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does not like section 19 provide that such Subordinate Judge shall
hear and dispose of such appeals but merely provides that the
appeals referred to in the notification shall thereupon be preferred
accordingly. Notwithstanding the difference in language I con-
sider thfit the intention oE the Legislature must have been that
the Subordinate Judge to whom appeals were preferred under
the notification should hear and dispose of them. Upon this
point I agree with my learned colleague, but I do not think that
Pandit Bakht Narain was entitled to dispose of the appeal in
the present case by reason of the notification of March 29 th
which directed that appeals from all the decrees or orders of
the Mansif of Kheri should be preferred to him. In my opinion
Pandit Bakht Narain could have disposed of the appeal even if
the notification of March 29th had never been issued. That
he could have done so if the notification of December 31st 1900
had been in proper form I have no doubt. The difficulty is in
my opinion caused by the form of the notification of December
Slst. On the whole however I think that the notification should
be treated as if the name and description of Babn Bam Pershad
had not appeared in it, i. ^., as if it had directed that the appeals
should be preferred to the Subordinate Judge of Eheri. Once
this conclusion is reached the rest seems to be clear. The appeal
was part of the work of the Court when Pandit Bakht Narain
took charge and in my opinion he was competent to dispose of it.
The same sort of question might arise under section 19, in the
case of an appeal referred to a Subordinate Judge. So far
as I know a Subordinate Judge has always been considered
competent to dispose of appeals transferred to bis Court
under section 19 in the time of any of his predecessors. In
my opinion the power of a Subordinate Judge to dispose of
appeals transferred to his Court under section 19 is the

Sohan Lai

Pershad and


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as his power to dispose of appeals preferred to his
Hiider section 18. The crucial qaesiion in the present
I, was the appeal rightly preferred to the Coart of the
iinate Jodge of Kberi ? If so the Subordinate Judge pre-
in that Court was bound to dispose of it, whether it was
red under a notificati<Hi issued in his own time or under a
ation issued in the time of any of his predecessorj. It is
sputed that the appeal in this case was rightly preferred
Court of the Subordinate Judge of Kheri therefore for
isons which I have given I hold that Pandit Bakht Naraiu
risdiction to try it.

pon the merits I entirely agree with my learned colleague
would dismiss the appeal with costs.

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Before Mr. Wells.

Bbni Pbrbhad {Plainiiff) v. Sahai Lal and others {Defend - 1904.
<in^). July 28.

Certified copy of a registered deedy admissibility of to prove
existence^ condition^ and contents of the otnginal — Evidence Act^
4. 65 y cl. (e) — PMic document — Registration Acty s, 57.

Held ihAt a, mortgage*deed registered- according to law is under sectioOL
71 claoflc (2) of the ladian Eridence Act a public docum^t and its existence
and condition or contents may under Section 65 (e) of the said Act read
^ith section 67 of the Registration Act be proved by a certified copy.

For Appellant. — Mr. A. P. Sen.
Fob Rbspondrmt No. 6. — B. Puitoo LaL

Wells, 0. J. C. — In this case the plaintiff sued to recover
Rs. 1,310 by sale of the property under a registered mortgage7
deed executed by one Hira Lal on December 12th, 1887, for
Rs 400. The case was defended by Thakur Jawahir Singh
and Bam Dayal defendants 5 and 6, Ram Dayal being the
auction-purchaser when the property was brought to sale by
Jawahir Singh. In their written statements Jawahir Singh
said he did not know anything about the mortgage and Ran^
Dayal admitted that it had been executed as alleged and
neither of them disputed the terms of the deed as stated.
The suit was defended on various grounds, but as far as I
can see the fact of plaintiff's mortgage or its genuineness was
never denied. The Subordinate Judge, however, fixed the
wholly unnecessary issue whether the mortgage-deed of Decem-
ber 12th was genuine and on this he found against the plaintiff

* Against the decree of B. Lindsay Esq., District Judge, Sitapnr, dated
30th June 1903 affirming the decree of Baba Grish Chander Bose, Subordinate
Judge, Sitapur, date^ 27t^ August 1902.

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Beni Pershad



[Vol- vn.

because the plaintiff had not prodnccd the original mortgage-
deed, but only a certified copy obtained from the Registration
Department, and had failed to acconnt for the non-production of
the original.

