n v. Rewal
(5). That case was governed by Punjab Laws Act which pro-
vides that unless the existence of a custom or contract to the
contrary is proved the right of pre-emption shall be presumed
to exist in all village communities however constituted. The
argument presented to their Lordships was that inasmuch as the
whole village belonged to one man there was no village commu-
nity and therefore the plaintiffs who belonged to a class entitled
to claim pre-emption in a village community had no case. Their
Lordships rejected the argument saying that they "agreed with

(1) 7 Oudh Cases 19. (2) 5 Oudh Cases 266.

(3) I. B. B., 30 Cal., 635. (4) S. C. A. No. 261 of 1903.

(5) I. L. B., 30 Cal., 635.



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279



" the Chief Court in thinking that the expression ' village com-
" ' inanities ' in the Act of 1878 is not used to denote a village
*' commnnity of the typical sort consisting of members of one
*' family or one clan holding the village lands in common and divid-
^' ing between them the agricnltnral lands according to the custom
'^ of the village. It seems rather to be used in a popular sense to
^' denote a body of persons bound together by the tie of residence
^' in one and the same village, amenable to the village customs
'^ and subject to the administrative control of the village officers.
" There seems to be no reason why a village community should be
"confined to the landowners in the village." With reference to
this passage Mr. Wells remarks that if the view of their Lord-
ships were applied to Oudh the village barber or washerman
or bania would as a member of the village (k>mmunity be
entitled to pre-empt an under-proprietary right in preference
to the superior proprietor whereas no such person has as such
a right of pre-emption in the Punjab and that their Lordships
" do not make the tie of residence the absolute test. They had
" not under iiieir consideration the question of excluding from the
" village community a person so highly interested in it as the
" under-proprietor of the whole village because perhaps his resi-
" dontial house was just across the border in the next village."

I agree that their Lordships do not make residence the sole
test but I cannot agree that if their interpretation of the expres-
sion " village community" is applied to the Oudh Act it follows
that residence would be the sole test in Oudh for it has been settled
law for at least 17 years past that in the matter of pre-emption
in Oudh ownership of land is an indespensable condition of
membership of a village community for the purposes of section
9 of the Oudh Laws Act, as it evidently was for the purposes
of section 121 of the Land Revenue Act 1876.

Li the case of Munnu Lai v. Saiyid Muhammad Ismail
decided by their Lordships of the Privy Council on July 12th
last (not yet reported) the plaintiff who claimed pre-emption did
not reside in the village. At the end of their judgment their
Lordships said "the circumstance ofhi s being non-resident does



Narendm
Bahadur

Singh

r.

Balkanni

Singh and

others.



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^v/-

■^ \ '



Karendra

Bahadur

Singli

V,

Balkaran

Singh and

others'



280



THE OUDH OASES.



[Vol. VIL



" not seem to affect or even bear npon the language or the theory
" of the enactment." But in an earlier passage they had said that
it was unnecessary to discuss the question whether the plaintiff
was a tnember of the village community, and the passage above
quoted occurs in a portion of the judgment devoted to the ques-
tion whether the plaintiff who held a separate chak was a
co-sharer of the whole mahal within the meaning of the second
clause of section 9 of the Act. Their Lordships held that he
was a co-sharer of the whole mahal notwithstanding that he did
not reside in the village. I do not think that the decision of
their Lordships can be regarded as touching the question which
we have to decide.

Mr. Justice Burkitt cites no cases ip support of his statement
that the accepted rule in the Oudb Courts is that residence in
the village is a necessary qualification for membership of a
village conmiunity. I have had more than 16 years experience of
litigation in Oudh but I am not aware that any such rule has
been followed. Claims to pre-emption are very seldom made
by persons who do not reside in the mahal or village in which
the land in question lies. Clauses (1) and (2) of the section hove not
been regarded as providing only for relations of the vendor or
mortgagor consequently claims under the third clause have
been comparatively few, and I do not know of any case prior
to that of Drigbijai^ngh v. The Court of Wards in which the
present question was considered. Li the case of Muhammad
Ismail V. Sirajul-haky Munnu Lai and others (1) the plain-^
tiff was not a resident of the village in which the land in suit
lay (the fact appears from the pleadings and from the judgment
of the Privy Council on appeal which has not yet been reported)
but both Mr. Blennerhassett and Mr. Spankie held that the
plaintiff was a member of the village community. It is true
that the question of residence was not considered but the case
shows that it did not occur either to Counsel or the Court that
the residence of the plaintiff affected the issue. Mr. Blenner-
hassett had had many years experience in Oudh and Mr*
Spankie had been a Judge of this Court for about seven
(I) 3 0adhCa9e8llO,



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THE OUDH CASES.



