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

ation Act where, as here, the contract is in iwriting registered.
I hold that the plaintifiF is entitled by way of damages to in-
terest for six years previous to the suit The question remains
whether such damages can be held to be a charge upon the
property. The Allahabad High Court have held more than
once that interest awarded by way of damages cannot be con-
sidered a charge upon the property. The Calcutta and Madras
High Courts have held that it can. The Bombay High Court
does not seem to have decided the question in any case governed
by the Transfer of Property Act. In Chajmal Das v. Brij
Bhukhan Lai (1), which was a suit for sale, their Lordships of
the Privy Council seem to have treated interest awarded as
damages as being on the same footing as interest due upon the
terms of the bond, but the point was not decided. It may be
that in a case where the land is liable to be sold for the recovery
of interest upto the date on which the principal sum is payable
interest awarded as damages for non-payment of the principal
should be held to be charged on the land and included in the
d^rde for sale, but in the present case I have held that it was
not the intenUon of the parties that the interest contracted to
be paid should be a charge on the land and it follows therefore
that interest awarded as damages cannot be held to be a charge
on the land.

I accept this appeal, set aside the decrees of the Courts
below and pass a decree of Rs. 450 and costs upon this sum in
all three Courts, to be recovered by sale of the mortgaged pro*
perty, the decree being prepared in the usual form and six
months' time being allowed for payment, and I pass a money
decree for the damages, viz, Rs. 243 and interest from January
31st 1902 to realisation at the rate of six per cent, per annum
-and for costs on Rs, 243 in all three Courts.
(1) 1. L. R.. 17 All.. 511.



Digitized by VjOOQIC



14 THE OUDH CASES. [Vol. VIL

RENT APPEAL, No. 63 OF 1901.*



Before Mr. Chamier.



vr^^^^'o Raja Ram (Defendant) v. Musammat Mbnda (Plaintif).



Oudh Rent Act ss. 108 cl. 16, 129 and 132—Compen8atum
for revenue paid hy lambardar on account of joint lambardarj
Suit for — Limitation,



A suit under cl. 16 of s. 108 of the Oadh Rent Act for compensation for
revenne paid by a lambardar on accoant of a joint lambardar is governed not
by section 132 but by s. 129 of the Act and should be instituted within one
year from the date of the accrual of the cause of action.



For Appellant. — B. Bar Dayal.
For Respondent. — Mr. Rozdon.

Chamier, a. J. C. — ^The plaintiff-respondent and the
defendant-appellant were joint lambardars of a mabal. The
suit is one tinder clause 16 of s. 108 of the Rent Act for
compensation for revenue paid by the plaintiff on account of
the defendant. The lower appellate Court has found that the
sums so paid amount to B&-1 18-10-0 and has passed a decree
in favour of the plaintiff for that sum. Upon the question of
limitation raised by the defendant the lower appellate Court
held that the suit was ^for the recovery of an arrear of revenue^^
within the meaning of s. 132 of the Rent Act. If this view is
correct the prescribed period of limitation was three years from
the last day of Jeth of the Fasli year in which the arrears fell

* Against the decree of A. Sabonadiere Esq., District Judge, Hardoi, dated
the 28th February 1901.



Digitized by VjOOQIC



Vol. VIL] THE OUDH CASES. 15

due and the suit was within time« If the snit is not governed by Baja Bam

». 132 then s. 129 applies and the suit is barred by limitation Musammat

as the various sums paid by theplainti£E were all paid more than Menda*
one year before the suit was brought. ^

The learned Judge disposed of the question with the
femark that in his opinion the ^^essence of the suit was for the
recovery of arrears of revenue" though it might be called a suit
for cbmpensation. In support of this view it was pointed out that
suits provided for by the first part of the clause 16 of s« 108, t. e.
suits by landlords or pattidars for arrears of revenue or rent are
governed by the three years rule and it was argued that the
Legislature cannot have intended that the suits provided for by
the last part of the clause which also relate to arrears of
revenue or rent should be governed by a different rule of
limitation. This argument has very little force, for between
the first and the last part of the clause is a provision for suits
for village expenses and other dues for which the period o£
limitation is certainly one year under s. 129. I see no reason
why the Legislature should have intended that all suits
provided for by this clause should be governed by the same
rule of limitation.

