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

Frame of suit— Tielief—- Indian Limitation Act^ sck. ii, arts. 65,120
and 132 — Right to sue for arrears of money due under settUm&nt decree
witheut proving receipt of the money since the decree— Code of Civil
Procedure, ss, 13, 43, and 371.] At the first regular settlement
the defendants obtaine<l a decree against the Government for pro-
prietary rights in a certain village. A suit was brought at the
same settlement by the plaintiff for superior proprietary rights in
the same village and was dismissed, but the decree dismissing it
decreed to him 10 percent, on the Government revenue. Subsequent-
ly the plaintiff sued to have this decree set aside, and to recover
possession of the village or to obtain an increased amount of
" malikana.'* This suit abated after which the plaintiff brought
the suit for arrears of the 10 per cent, on the Government revenue
decreed to him and he based bis claim upon the settlement decree.
The relief for which he asked was **that a decree for
*' malikana** dues in respect of the village with costs of the suit
be passed in his favour against the defendants.'*

Held, that the money claimed was not rent, and that the suit
not being one for arrears of rent within the meaning of the Oudh
Rent Act was cognizable iby the Civil Courts.

Held further, that the 10 per cent, on the Government revenue
decreed to the plaintiff was a charge upon the village.

Where a plaintiff is suing for money which as a matter of fact
is charged upon immovable property, the suit may be regarded
as one to raise the money out of the property, unless it is quite
clear tbct the plaintiff only intended to ask for relief against the
person of the defendants and not for relief against the property.
Having regard to the circumstances of the present case, it was held
that this suit might properly be regarded as one for money charged
upon immovable property and that therefore it was governed by
art. 132 and not by art. 120 or by art. 65, sch. ii of the Indian
Limitation Act.

Upon the contention that the suit was barred by limitation
because the plaintiff had not at any time received his share of the
profit or any part thereof it was held that the plain tiff*s right to
receive the money having been established by the settlement
decree, he could sue for arrears for twelve years next before the
suit without proving that he had received the money since the
decree.



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Page,

Held that the suit was not barred by sections 13, 43 and 371
of the Code of CUil Procedure.

Kaja Mohamad Mumtaz Ali Khan v. WazirKban and others 108
ARREARS OF RENT, SUIT FOR^Kabuliat executed m stamp payable
for lease and registered— Transfer of Property Act, s. 107
— HesjnAicata.l The plaintiff-appellant sued the respondent for
arrears of rent alleging him to be a lessee of certain villages. The
respondent admitted he had executed a fcaftl/^*fli in favour of the
»p4>ell4Mit, that he had been placed in possession of the villages
and had collected the rents. The claim however was resisted on
the ground that the relation of landlord and tenant^ or theka<lar,
<iid Hot exist between the parties inasmuch as there had been no
registered lease executed by the appellant in favour of respondent
as required by law. In a previous suit for arrears of rent brought
by the appellant against the respondent on the lease now ia
question the respondent never raised the defence that there was
no valid lease and a decree was passed for an amount agreed upon
by the parties.

Held, that the kabidiat executed by the respondent was a lease
within the meaning of section 107 ot the Transfer of Property Act
and that the relation of landlord and tenant subsisted between the
parties. Section 107 does not specifically lay down that the lease
taust be by a registered instrument executed by the lessor, and
having regard to the t>revailing practice in these provinces, and
section 2 (16; of the Stamp Act a duly stamped regi&tere<l instru-
ment executeil by the lessee and accepted by the lessur either in
writing or by his acts, constitutes a gooil lease and establishes the
relation of landlord and tenant^^ween the parties.