281



years. It is noticeable also that Mr. Scott who had had manj
years experience in Oadh did not in the case of DrigUjai
Singh V. The Court of Wards say that it was an accepted
rule that residence was a necessary qualification for member-
ship of a village community or refer to any cases on the
point. He seems to have been led to that conclusion solely
by a consideration of the fourth clause of the section.
In Webster's Dictionary a "community " is said to mean
*^a body of people having conmion rights, privileges or
interests or living in the same place under the same laws and
regulations." It is the latter meaning which their Lordships
of the Privy Council attributed to the words i* village commu-
nity" in the Punjab Laws Act and the circumstance that if the
/words do not bear this meaning in sections 7 and 9of the Oudh
Laws Act the fourth clause of the latter section seems to be
redundant supports the view |aken by Burkitt J. and Mr. Scott.
&o far as I can see the only construction which avoids this
redundancy is that which was adopted by Mr. Spankie in Drigbijai
Singh v. The Court of Wards but as that construction has
been rejected by Mr. Scott, and three Judges of the AUahabad
High Court it is no longer open to us. (There are however other
considerations which suggest that the words "village commu-
nity " are not used in the same sense in the Oudh Laws Act as
in the Punjab Laws Act and that residence is nbt a necessary
qualification for membership of a village community with refer-
ence to the third clause of section 9 of the Oudh Laws Act. In
the first place under section 10 (a) of the Punjab Act as amended
by Act XII of 1878 the right of pre-emption is presumed "to
^xist in all village communities however constituted" whereas
the corresponding clause of the Oudh Act contains the additional
words "and whether proprietary or under-proprietary and in the
'" cases referred to in section 40 of the Oudh Land Revenue Act."
Secondly, under section 12 of the Punjab Act tenants with rights
of occupancy can claim pre-emption whereas under the Oudh
Act as hitherto construed no person who is not a proprietor or
under-proprietor has a right of pre-emption. This construction is
1 think supported by a comparison of sections 7 and 9 of the Oudh



KarencTm
Babaiiar
8iBgU

Balkaron

Singh and

others*



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283



THE OUDH CASES.



[Vol. VIL



Karettdra
Bahadur

Singh

t,

Balkaran

Singh and

others*



Laws Act with section 121 of the Ondh Ijand Revenue Act which
was passed on the same day. Thirdly, under the Oudh Act a
member of a village community can as such, while under the
Punjab Act he cannot as such, claim pre-emption. In short sections
10 and 12 of the Punjab Laws Act read together suggest that
the words **" village communities" used in section 10 mean persons
living in the same place under the same laws and regulations
whereas sections 7 and 9 of the Oudh Act read together suggest
that the words 'Sdllage community" in section 9 mean the pro-
prietary or under-proprietary body t.«., a body of people having
common rights, privileges or interests, the question of residence
being left out of consideration. Sections 7 and 9 of the Oudh
Laws Act and section 121 of the Oudh Land Revenue Act are
closely connected together. There is certainly nothing in the langu-
age of the latter enactment or in the principle on which it is based
which in any way suggests that residence is a necessary qualifi-
cation for membership of a village community for the purposes
of that enactment, and the only consideration in favour of the
view that residence is a necessary qualification under the third
clause of section 9 of the Oudh Laws Act is that according to
the construction adopted by the majority of the judges in the
case of Driffbijai Sinffh v. The Court of Wards the fourth clause
seems to be redundant. The difiSculty caused by the fourth
clause attracted the attention of Blair J. who suggested that
that clause referred to cases in which owing to the constitution
of the village proprietors were not members of the village com-
munity. It is possible that the fourth clause was considered
necessary in order to provide for the case of a whole village
being held by under-proprietors. I am inclined to think that
in framing the third clause of section 9 of the Oudh Laws Act
and section 121 of the Oudh Land Revenue Act, 1876, the
authors of the Act had chiefly in their minds a bhayachara village,
if so' they probably did not consider that the residence of the
claimant should afEect his claim. The words '' however consti-
tuted " in section 7 render section 9 applicable to all villages
whether the tenure is hhayachara or not but still I do not thinL
that there is sufficient reason for confining the third clause



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fHE OUDH CASES.