The learned District Judge supported ibis decision holding
that under the provisions of s. 65 of the Indian Evidence Act and
s. 57 of the Registration Act, the mortgage could not have been
proved by the certified copy from the Registration Department.
The learned Judge observes: — " Section 57 of the Registration
"Act merely provides that a certified copy of a registered
^' document shall be admissible to prove the contents of the
" original, which means, I take it, that the copy is admissible
*' when once it has been decided that secondary evidence of the
"contents of a document may be given. Section 57 does not in
*^ my opinion lay down that a certified copy is a document which
^' may be given in evidence witJiout any other evidence to in-
" troduce it.""

I think that the Courts below were wrong in dealing with
this case. In the first place the defendants never put the plain-
tifE to the proof of the mortgage at all. Their defence was on
other grounds and the plaintiff was not liable to fail even if he
produced neither the original nor a copy of the mortgage-deed.
Section 65 of the Indian Evidence Act provides that second-
ary evidence of the contents of a document, i. «. a certified
copy of the document may be given in various caees. The third
case, clause (c), is when the original has been destroyed or lost
or the party cannot produce it. The 5th case is clause (^), when
the original is a public document within the meaning of s. 74,
the 6th is clause (/) when the original is a document o f which a
certified copy is permitted by any law in force in British India
to be given in evidence. The proof of a document by secondary
evidence under clauses («) and (/} is not made dependent on
the proof of the circumstances detailed in clause (c). A mort-
gage-deed which has been- registered according to law, hafi,
under s. 74 clause (2) of the Evidence Act, become a public docu-
ment, and its esistonoe, condition, or contents may under s. 65
(e) bo proved by secondary evidence t. e^ by a certified copy.

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Vol. Vn.l THE OUDH CASES. 329

In s. 57 of tho Registration Act I find no such qnalification Beni Pershad
as baa been beld by tbe District Judge. This section clearly Sahad Ltd
provides thafc a copy given thereunder shall be admissible to
prove the contents of the original document, and this permission
is, in my opinion, sufficient to bring such copies within the
limits of s. 65 cl. (f) of the Evidence Act.

It appears to me that it is one of the special advantages
arising from the registration of documents that any one desir-
ous of proving the contents of the original is exempted from
proving the circumstances detailed in s. 65 (a), (fe), or (c) of
the Indian Evidence Act ; and the Legislature intended that, for
the purposes of proving the existence or contents of a. document,
but not of course by whom it was executed or attested (which
would depend on proof of signatures etc..)y a certified copy from
the Registration Department should be as good as tbe original.

In these views I allow the appeal and, as the suit has been
disposed of on a preliminary point, setting aside the decisions
of the Courts below I remand the case under s. 562, Civil Pro-
cedure Code for decision on its merits to the Court of the
Subordinate Judge. A certificate for the refund of stamp on
the memorandum of appeal to the District Judge should be
given by him. The ordinary certificate will be given by this
Court. The other costs of appeal in both Courts will be borne
by the respondents.

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) THE OUDH CASES, [Vol. Ylt.


Be/ore Mr. Wells.

Najju Khan and another (Plaintifs) tr. Rax Bali and
lers (Defendants).

Redemption of first mortgage when first mortgagee has par-
ised equity of redemption — Second mortgagee bringing propertt^
sale without offering to redeem firsV/nwrtgage — Mortgage,

The firdt mortgagee bought the equity of redemption of the property mort-
ed to him. Subsequently when the plaint i£E, a transferee of the second
'tgagee, applied for mutation of names in his faTour, the first mortgagee ob-
ed that his mortgage should be redeemed first.

HM^ that the rights of the first mortgagee did not merge' into those of tbc
'tgagor by purchase of the eqoity of redemption and that he was entitled
lave his mortgage redeemed,

Held^ that the second mortgagee is not bound to offer to redeem the first
tgage before bringing the property to sale.

\^Maia Din Ktuodhan y. Kazim Htuain (1> dissented from and lU^a Azivt
Khan V. Mir MofMmed Husain (2) referred to.]

R Appellants. — Mr. E. Manuel and M, Kurhan Ali.

R B.BSP0NDENT8. — B. Basudeo Lai and M. Mohammad Nasim.