The first part of the clause speaks of ^^arrears of revenue
or rent'' while the last part speaks of ^^compensation for revenue
or rent.'' The difference in the language is striking and is
I thmk not accidental but intentional. In the first
place it may be observed that sums claimed in a suit of
this kind need not have been at any time arrears of
revenue within the definition contained in section 12 of the
Act. Next, if a suit under the last part of the clause were held
to be a suit for an arrear of revenue or rent, as the case may
be, within the meaning of s. 132 the result would be that if
one of several joint lambardars was compelled to pay revenue
or rent more than three years after the end of the Fasli year
in which it fell due he would not be able to recover it from
bis joint lambardar though he instituted his suit the day after



Digitized by VjOOQIC



16 THE OUDH CASES. [Vol. VIL

Baja Ram paying the money. Such a thing is not likely to happen in the
Moaammat case of revenue but might easily happen in the case of rent



Several o£ the sums claimed by the plaintiff in the
present suit were paid long after the close of the Fasli year
in respect o£ which they were due so that if s. 132 of the
Act applies to the present suit limitation began to run against
the plaintiff in regard to these sums before any cause of action
accrued to her.

If one person has the right to sue another for recovery
of sums paid by him on behalf of that other the starting point
of limitation and the date of accrual of the cause of action are
usually the same namely the date of the payment, as for
example in the cases provided for by arts. 61 and 99 of sch. il
of the Limitation Act. It would be a strange anomaly if the
starting point of limitation for a suit like the present one were
to be the close of the Fasli year which has nothing to do with
the <;ause of action. Therefore I think that the Legislature
advisedly used the word " compensation '* in the last part of
clause 16 of s. 108 of the Rent Act. I hold that this suit is
not one for an arrear of revenue within the meaning of s. 182
of the Act but falls within the general s. 129. The suit was
therefore barred by limitation and should have been dismissed.

I accept this appeal set aside the decree of the lower app^ate
Court and restore the decree of the first Court dismissing die
suit. The defendant will get his costs in all three Courts.



Digitized by VjOOQIC



Vol. VILl THE OUDH CASES. 17

SECOND CIVILE APPEAL, No. 480 OF 1901.*



Before Mr. Scott and Mr, Macleod,



Salabat Singh (Defendant) v. Ram Kishan and others
{Plaintiffs).



Representative of deceased appellant^ Jurisdiction of Court
to which a case ha^ been remanded^ to bring on record — Code of
Civil Procedure ss. 365 and 566 — Jurisdiction — Remands



Iteldj that a Court to which a case has been remanded under s. 566, Civil
Procedure Code, has jurisdiction to act under s. 365 of the Code and to do any
•ct which may be necessary to carry out the order of remands



1903.
Jan. 4.



I



For Appellant. — S. Zahur Ahmad.

For Rbspondbnt. — M. Muhammad Nasim and i S. Wazir
Hasan.

Scott, J. C, and Macleod, A. J. C. — On the issue
remitted by this Court for trial, the lower appellate Court has
found that the yalne of the grass taken by the appellant is
Rs. 10 and that the respondent has failed to prove that the
appellant took any fish from the tank or fruit from the grove
between the 13th June, 1897, and the date on which the suit
was instituted. At the hearing the only objection to this find-
ing which was pressed is that it cannot be accepted as this
Court has not brought the legal representatives of appellant,
who died after the order of remand, on the record. The lower
appellate Court has itself brought their names on the record in

* Against the decree of E. A. EendaU Esq., District Judge, Gonda dated 10th
Jul J, 1901, modifying the decree of Nawab Abdus-salam Khan Subordinate- Judge
Bahraich dated 22nd December, 1900.



Digitized by VjOOQIC



18



THE OUDH CASES.



[Vol. VIL



Salabat
Singh.

V.

Bam Kishan
and otbere.



place oE that of the deceased appellant and the learned pleader
for the respondent contends that it had no jarisdiction to do so
as " the Court" in s. 365, Civil Procedure Code, means in such a
case the court in which an appeal is pending and does not include
the court to which a case may be remanded under s. 566 Civil
Procedure Code. We are of opinion that the objection has no force.
When the appellant died the case was pending in the Court of the
District Judge for a finding on the issue remitted for trial by it and
no proceedings could ordinarily be taken in this Court until the
finding was returned. It might be argued with equal force
that the District Judge could not grant an adjournment of the
hearing or issue summonses for the attendance of witnesses,
if any . were necessary, in compljring with the order of this
Court. We are of opinion that the lower appellate Court had
jurisdiction to do any act which was necessary to carry out that
order and that the representatives of the deceased appellant
were properly on the record when the finding on the issue remitt-
ed for trial was recorded. That finding must therefore be
accepted and the result is that we allow the appeal, set aside
the decree of the lower appellate Court and restore that of the
first Court with costs in this and the lower appellate Court.