283



of section 9 to persons resident in the village. I cannot say
that my mind is free from doubt but on the whole I think that
the sounder view is taken by Mr. Spankie in Si/ed RasKid-ud-din
V. Wall Jan Beg (1) and by Mr. Wells in Aft. Kusam Koer v.
Ram Sarup (2) namely that residence in the village is not a
necessary qualification for membership of a village community
for the purposes of section 9 of the Oudh Laws Act.

1 would accept this appeal, set aside the decree of the
Court below and pass a decree in favour of the plaintiff for
possession of the mahal in suit upon payment into Oourt of the
sum of Rs, 5,650 on or before November 15th next and I
would give the plaintiCE his costs in both Courts with liberty
to deduct the amount thereof from the amount payable by him.
If he fails to pay the required sum within the time specified
this appeal will stand dismissed with costs.

RusTOMJEE, 0. A. J. C. — I concur.



Karendra

Bahadur

Singh

V,

Balkaran

Bingh and

others.



(1) 7 Oudh Cases, 19.



(2) 8. G. A. No. 261 of 1903.



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184 THE OUDB CASES. [ Yoi. VII.

PRIVY CQUNCIL.



On appeal from the Court] 0/ the Jndieial Commiseianer of Oudh.



p ^ • HuionJ Lal and aootber (D^endanU) v. M^ULVi Saitxd

1904. MtJHAMiiAO Ismail (Plaintiff)^ ainl others (Def-eniennJti)^



July 12.



Pre-emption^ stdt/or — Owner of separate chak in mahai^righi
^f ^0 pre-empt'^Co-sharer of mahai — Non-resident co^sharer —
Oudh Laws Act 1876, s. 9—Oudh Revenue Ad, (XVII of 1876)
ss. 108 and 112, and 121.

Id a suit fioK pD^eaiption, there wm aa qaealjip]^ about the relatioaahip
oi the plaintifl!, aad the only dispfUe was whether his conaeotioq with the
TiUage in suit was such as to give him the right of pre-emption. The material
facts were that he was owner of a chah of 33 acres In the village, and, by the
settlement under which he hM, he paid his share oC the reveaae throsigh the
lamberdars of the yiUage ; bat he did not reside in the Tlllige.

Meld^ that the plaintiff was a co-sharer of the whole raahal in the sense of
n. 9 of the 0«dh Laws Act, 1876/, and that having regaiA to ss, 1^8, 112,
«nd 121 ol Act XVII of 1876 (Ondh Land Beyenne Act), the fact that the
•share of the plaintiff ia the mahal consisted of a separate ehak bat did not
itnake him the less a co-sharer in the isense of this Act, and the drcomstance
ol his being non-resident did not make any difference.

Lord Robbbtson. — ^The sole question in this appeal is
-whether the respondent Manlvi Saiyid Muhammad Ismail, who
may be more conveniently referred to as the plaintiff, is entitled
to pre-empt the village of Pahiadpur, which had been sold to
the appellants and the fourth and fifth respondents.

The village is in Ondh ; and the appeal is against a judg-
ment of the Judicial Commissioner of Oudh, (t) who, reversing
« decree of the Subordinate Judge of Sitapur, have held that
the plaintiff has a right of pre-emption under the Ondh Laws
Act, XVIII of 1«76. The facts are undisputed, and the
question is entirely on the construction of the ninth section of
the Act. Under that section, which admittedly applies, to the
• • '

(t) Reported in 3 O. C. 110.
* Present :— Lord Davey, Lord Robertson, and Sir Arthur Wilson.



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THE OUDH OASES.



f85



sale ot Pahladpiir, the right of pre-emption is given ta (among
other persons) " co-sharers oE the whole mahal" in order of
their relationship to the vendor, and to " any member of thpe
village commtlnity.*'

There is no question abont the relationship of the plaintiff,
and the obIj dispnte is whether his connection with the village
k snch as to give him the right of pre-emption. The material
facts are that the plaintiff is owner of a chak of 33 acres in
Pahladpnr ; and, by the settlement nnder which he holds, he
pays Bs. 40 per annum of revenue, this being payable through
the lambardars of the village ; but he does not reside in the
village. The jadgmentof the Judicial Commissioner was that the
plaintiff is a co-sharer of the whole mahal. This opinion is
concurred in by the Additional Judicial Commissioner, who
further held that the plaintiff is also a member of the village
community.