Held further, that the defence raised in the case-wms barred
by the priuciple of res judicata,

Hon'Ue Maharaja Sir Pariab Narain Singh ©. Bagho Behari 169
ASSAULT. See Security to keep the peace after conviction on a sum-
mary trial .,, 338
AWARD BY BRITISH INDIAN ASSOCIATION. See Guzara land, suit

for possession of ... 90

AWARD MADE BY FINANCIAL COMMISSIONER IN DISPUTE RE-
GARDU7G a Al^HTESAUCE— Mules oftJie Brltsh Indian Association—
Act I of 1869, s, JJ.] Against S S, a Talukdar, A and S put in claims
to be entitled to shares in the estate. Thuir claims were dismissed
by the Financial Commissioner, Mr. Davies, on the 27th August
1867 but he advised them to accept any maintenance awarded to
them by the Committee of Talukdars. Subsequently on the 9th
January 1869 the Financial Commissioner made the following
award in respect of their claims :—



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X GENERAL INDEX.

Page.
"The sharers in compliance with Mr. Davies* order hare

applied to the Talukdars* Committee The case has

now come. to me for disposalj^not judicially but as supervisor of the

Talukdars* proceedings A who is childless will

receiye for bis life a two annas share in the estate, 8 and his
beirs will receive in perpetuity a 3 annas share in the same estate.
On the death of A his share will be divided equally, one anna
will revert to 8 S andi bisjieirs and successors^ and one anna will
go to /S and his successors."

A died and one anna accordingly went to S making his share
up to 4 annas and one anna reverted to 88- 8 was put in posses'
sion of land having a gross rental equivalent to the profits of a 4
.annas share.

The plaintiff the son of 88, sued the defendants, the descen*
dants of 8 alleging that the award of the 9th January 1869 was in
the nature of an award for maintenance and must be read subject
to the rules of the British Indian Association framed in 1867 and
that S having died he was entitled under those rules to 25 per cent,
of the gross rental from the first generation of his heirs as rent
I payable by the defendants to himself. The defence set up was

that the Financial. Commissioner was acting purely as an arbitra-
tor and not as in any way connected with^the British Indian
Association and that the rules of the British Indian Association
jcould not be read into that award the effect of which was to
confer a share in absolute proprietary right on 8 and his heirs.

Held^ that the Financial Commissioner when making his
award of 9th January 1869 was acting as a private gentleman and
not in any official capacity and that his award should not be
treated as an award made by the British Indian Association or
read subject to the rules of that Association.

Ganga Bakhsh u. Dalip Singh and others ... 218

AWARD NOT FILED IN COURT WITHIN SIX MONTHS, ENFORCE-
MBNT ov—8pecifio performance— Joint propeHy, suU for division
of—LimUation Act. ScK iiy art. 113— Code of avU Procedure *.
525.] The fact that an award has not been filed in Court does not
make it invalid, the provisions of^ s. 626, Civil Procedure Code,
being not imperative.

\Subbaraya Chettiuy. Sadasiva ChMti (1) and Nariingh
Qariwan v. Puttoo Ostagur (2) followed.]

Held also that a suit to enforce an award cannot be treated as
a suit for specific performance of contract within the meaning of



(1) I. L. R. 20 Mad., 490. (2) 20 W. R. 420.



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GENERAL INDEX. xi

Page.

art. 113 of the second schedule to the Limitation Act of 1877.

Shso Narain v. Beni Madho (1) followed.

Held also that where by an arbitration a property has been
awarded jointly to some members of the family alone, a snit can
be broaght by any of snch members against the others for the
division of that property alone without including the property
which jointly belonged to the whole family.

Lachmi Narain y. Janki Das (2) followed.

Tbakur Sheo Narain Singh and others v, Thakur Bishunath
Singh ... 869



B.

BLOCKINa A ROAD, REMEDY OF CO-SHARER AGAINST OTHER
00-SHABBBS FOB. See Possession of shamilat land and demolition
of construction thereon blocking a road, salt against co-sharer
for ... 86^

BONA FIDE MISTAKE, INSTITUTION OF SUIT THROUGH. See

Plaintiff, addition of, after commencement of suit ... 193

BRITISH INDIAN ASSOCIATION, RULES OF THE. See Award by

Financial Commissioner in dispute regarding maintenance ... 218

" BROTHERS," MEANING OF. See Oudh Estates Act (I of 1869) 88. 8,

13, 14, 15, and 22 cL (6) construction ... 248

BURDEN OF PROOF. See Nazul land in Oudh, suit for possession of ... 65

BURDEN OF PROOF UPON PLAINTIFF WHEN PARDANASHIN
WOMAM DEKiES BZBOUTiOK OF DSBD. See Pardanashln woman,
denial of execution of deed by .^ 292'