Digitized by VjOOQIC



Vol. VIL] THE OUDH GASES. 19

SECOND CIVIL APPEAL, No. 16f OF 1902.*



Before Mr. Spankie..



Sybd Kashid-ud-din (Defendant) v. Wali Jan Beg 1903.
(Plaintif). Nov. 10-



Pre-emption^ mit for — Co-sharers in a grove ^ position of
after partition — Member of village community not residing in the
village in which he has rights in land — Oudh Laics Act s. 9.
cl. (5).



The plaintiff, the defendants and other persons jointly owned a grove; bat
there was a partition and the plaintiff acquired a distinct and separate part of
the grove, and the defendants did the same. The defendants sold their share
whereupon the plaintiff brought a suit for pre-emption, and alleged in his
plaint that he wanted his right of pre-emption enforced because he had a < share
in the grove and the defendants also had a share in it which they had sold. The
plaintiff did not reside in the village in which the grove was situated.

ffeldt that the plaintiff and the defendants were not co-sharers in the grove
at the time of the sale, but that the plaintiff was a member of the village
community within the meaning of s. 9 cl. (4) of the Oudh Laws Act although
he did not reside in the village to which the grove in suit belonged, and that
be was* entitled to a decree on that ground.



For Appellant. — S. Wazir Hasan^ holding brief o£ M.
Muhammad Nasim.

For Respondent. — Mr. E. Manuel^ holding brief of Babu
Basdeo Lai.

* Against the order of W. R. G. Moir Esq., District Judge, Sitapur,
dated the 14th February, 1902, confirming the decree of Babu Ram Prasad,
Subordinate Judge, Khcri, dated the 28th January 1901.



Digitized by VjOOQIC



WaUJan



20 THE OUDH OASES. [Vol. VIL

^^d^^'"^' Spankib, a, J. I C— This appeal raises the following

questions, namely (1) whether the District Judge, in deciding
that the plaintifiE had a right of pre-emption as a member of the
village community, decided the case on a ground not put for-
ward by the plaintiff in the Court of first instance, and if so,
whether the plaintiff should be allowed to recover on that
ground ; (2) whether the plaintiff can be regarded as a member
of the village community, seeing that he is not a resident of the
village, and (3) whether the plaintiff and the purchasers were
co-sharers in the grove to which the suit relates at the time of
the sale*

I take the last question first At one time the plaintiff,
the sellers and other persons jointly owned the grove ; but
there was a partition, and the plaintiff acquired a separate and
distinct part of the grove, and the defendants did the' same*
The defendants sold their part, and this is the sale which has
led to this suit. The District Judge held that the plaintiff and
the sellers were not at the time of the sale co-sharers in the
grove. I agree with him. The partition converted what was
a joint holding into separate holdings. This indeed is not
disputed. It was said however that at some future time the
holders of the grove might become liable to payment, and that
in that case their liability would be joint. But there is no
evidence that the holders would be jointly liable for the rent of -
the entire grove, if they became liable to pay rent. I decide
therefore that the plaintiff and the sellers were not co-sharers
in the grove at the time of the sale. The plaintiff can therefore
only succeed if he can be allowed to recover on the ground that
he is a member of the village community, and if he is such a
member. Tliis brings me to the first question.

Looking at the issues the plaintiff would seem to have
claimed the right of pre-emption on the ground only that he
and the sellers were co-sharers, but looking at the plaint,
I cannot say that he limited his case to that ground. What he
says in his plaint is that he wants his right of pre-emption
enforced because he had a share in the grove, and the



Digitized by VjOOQIC



Vol. VIL] THE OUDH CASES. 21

sellers had a share in it also, and they had sold it. ^^^a^^"^

I£ the fact that he has a share in the crove makes him a mem- ^ ,T' ,

^ Wall Jan

ber o£ the village community, it woald be consistent with his Beg.

plaint to give him a decree on the ground that he is a member
of the village community. On the whole Ij^am not disposed to
differ from the District Judge and to hold that the plaintiff
changed his case when in the District Judge's Court he pleaded
that he had a right of pre-emption as a member of the village
community. I therefore think that in deciding that the plaint-
iff had a right of pre-emption as a member of the village com-
munity, the District Judge did not decide it on a ground not
put forward by the plaintiff in the Court of first instance. It
follows that if the plaintiff can be regarded as a member of the
village communify he should be allowed to recover.