In their Lordships' judgment, it is clear that the plaintiff
is a co-sharer of the whole mahal, in the sense of the ninth
section of the Oudh Laws Act, 1876 ; and, this being so, it is
unnecessary to discuss the question whether he is also a '^ mem-
ber of the village community."

The Oudh Land Revenue Act (No. XVII of 1876) is really
decisive of the right of the plaintiff to be deemed a co-sharer of
the whole mahal. In the case of every mahal, according to
section 108, the entire mahal is to be charged with, and all the
proprietors jointly and severally shall be responsible to Govern-
ment for, the revenue for the time being assessed in the mahal.
The term " proprietors" for the purposes of that chapter of
the Act, includes all persons in possession for their own benefit,
and the " chapter" is the whole of that relating to collection
of the land revenue, and everything now to be referred to is
in that chapter. The 112th section provides that if the settle-
ment of any land has been made with a lambardar, and if there
be an arrear of revenue due in respect ot such land, botli the
lambardar and the co-sharers of the mahal from which the^



Mannu Laf
and another

Ifiaolti
Saijid

Muhammad^
Ismail

and otbesa..



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286



THE OUDH CASES.



[Vol. VII.



Munna Lai
and another

V.

Maulvi
Saijid

Muhammad
Ismail

and others.



arrear is due shall be deemed defaulters. By section 121 it is
provided that, if an arrear of land-revenne has become due in
respect of the share of any member of a village commnnitj,
such community, or any member thereof, may tender payment
of such arrear or may offer to pay such arrear by instalments,
and in case of conflicting tenders or offers under this section,
the co-sharer who, in case the share were sold, would have a
right of pre-emption under section 9 of the Oudh Laws Act,
shall be preferred.

This last enactment is important because it expressly identi-
fies '' the co-sharer" of the 9th section of the Oudh Laws Act
of the same year with every proprietor who, by the combined
operation of sections 108 and 112 of the Oudh Land Revenue
Act, is liable for the revenue assessed on the whole mahal. If
the various sections of this " chapter" of that Act be read
together it is plain that every " proprietor" liable for the
revenue of the mahal is a " co-sharer." The plaintiff is exact-
ly in this position. He is certainly a " proprietor" in the sense
of section 108 of the Land Revenue Act ; and the settlement
of his land has been made (on the face of bis title) with a
lamburdar in the sense of section 112. He is, therefore, liable
just as much as every other proprietor in the mahal for the
whole arrear of the mahal in case of default. Their Lordships,
accordingly, consider that the fact that the share of the plain-
tiff in the mahal consists of a separate chak does not make him
the less a co-sharer in the sense of this legislation, and the
circumstance of his being non-resident does not seem to affect,
nor even bear upon, the language or the theory of the enact-
ment.

Their Lordships will humbly advise His Majesty that the
appeal ought to be dismissed, and the appellants will pay the
costs of the appeal.



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Vol. VII.] THE OUDH CASES. 287

PRIVY COUNCIL.



On appeal from the Court of the Judicial Commissioner of Oudh,



DuRGA Bakhsh Singh ^(Plaintiff) v. Mirza Muhammad p c *
Ali Beg (Defendant). 1904.

July 29.



Insanity^ weakness^ helplessness — Commutation of insu^
dent case of insanity into a case of weakness — Fraud.



In two suits for the cancellation of two mortgage-deeds granted to the
respondent bj F, the plaintiflTs father, the ground of action was that F was
insane and that the deeds were obtained by fraud. The evidence produced by
the plaintiff went to prove insanity in its crudest and most palpable form.
The Court of first instance held that F was not insane, but that he was help-
less and weak-minded and that the respondent had defrauded him. The
Court of the Judicial Commiasioner dismissed both suits.

Held, that it is not Intimate to commute an insufficient case of insanity
into a complete case of weakness, when the type of insanity connoted in the
evidence is something quite different.