Wells, 0. J. 0. — ^The material facts of this case are that
October l&t 1880, Mohammad Abid, Talnqdar of Parai mort-
ged one of bis villages Barela, now in suit, to Lachhmi Narain
i Bhaddu MaL Then on May 14, 1881, be mortgaged it to
) defendant-respondent iRambali for Rs. 5,000 and on Novem-
r 5th 1887, mortgaged his entire taluqa, inclading Barela, to
ii/irab Sadik Ali Khan and Jafar AH Khan. After his death
3se Nawabs sued his son for possession or for sale of the village

♦ A[/aiTist the decreo of C. H. Rol^erta Esq., District Judge, Fyzabad, dated
h March 19a4, confirming the decree of Babn Kali Prasanno gfuha SuU
inate Judge, Bara Banki, dated 30th August 1902.
CI) 1. L. K., 13 All. 432 (2) I 0, C, 105

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You VII.]



making Rambali a party. JThe suit terminated in a compromise,
to which Rambali was no parly, by which the Nawabs might
take possession of the property in execution of the decree if *
certain instalments were not paid.

In 1893 the Nawabs applied for execution of this decree
and got possession, Rambali's objection bein^ dismissed, it
being held that his rights were not afiEected as he was not
a party to the decree.

In 1894 the Nawabs redeemed the first mortgage of
Lacbmi Narain and Bhaddn Mai.

In 1895 in execution of a simple money decree, one Gur-
dayal put up the equity of redemption of the property for sale*
It was purchased by one Bikramjit, brother of Bambali, and it
appears to be admitted that this was Rambali's purchase.

In 1887 the Nawabs partitioned Barela and Sadik Ali Ehan
sold his half share to Rambali. Jafar Ali sold a half share to the
plaintiffs and on their applying for mutation of names Kambali
successfully objected that unless his mortgage was redeemed
mutation could not be allowed. Hence the present suit was
brought for redemption of the whole village on payment of
Bs. 5,000, or half of it on payment of Rs. 2,500.

The Subordinate Judge dismissed the suit.

The learned District Judge confirmed the decision holding
that as the Nawabs compromised their suit with their mortga*
gor's son without making Rambali a party they gaye vp their
position as second mortgagees and accepted in place a money
decree against that property (sic). The Judge further held that
as Bambali through Bikramajit had acquired the equity of
redemption in 1895 his rights as a mortgagee had become
merged in those of the mortgagors.

I will first deal with the learned Judge's second ground for
dismissing the suit. He evidently had in his mind section 101
of the Transfer of Property Act and seems to have thought that
Bambali's mortgage was extinguished by his purchase of the
equity of redemption. But section 101 provides that the mortgage

Najju Khait
and another

Ram Bali
and others.

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[Vol. VI!.

Kajja Khan

aud another


Ram Bali

and othera.

will not be extinguished if the ine^nbrancer declares by ex-
press words or necessary implication that it should continae to
exist or sach continaance would be (or his benefit The
learned pleader for the appellants says ihat there is evidence^
which the Judge has not considered, showing that Rambali
intended that the mortgage should oontinae to subsist. It U
not necessary, however, to consider any evidenee on this point
beyond the fact that, when in 1898, the plaintUb applied for
mutation of names, Rambali objected that his morlgage mast
be redeemed. This was a clear indication that he intended it
to subsist and that he, at that time at any rate, considered it for
his advantage that it should subsist. It cannot therefore be
held to have merged and become irredeemable in consequence
of the purchase of the equity of redemption by Bikri^majit
three years before.

I now come to the effect of the compromise upon which
the learned Judge has dismissed the appellants' claims. He
appears to have considered that the Nawabs could not have
brought the property to sale without having offered to redeem
the prior mortgage and that, as they did, they were no longer iQ
a position to redeem that mortgage. In Mata Din Kasodham.
v. Kazim Husain (1) the Allahabad High Court has, no doubt
held that the second mortgagee cannot bring the property to
sale without first redeeming the first mortgage bat that view
has been dissented from by a Bench of this Court in R<ya Azun
Alt Khan v. Mir Mohamed Htuain (2). I am not aware of nor
have I been referred to any rule of law by which in such a
ease as the present, the second mortgagee is debarred from
suing to redeem die first mortgage. The mere fact that the
Nawabs settled their case with their mortgagor by means of
a compromise without making Bambali a party to it does not
seem to me to affect the position of affairs at all, unless they
were bound to offer to^ redeem Rambali's mortgage before
bringing the property to sale or taking possessi^m of it. And
this, according to the ruling of this Court qnqteii above, they

(10 I. L. B., 18 AIL, 488.

(8.) I 0. 0, m.