It is contended on behalf of the purchaser that as the plaint-
iff is not a resident of the village, he is not a member of the
village community, within the meaning of s.9, clause (4), Oudh
Laws Act. It may be that a person is a member of the village
community, within the meaning of that section although he has
no proprietary, under-proprietary or other interest in land of
the village ; but the contention for the purchaser, if sound,
would exclude from the category of members of the village com-
munity persons having a proprietary or an under-proprietary
right in land of the village if they did not appear J:o live in the
village. No case of this Court was cited in support of the con-
tention. I do not think that it is supported by the case of
Rahimuddin v. Rewal (1) or by the judgment of Burkitt, J., in
Drigbijae Singh v. Court of Wards (2). I think that it was
intended by the section to include in the expression " village
community'* persons like the plaintiff having under-proprie-
tary rights, in land of the village, although they do not reside
in the village.

The appeal fails, and is dismissed with costs.
(1) 7 CaU W. N., 498. (2) 5 Oudh Caaee, 266.



Digitized by VjOOQIC



22 THE OUDH CASES. [Vol. VII.

SECOND CIVIL APPEAL, No. 146 OF 1902.*



Before Mr. Macleod and Mr. Chamier.



1903. Wajid Khan (Plaintiff) v. Ratan (Defendant.)
Nov. 27.

Pre-emption^ suit for — Sale to co-sharer and stranger with
specification in the deed of each vendee's share in property sold.



^sold his share in a village to ^ a co^harer and S a stranger. The deed
. of sale stated that the property was sold for Bs. 600 to R and S in equal shares.
The plaintiff a oo-^harer in the village claimed pre-emption against R and S,

Held, that the shares of the vendees were specified in' the sale-deed and that
therefore the plaintiff was not entitled to a decree for pre-emption against R
who was a co-sharer.



For Appbllant. — M. Muhammad Nasim.
For Rbspondbnt. — Mr. Mumtaz Husain.

Maclbod, a. J. C. — ^This is a suit for pre-emption.
Chhabba, the third defendant in the suit, sold bb share of
6 biswansis odd to Ratan, the second defendant, who is also a
co-sharer in the village, and Sarja, the first defendant, a
stranger. The plaintiff, a co-sharer in the village, claimed pre-
emption against Ratan and. ^Sarju./ The deed of sale states
that the property is sold for Rs. 600 to Ratan and Sarja in
equal shares (6a hissa masawi). The Court of first instance
relying on the case of Manna Singh v. Ramadhin Singh (1)
held that Ratan could not resist the suit for pre-emption in-
asmuch as he had joined a stranger with himself in the

* Against the decree of M. Mohammad Asghar, Subordinate Judge, Unao,
dated 27th January 1902 modifying the decree of Pandit Liladhar Joshi,
Monsif, Safipor, dated 30th September 1901.

(1) I. L. R., 4 AU., 252.



Digitized by VjOOQIC



}



Vol. VII.] THE OUDH CASES. 23

purchase of the property. The lower appellate Couft telying W*^J*^ ^^^"
on the case of Sheobharos Rat v. Jiach Rai (1) held that, the Ratan.
respective shares of Batan and Sarju having been specified in the
deed of sale, the plaintifE was not entitled to pre-emption as
against Ratan, a co-sharer. The plaintiflE appeals against
the portion of the decree dismissing his claim against Batan.

It is not disputed that when property is sold jointly to a
co-sharer and a stranger and their respective shares are not
specified, the co-sharer vendee cannot resist pre-emption irt
respect of the whole property covered by the deed of sale.

Two questions are raised in this appeal. Mr. Muhammad
Nasim for the appellant contends first, that there was no separate
specification of the shares sold to Batan and Sarju, and second-
ly, that, even if there had been such a separate specification ^
the respondent having associated a stranger with himself in the
purchase is not entitled to resist the appellant's claim to pre-
emption even as regards the share sold to himself.

As regards the first point, the specification of shares, the
case of Murad v. Mine Khan (2) has been referred to. In that
case an undivided share was sold to several persons and the
deed stated that the vendees' shares in the property sold would
be in proportion to the money paid by each of them and a
detail was given showing the sum paid by each vendee. The
Court held that this did not amount to a specification of the
respective shares.

The question as to what amounts to a specification of shares
was referred to in the case of Ram Nath v. Badri Narain (3).
Edge, C. J., Blair and Bannerji, JJ, said, "lu our opinion
^^ where in cases of this kind the sale-deed specifies the interest
" or share purchased, so that it shows what was the particular
" property purchased by each of the vendees, whether by definition
" of share or plot, the vendee co-sharer, who is a co-sharer of

(1) 1. L. R., 8 All., 462. (2) No. 94, P. R., 1896, p. 449.