C

CAKTONMENT CODE, 1899, SS. 83 AND BB—Notiee for repairs of
building — " Insanitary state " and " defects" meaning of—Pre^
sumption as to issue of notice by duly constituted authority — Crimi'-
nal revision — Criminal Procedure Code^ s, 439.] The Cantonment
Magistrate issued a notice under s. 83 of the Cantonment Code to
the applicant to the effect that a house belonging to the latter
bad been declared both ruinous and insanitary by expert opinion
and that he was thereby directed to carry out the repairs indicated
in an attached report which recommended general repairs. The
applicant having failed to comply with the notice was prosecuted
and convicted.

ffeld that for the purposes of a prosecution under 8. 85 read
with 8. 83 of the Cantonment Code, 1899, it is not necessary for the

(1) I. L. R. 23 All., 285. (2) I. L. R. 23 AU., 216.



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xii GENERAL INDEX.

Page.

prosecution to begin by proving that the authority which issue*!
the notice was duly coustiiuted, and the Court ought to presume,
until some eyidcncc is given to destroy the presumption, that the
Cantonment authority use<i the regular and lawful procedure, and
that the common course of business was followed in its procetlure,
and it is for the person raising the objection to give some evidence
to show that it would not be safe to make such a presumption.

Held that, the phrase insanitary state* in 8. 83 does not mean
an insanitary state generally, but an insanitary state as qualified
by the preceding words, that is, an insanitary state resulting from
the ill-construction or dilapidation of the buil<lfng. The word
* defects ' in that section means * sanitary defects* and the repairs
which the notice may require the owner to execute must therefore
be such repairs a<? are necessary to remove the sanitary defects
result mg from the ill-construction or dilapidation of the building.
Held tbereforev that the repairs which the applicant was required
to carry oat were repairs of such a nature as to put the house into
habitable order generally, and not merely repairs to remove sani-
taiy defects of the nature contemplated in s. 83 ; that the Canton-
ment authority was not authorised by the prorfsions of 8. 83 to
issue a notice for general repairs ; that it did not exercise a legal
discretion in directing under that section sach repairs to be carried
out, and that the notice was bad and invalid in law.

G. T. Jackson v. King Emperor ... 51

CANTONMENT CODE, S 83, 83, AND 283 — Naticft for gewral
repain^ Criminal r^iHon—Cbde of Criminal Procedure i, 439—
Penalty for failure to comply with notice for repair*."] Tlie Can-
tonment Magistrate by a notice purporting to have been issued in
accordance with s. 83, Chap. VI, Cantonnient Code, directed the
applicant to carry out certain general repairs in a bouse as recom-
mended by a Committee of Arbitration, The applicant, having
failed to comply with the notice, was convicted under s. 283 of
the Cantonment Code.

Held that the procedure adopted by the Cantonment Magis-
trate was not authorized by s. 83 of the Cantonment Code, and
also that the repairs ordered to be carried out were not the kind
of repairs contemplated by s. 83, and that the notice purporting
to have been issued under that section was bad and invalid in law.

ITdd, further that a penalty for failure to comply with a
notice under s. 83 being expressly provided for in s. 85, the convic-
tion under s. 283 was illegal.

[Q. T, Jackion v. King- Emperor (1,) follotoed.}

Rai Narain Das v. King- Emperor ♦.„ €g

0) 7 0. C, 5i.



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GENERAL INDEX. xiii

Page.