Lord Bobbrtson. — The qnestions raised by these appeals
arose in two suits, now consolidated, brought for the cancel-
lation of two mortgage-deeds granted to the respondent by
Fateh Singh, the appellant's father, on 13th January 1892.
The ground of action was the same in each case, vie., that
Fateh was insane and that the deeds were obtained by fraud.
At the same time it is necessary to bear in mind that the
consideration of the mortgages was different, inasmuch as the
one for Bs. 8,000 was granted for a fresh advance of cash
paid down, while that for Bs. 14,400 was granted as the result
of a long series of former mortgages and decrees.

The Subordinate Judge, on 27th October 1898, held that
the smaller mortgage could not be cancelled. As regards the
larger one, he held it good to the extent of Bs. 8,000, and bad
as regards the balance of Bs. 6,400. The Judicial Commis-

• Pbepent : — Lord Davey, Lord Rolxrtson and Sir Arthur Wilson,



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288



THE OUDU CASES.



Vol. VII.}



' Durga
Bakhsh Siogh

V,

Mirea

Mahammad

AliBeg,



sioD€rs of Oudh, on Slst July 1899, held that the appellant
had failed to establish his case in either suit and dismissed
both.

The essential weakness oE the appellant's position is that
both Courts have held Fateh not to have been insane, and the
grounds upon which the Subordinate Judge gave him a
limited decree in the Bs. 14,400 suit are entirely unsupported
by evidence. The theory of the Subordinate Judge was that,
while Fateh was not insane he was helpless and weak-minded
and the respondent defrauded him. Neither of these pro-
positions is substantiated. All the testimony which goes to
mental unsoundness in Fateh goes to insanity in its crudest
and most palpable form, and there is no case of helplessness or
weakness. Fateh was blind, and had been so for fifteen years.
But the picture drawn of him by the appellant's witnesses is
not of a helpless old man, but of a raving old man. Several
witnesses so describe him, and, having done so, leave their
assertion unsupported by detail or circumstance. This account
of Fateh found no credence in either Court, and had been
contradicted by adequate and responsible testimony.

Now the case constmoted by the Subordinate Judge and
substituted for that advanced by the appellant is the case of a
helpless or facile mortgagor operated on by a fraudulent
mortgagee. Bat then it is not legitimate to commute aa
insufficient case of insanity into a complete case of weakness,
when the type of insanity connoted in the evidence is some-
thing quite different ; and, second, the appellant has entirely
failed to make out any case of fraud at all. As regards the
mortgage for Rs. 8,000, the materials were discouraging, this
being a fresh advance of cash, and the mere circumstance
that the money or some part of it was paid by Fateh to
persons connected with the respondent comes to nothing, as
this has not been followed up by showing those payments to
have been made sine causd. As regards the mortgage for
Rs. 14,400, the antecedent obligations of Fateh under old
mortgages and decrees make it at least probable that he was



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THE OUDH CASES.



289



really due that or some similar sum, the amount of which bad
been under negotiation. But it was for the appellant to bring
this to a point by proving the state of the account ; and on the
face of th^ record this was one ol ibe eonditions of his suc-
ceeding. It is impossible to sopplaot this sort of case by a
conjectural theory about the machinations of two taluqdars,
such as has been supplied by the Subordinate Judge.

Their Lordships will humbly advise Hia Majesty that the
appeals ought to be dismissed. The appellant will pay the
•costs of the appeals.



Ddrg»

BaEbsh tiin^

r.

Mirza

Mnhamm.'Kl

AH Beg,



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290 THE OUBfl CASES. [Vol. VII,

PRIVY COUNCIL.



On Appeal from the Court of the Judicial Commissioner of OudL

p Q* MusAMMAT Shafiq-un-nisa {Plaintiff) i\ Khan Bahadur

1904. Raja Shaban Ali Khan {Defendant).
July 8. ■■

Indian Evidence Acty m. 4 and 90 — ^Document more thdn

thirty years oldy proof of — Presumption as to document more
than thirty years old^ discretion of Court as regards.

the plain tifi produced a document more than thirty years old which
purported to come from proper custody. The lower Courts called for proof
of it, and as the plaintiff failed to prove the document formally they rejected
it. There were circumstances both internal and external which threw great
doubts upon the genuineness of the document.

1^0^, that under B.I 90 of the Indian Evidence Act read with s. 4 of the
same Act, the Court has a discretion to call for proof of a document although



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