(3) I. L. R., 19 AU., 148.



Digitized by VjOOQIC



24 THE OUDH CASESv [Vol. VIL

Wajid Khan " equal rights of pre-emption with the plaintifiE co-sharer,

Baton. " cannot be disturbed in the rights acquired by him under the

" sale-deed, and it is immaterial whether the proportion o£ the

" purchase-money found or to be found by each of the rendees

** is or is not specified in the sale-deed,"

In my opinion, so far as regards this point the case of
Murad v. Mine Khan (1) was not correctly decided. In the
present case Ratan and Sarju had each a half share in the
property sold. I would hold that there was a Specification of
their shares in the deed of sale.

With regard to the second point, namely, that even if
there is a specification of shares, the co-sharer by associating a
stranger with himself has forfeited his right, Mr. Muhammad
Nasira contends that the earlier rulings of the Allahabad High
Court and of the Calcutta High Court and the Punjab Chief
Court are in his favour and that the later rulings of the
Allahabad High Court are erroneous.

Though the present question is concerned only with the
case of a co-sharer associating a stranger with himself in a
purchase there has been certain amount of discussion with
respect to the case of a co-sharer associating a stranger with
himself in a claim for pre-emption. In Bhawani Prasad v.
Damru (2) Tyrell and Mahmood, J J., held that there was no
distinction in principle between these two cases. A Bench of
this Court however dissented from that view and held that when
a pre-emptor joined with himself as co-plaintiff one having no
right of pre-emption it was a case of mis-joinder of plaintiffs
and that the name of the stranger should be struck out of the
plaint, and that on that being done the co-sharer was entitled
to proceed with the suit for pre-emption Ahdulla v, Mu Wahid-
un-nissa (3).

The question as to the position of a co-sharer who has
associated a stranger with himself in a purchase, the respective



(1) No. 94, P. R., 1896, p. 449.

(2) I. L. R., 6 AU., 197.

(3) 1. O. C, 308.



Digitized by VjOOQIC



toL. VII.] *HE OUDH CASES. 25

Bhares being specified, has not yet been decided in this Province, Wajid^Khan
It will be necessary to examine the reported cases in other Ratan,
Provinces and to ascertain, if possible, on what principle th6
conflicting rulings were respectively based. It will be conve*
nient.to'. examine the cases in chronological order.

The two earliest cases in the North-Western Provinces
Sheodyal Ram v. Bhyroo Ram (1860) and Ghineshee Lai v*
Zaraut AU (1870) are referred to in Sheobharos Rat v% Jiach
Rai (1). It is there stated that, '* In the ;case of Sheodyal Ram
" v. Bhyroo Ram it was held by three learned Judges of th^ late
" Sudder Dewany Adalat of these Provinces, that the sale of a
^' share of an estate to a stranger jointly with a co-sharer of the
" village was in violation of the terms of the voojihularzy the
" express object lof which was to prevent the intrusion
^* of strangers, and that as the sale was one and indivisible, the
" claimant of pre-emption was entitled to a decree in respect of
" the whole property sold. Then in the case of Gune^e Lai
" V. Zaraut Ali^ a Division Bench of this Court carried the rule
" further by applying it even to a sale-deed in which the shares
" purchased by the strangers were separately specified."

The next case is Munna Singh v. Ramadhin Singh (1881)
(2). It was the case of a sale to a co-sharer associated with a
stranger with a specification of shares. Following the case of
Guneshee Lai v. Zaraut AU it was held that the co-sharer
vendee could not resist the claim of pre-emption even in respect
of his own specific^share.

The next case b Bhawani Prasad v. Damru (1882) (3).
That was a suit for pre-emption by a co-sharer associated with
strangers. It was held that the fact that the co-sharer suing
for pre-emption had joined with himself two other persons who
had no such right must be taken to amount to such acquiesc-
ence in the sale as] estopped him in equity from complaining
of the sale and that no distinction in principle existed between

(1) I. L. R., 8 AU., 462. (2) 1. L. R., 4 AU., 262.
(3) I. L. R., 5 AU., 197.



Digitized by VjOOQIC



26 THE OUDH CASES. [Vol. vn.

Wajid Khan the case of a ce-sharer joining a stranger with himself in a suit

Batan. for pre-emption and the case of a co-sharer joining a stranger

with himself in a purchase of property. Nothing was said as

to whether a specification of their respective shares made any

difference in the latter case.

The next case b Sheobharoe Rai v. Jiack Rat (1886) (1).