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were not obliged to do. If they got a decree for sale after Naiju Khan
contest -and under a compromise they wonld have been entitled, t^.

in view of this Court's ruling, to redeem the first mortgage, and and^others.
it does not appear to me that the compromise should make any
difference. I accordingly allow this appeal ; but as the
respondents have purchased the share of ond of the Nawabs in
Bareia I consider that the appellants should have the second
oE the reliefs they seek viz,, that on payment of Rs. 2500 to the
respondents they should be declared entitled to possession of
half the village Bareia free from any charge of the respon-
dents. Costs in proportion.

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Be/ore Mr. Wells.

BiDYA Dhar (Accused) v. Jagdish Pbrshad (Complainant).

Criminal Revision — Code of Criminal Procedure^ ss. 435 and
39 — Irregularities in proceedings — Jurisdiction of Magistrate—
ode of Criminal Procedure^ s. 145 Clauses (1) and (3).

In a criminal case it was contended that the Magistrate divested himself
jurisdiction by not having in his order, made under section 145 (1), Criminal
ocedore CodCi stated the grounds for his belief that there was likelj to be a
2ach of the peace, and by not having under clause (3) of that section served a
py on the applicant, ffeld^ that the matters referred to were mere irregulari-
s in the proceedings and did not in the least affect the question of jurisdiction.

[Makegh v. yarain (1) dissented from].

OR Applicant. — Mr. Fakhr-ud^een Hasan.

OR Opposite Party. — Mr. E. Manuel.

Wells, 0. J. C. — It is coDtended in this case that this Court
lonid interEere with an order under Chapter XII of the
riminal Procedure Code because the Magistrate had no
irisdiction, having divested himself of jurisdiction bj not having
his order made under section 145 (1) stated the grounds for
s belief that there was likelj to be a breach of the peace and
mot having under section 145 (3) served a copy on the appli-

Such a view, it is urged, was taken by the Calcutta

igh Court in Mahesh v. Narain (1). I am not prepared

agree with that ruling. The matters referred to are mere

regularities in the proceedings. They do not in my opinion in

* Against the order of E. P. Fawcett Esq., C. 8., Joint Magistrate, Gonda.
^ 12th Julj i90i«

(1) I. L. B., 27 Calc 911.

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the least affect the qxiestion o£ jurisdiction. Even if the}
I doubt if this Court could interfere in the face of the provi
of section 435 (3), Civil Procedure Code. The High Courts
interfered in such cases where they have held that then
been no jurisdictioQ ; but this has been under the Charter
20, 25 Victoria c. 104, wliich does not apply to this Cour

The application is dismissed.

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Before Mr, Wells,

Maha Sinqh {Plaintiff) v, Bhooa and others {Defendants),

Suit by a co^sharer for demolition of well constructed by a
d person unth the consent of other co-sharers — Remedy of
-consenting co-sharer against the person building vcith the
ient of other co-sharers.

When a co-sharer ha« constructecl a building or a well on land jointly
Tging to him and other co-sharers without their consent, they are not
Led to have the building or the well removed unless they can show material
ge, or unljss they have taken measures in time to prevent construction of
milding or the well; but their remedy is by partition. And the same
iiple applies to the case of a person constructing a well on land jointly
giog to several co-sharers some of whom do not assent to its oonstruction.

For Appellant. — B. Basudeo Lai,

For Rbspondbnts I and II. — Syed Wazir Hasan bolding

brief of M. Mohammad Nasim,

Wblls, 0. J. C. — The appellant in this case with 3 others
> have not appealed, sued the respondents on the allegation
b they were the owners of a plot of land, 2 bighas in extent,
which the defendants had built a well without their consent.
y accordingly sued for possession of the land by demolition
he welL

It appeared in the course of proceedings that the plot in
was a bit of oomnK)n waste land belonging to 32 co-sharers,
he neighbourhood of a hamlet occupied by the defendants,
adjoining a road. Out of the 32 co-sharers, 16 bad per-
bed the defendants to construct the well. According to the
nt the construction was commenced in October 1901 ; the
ellant took no steps to interfere with the construction at
but brought this suit in March 1902.

* Against the decree of A. Sabonadiere Esq., District Judge, fiardoi dated
July 1903, modifying the decree of Babu Hem Ghunder Sen, Mooii^
labad, dated 20th April .1903.

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The learned District Jadge has decided that the appellant Mafia Singh


is not entitled to have the well destroyed, as the respondents Bhoga
have done nothing which has converted the land to their exclu-
sive use or that of the zemindars other than the appellant.