CADSE OF ACTION. jStw Suit for valne of crops «listraine<I for aiTears

of rent due to landlord, by sub-tenant ngainst tenant ... 351

CERTIFIED COPY OF A REGISTERED DEED, ADMISSIBILITY OF,
TO PEOVE EXISTENCE, CONDITION, AND CONTENTS OF THE OEI-

OINAL. S'^A Evidence Act, s. 65, cl. [/?] ... 327

CERTIFIED COPY OF REGISTERED DOCUMENT, ADMISSIBILITY

IN EVIDENCE OP. See Act III of 1877 8. 57 ... 365

CIVIL COURTS ACT [OUDH,] SECTION 18, CLAUSE (3)-JttrMdf?>-
tian of a Subordinate Judge empowered to try appeals^ as regards
appeals preferred to his predecessor ufider Government^ Notification
issusd in his time — Appeal^ disposal of, by Subordinate Judge —
Receipt of money not purporting to extinguish mortgage-debt^ regis-
tration of] A notification dated 30th December 1900 and issued
under section 18 clause (3) of the Oudh Civil Courts Act provide<l
that appeals from decrees and orders of the Munsif of Kberi should
be (1) preferred to, and (2) heard and decided by i?. Subordinate
Judge of Kheri. The same powers were confeiTed on bis successor
J9 by a Notification dated 29th March.1901.

Held per Scotty J. C. that power to hear and decide appeals
conferred on Sunder the Notification of 29th March 1901 included
the power to hear and try and dispose of appeals preferred to his
predecessors.

Held per Chamier^ A. J, C. that when an appeal has been
rightly preferred to the Court of Subordinate Judge, the Subordi-
nate Judge presidirg in that Court is bound to dispose of it whether
it was preferred under a Notification issued in his own time or
under a Notification issued in his own time or under a Notification
issued in the time of any of his predecessors.

The appellant brought a suit to recover a certain sum of
money alleged to be due on a mortgage executed by the respond-
ents to secure the payment of Rs. 300 with interest &c., &c. The
respondents denied that anything was due to the appellant on the
mortgage and produced a receipt for Rs. 300 simply for the purpose
of proving the payment of that sum.

Eeldy per Soot^ J, C, that as the receipt did not purport to
extinguish the mortgage and was not relied on for any other pur-
pose than to prove the payment of a certain sum of money, it did
not require to be registered .

Sohan Lai v. Baldeo Pershad and others ... 321

CIVIL COURT, JURISDICTION OF. See Adverse title, by tenant,

assertion of ... 372

CIVIL PROCEDURE CODE, S. 13. See Possession, suit for ... 122

SS. 13, 43, AND 371. See Arrears Of rent,

suit for ..i 108



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xiv GENERAL INDEX.

Page.

CIVIL PUOCBDURE CODE, S. 25. Sm Act lU of 1901, ss. 191 and 192, 142

â–  â–  â–  SS. 27 AND Z6S^DMth of plaintiff-respaHd'

ent pending appeal — Addition or substitution of name as plaintiff
in a suit brought by one not entitled to bring it— Right of defend'
ant to dismissal of suit brought by unauthorized person — Proce-
dure."] S alleging himself to be the heir of B who died in Decem-
ber 1898 brought a sait for arrearis of rent against ff in respect
of a certain land which formed part of the estate of B, H denied
£^s right to the estate of B and stated that a sait for the whole
estate bad been brought against 8 by the appellant. The Court
of first instance decreed S^% claim in part. At the time when the
decree was passed the appeUant*s suit was pending. H appealed
to the District Judge and 8 filed objections under s. 561, Civil
Procedure Code. At this stage the appellants suit against 8 waa
decreed. The appellant then appelied to have her name entered
on the record of the lower appellate Court in place of that of 8 in
the suit for arrears of rent. The District Judge held that the
appellant was entitled to have her name added to, not substituted
for, that of jS as a respondent.

Heldy that the appellant had no right to thrust herself ai
plaintiff into the suit for arrears of rent which was brought by a
person who had no right to bring it. A defendant has aright
to the dismissal of a suit brought against him by an unauthorized
person and the defect cannot be cured by the addition or substi-
tution of the name of the person who might have brought the suit
nnlesB the case comes within a. 27, Civil Procedure Code.