It is urged in appeal that he has been influenced by con'^i-
derations foreign to the case, and that be ought to have held
that the construction of the well without the appellant's consent
was an injury to his title.

For the respondents I have been referred to the following
authorities : Nocuri Lall Chukerhuity v. Bindabun Chunder
Chukerbutty (1); Joy Chunder Rukhit v. Bipro Chum Rukhit (2);
Paras Ram v. Sherjit (3) ; and Tilok v. Ramadhin (4:).
The gist of all these authorities is that where a co-sharer has
constructed a building on land jointly belonging to him and
other co-sharers without their consent they are not entitled to
have the building removed unless they can show material
damage, or unless they have taken measures in time to prevent
construction of the building. It was held that their remedy
was by partition.

I think the present case should be governed by the same-
principles. There seems to have been no check offered to the
constr action of the well by the appellant and he has suffered
no material damage ; in fact he has obtained a material advan-
tage, only he is too shortsighted to perceive it. The well benefits
the hamlet occupied by bis tenantry and what conduces to their
well-being must conduce to the benefit of his estate. If he is
aggrieved at the well being constructed with the consent of
other co-sharers and not with his own, it is open to him to
seek a partition, in which the plot containing the well might
be assigned to those co-sharers who had assented to its cons-
truction. I am certainly not prepared to give him the relief
he seeks in the demolition of the well, and I dismiss this appeal
with costs in all Courts.

(1 ) I. L. R., S Calc, 708. (2) I. L. R., 14 Calc, 236.

(3) I. L. R., 9 AH., 661, (4) S. C. 270.

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Before Mr. WelU.

Nov 11 Meghu (Accused) v. King-Em1»bror (OppoHte Party,)

Security to keep the peace after conviction on a summary
trial — Imprisonment in default of furnishing security not a part
of a iubstantive sentence — Ifonrappealable sentence — CAmiiud
Procedure Code^ s. lOG-^AssauU^-^Indian Penal Code, s.323^

There is nothifig in the law which pK>hibits the making of an order nnder
8. 106 of the Code of Criminal Proeedure after a conviction nnder a. 323, Indian
Penal Code, on a summary trial, and the imprisonment to bo nndergonc in
default of furnishing security is not a part of a substantive sentence. Tbe
sentence not being in itself iappoalable docs not become so bccante tbe persoa
Qonvicted has been ordered to find security to keep the peace*

Fob Applicant — Mr. F, R. Bomanji.

For Oppo8ITB Party — The Government Pleader.

Wblls, 0. A. J, C— The applicant in this case was convicted
under section 323, Indian Penal Code, for shoe-beating com-
plainant, and sentenced to one month's imprisonment, and under
section 106 of the Criminal Procedure Code called u|>on to fur-
nish security to keep the peace for six months.

The trial was summary, and the Sessions Judge rejected
an application for revision.

In this Court counsel for applicant contends that a convic-
tion under section 323, Indian Penal Code, is not a conviction
for assault or a breach of the peace justifying an order under
section 106, Criminal Procedure Code, and that such an order
should not bo passed in a summary trial as it may involve a
person undergoing more than 3 months' imprisonment.

* For revision of the order of C. H. Roberts Esq., Sessions Judge, FjEibad,
dated 1 5th October 1904, upholding the order of Kasi Aziz-nd-deen* Abraad,
Bepufy Magistrate, Fysabad, dated lOtb Ogtober 1904.

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Vol. Vn.l THE OUDH CASES. 339

I cannot accept either of these contentions. Causing hurt Megha
intentionally implies an assault and a breach of the peace, and King-
it would be too preposterous to hold that a person may be bound °*P«^^or-
over under section 106, Criminal Procedure Code, who has
assaulted another by giving him a slight slap on the face
which did not cause any real hurt but cannot be bound
over after inflicting a severe beating which did cause hurt.
There is nothing in the law which prohibits the making of
an order under section 106 after a conviction on a summary
trial, and the imprisonment to be undergone in default of
famishing a security is not a part of a substantive sentence.
The sentence, not being in itself appealable does not become
so because the person convicted has been ordered to find
security to keep the peac0.

In my opinion the Magistrate after passing sentence in a
summary trial was competent to demand security to keep the

Online LibraryOudh. Court of judicial old caThe Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. → online text (page 28 of 38)