Rani Raghubans Knar v, Hashmat Ali and others ... 78

■ '— t*. 27. 8ee Plaintiff, addition of after com-



mencement of suit ... 193
SS. 36 39, AND 40. See Pleader, refusal



by, to accept notice of date of hearing of case ... 30S

— :— S. 206. 8ee Pleader's fees, how to be



calculated in a suit for pre-emption ... 43

S. 244. See Foreclosure, suit for ... 137

See Execution of decree ... 213

See Execution of decree against



minor when no guardian ad litem appointed in the suit ... 199

. SS. 253 AND biZ.—SecuHty for du4 per-



formanee of appellate decree^ suit for enforcement of] The appel-
lants having executed a security bond under s. 645 of the Code of
Civil Procedure in favour of the respondent, it was held that the
respondent could enforce the bond by suit and was not bound to
proceed in the execution department.

Shitab Singh and another v, Shiam Blhari and on bit
death his minor son Janki Saran ... 210



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GENERAL INDEX.



XV



Page.
CIVIL PUOCBDURE CODE, S. 266. Ses (North-Westerm Provinces and

Oudh) Court of Wards Act, 1899, S. 22 ... 174

S. 294, Ses Purchase of mortgagor's rights

by mortgagee at sale in execution of decree of thirtl party ... 307

SS. 365 and 666. See Representative of

deceased appellant, jurisiliction of Court to which a case has been
remanded, to bring on record ... 17

S. 625. See Award not filed in Court within



six months, enforcement of

, SECTION 661 AND 58i^ OhjectixmJUed

in second appeal.] In an objection under s. 661 of the Code of
Civil Procedure filed in a case in second appeal the ground taken
was ** that the learned District Judge is wrong in holding that the
muafi Chak Oudar Shah was waqf property and that the plaintiff
was not entitled to her legal share in it."

Held^ that the ground taken in an objection under s. 661,
Civil Procedure Code, when filed in a case in second appeal must
comply with the provisions of 8. 684 of that Code, and that the
ground in question as drafted did not comply with the provisions
of that section as it did not allege that the decision was contrary
to any specified law or usage having the force of law.

Mubarak Ali v. Musammat Buqaya Bibi
â–  S. 586. See Second appeal in a suit for



869



less than Bs. 500



• S. 623. See Beview of judgment
SS. 623 AND 626. iStftf Beview



COLLECTOR, ENTRY TN BECOBD OF THE NAME OF, AFTER
LIMITATION. See Disqualified proprietor, suit against, in his own
name

COMMDTATON OF INSUFFICIENT CASE OF INSANITY INTO A
CASE OF WEAKNESS. See Insanity

COMPENSATION FOR REVENUE PAID BY LAMBARDAR ON
ACCOUNT OP JOINT LAMBAROAB, SUIT FOB — Otldh Rent Act SS, 108
cL 16y 129 and 132—LimUaiian.'} A suit under cl. 16 of s. 108 of
the Oudh Rent Act for compensation for revenue paid by a lambar-
dar on account of a joint lambardar is governed not by section
132 but by 8. 129 of the Act and should be instituted within one
year from the date of the accrual of the cause of action.
Raja Bam v. Musammat Menda

CONTBACT ACT, s. 73. See Interest gn arrears of rent



49

202
299
345

176

287



14

116



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xvi GENERAL INDEX.

Page.
CONTRACT BETWEEN PLAINTIFF AND THIRD PARTY, ON WHAT

GROUNDS DEFENDANT CAS QUESTION VALIDITY OP. ^ Contract

respecting miuor*8 estate made by his uataral guardian not void
but voidable ••• 1^1

CONTRACT RESPECTING MINOR'S ESTATE MADE BY HIS NATU-
BAL OUAEDIAN NOT VOID BUT VOIDABLE— ^'i/n^rflc^ between plain-
tiff and third party^ on what grovtidt defendant can questiim
validity «/.] A sale or mortgage of or other dealing with a minor's
estate by a de facto and natural guardian is not a nullity ; it is
not voi<l but only voidable and only the minor or his representa-
tives can ratify it or avoid it ; and the same is the case with a cer-
tificated guardian who deals with his ward's estate without the
sanction of the Court.

A volunteer cannot as plaintiff avoid a transaction which does
not concern him, and a defendant can always resist a suit upon the
ground that no right or title at all has passed to the plaintiff or
that an assignment to the plaintiff was made to defraud the
defendant or was illegal or void or opposed to public policy ; but
where an assignment is in law sufficient to pass title to the plaintiff
ami is not illegal or void or opposed to public policy or a fmutl
upon the defendant but is only voidable at the instance of a thinl
party on the ground of undue influence, failure of consideration or
the like, then the defendant cannot challenge the validty of the
assignment unless a trial of the question of its validity is necessary
for his protection, in which case the person who has the right to
ratify or avoid the assignment should be made a party to the suit
and the validity of the assignment tried out.

liazari r. Lallu and another ,., igi

CO-SHARERS IN A GROVE, POSITION OF, AFTER PARTITION. See

Pre-emption, suit for ,,, 19

â–  OF MAHAL. See Pre-emption, suit for ... 284

SUB-DIVISION, RIGHT OF PRIORITY AMONG.

See Oudh Laws Act s. 9 els. (I) and (2) ... 921

COURT FEES ACT (VII OF 1870) SECTION 7 CLASE IX AND
SECTION M-^Court-fee in a suit to redeem property subject to
more than one deed of mortgage, how to be comp^ited— Redumption,
suit for.] The respondent sued the appellant for redemption of
certain property in respect of which four documents were allegftl
to have been executed, namely (I) a deed dated December 16th
1892 whereby the property was mortgaged for Rs. 21,000, (2) a
deed dated August 8th 1893 stated therein to be a deed of further
charge for Rs. 642 (the executant promised to pay this sum with
interest along with the sum secured by the first deed and agreed



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GENERAL INDEX.. xvii

Page.

that the property Bhoold not be redeemed exoept upon pay*
ment of the further advance and interest thereon as well as the
•am secured by the first deed and it was stipulated that all the
conditions of the first deed should be deemed to apply to this
deed also, (3) a deed dated August 7th 1894 and (4) a deed
dated October Ist 1894, both bring similar in all respects to the
second deed except that they were not stated to be deeds of further
charge. The respondent paid on his plaint a court-fee which was
computed upon the sum total of the principal amounts of the four
deeds.

Htld^ that the court-fee upon a plaint in a suit for redemp-
tion or for foreclosure should be calculated upon the sum total
of the principal money payable under the deeds by which
those monies are secured, and that therefore the fee paid upon the
plaint in the present case was sufficient under clause ix of section
7 of the Court Fees Act.

Held further, that section 17 of the Court Fees Act applies
only where there are two or more distinct causes of action.

Thakur Jawahir Singh v. Thakur Balwant Singh ... 162

COURT-FEB IN A SUIT TO REDEEM PROPERTY SUBJECT TO

MOKE THAN 0KB DEED OF MOBTGAOB, HOW TO BB OOMPUTBD.

8m Court-fees Act s. 7 (cl.) ix and s. 17 ... ISS"

COURT-FEE, HOW CALCULATED WHEN APPELLANT SEEKS TO
BBOAPB PAYMENT OF A BUM DEOBEBD AGAINST HIM AND TO
RECOYBB A SUM PEOM BESPONDENT. See Review ... 34S

COURT INSPECTOR, SEAT OF, WHEN ^CONDUCTING CASES.—
Pereoru conducting prosecution or defence not to occttpy a seat on
dais of the Court."] No person conducting the prosecution or
defence in a case should, under any circumstances, be allowed to
occupy a seat on the dais of the Court.

Mukta Pershad and others v. King- Emperor .»« 8^

COURT OF WARDS ACT (N.-W.-P. AND OUDH) 1899 s. 2i^Allotoanee
of ward granted by Court of Wards, attachment of in execution of
decree against him — Code of Cicil Procedure, *. 266 J\ A sum
allowed by the Court of Wards under s. 22 of the North-Westem
Provinces and Oudh Court of Wards Act, 1899, in respect of the