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

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

LUNATICS ESTATE ACT (XXXV OF 1858; S,5^Ileport or ceHifietUehy
medical expert as to tlie mental capacity of an alleged lunatic^ adniU-
sibilUy in evidence of, in a contentious proceeding — Indian Eeidence
Acty a:32.'] A report or a certificate by a Civil Surgeon who was not
called as a witness as to the mental capacity of an allegeil lunatic
given in the course of and for the purpose of a case is not admis*
sible in evidence in a contentious proceeding either under s. 32 of
the Indian Evidence Act or under s. 5 of the Lunatics Estates Act
(XXXVof 1858).

Mohammad Yad Ali v. Mnsammat Amirunoisa and Dildar
AU ... S54

M

MAHOMEDAN LAW. See Oudh Estates Act (1 of 1869) ss. 8 and 10 ... 254
, . . See Disqualified proprietor, suit against, in his

own name ... 176

MARGINAL NOTES AND SECTIONS OF ACTS. See Oudh Estates

Act, (I of 1869) ss. 8, 13, 14, 15, and 22 cl. (6) construction ... 248
MEMBER OF VILLAGE COMMUNITY. Sm Pre-emption suit for ... 27
NOT RESIDING IN THE

VILLAGE IN WHICH HE HAS BIGHTS IN LAND, See Pre-emption

suit for ... 19

JdlSL RAWAJ'I'AM kS EVIDENCE OF CUSTOM, ADMISSIBILITY

OF.] A misl rawaj'i-am duly prepared and attested is admissible iQ

evidence as an official record of a custom.

Bajrang Singh v. Daulat Singh ... 134



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GENERAL INDEX. xxix

Page.
MINORITY DISPROVBD. See Suit in the name of an alleged minor by

next friend ... 234

MINOR, PROMISE TO PAY MONEY MADE BY GUARDIAN ON BE-
HALF OP — Personal liability of minor for money borrowed for hit
use by guardian — Limitation,} It is settled law that although a
guardian may under certain circumstances sell or charge his ward's
property he cannot bind his ward personally by a covenant or by
a promise to pay money or damages.

The respondent brought a suit against the appellant and his
mother upon a simple bond executed and registered on the 3rd
February 1896 whereby the mother both for herself and as guard-
ian of the appellant who was then a minor promised to pay a
certain sum of money with interest at I per cent, per mensem
within one year. The suit was instituted on April 24th 1902, i. e.,
more than six years after the date of the loan although less than
6 years from the date on which a cause of action aoerued upon the
bond. The Courts found that there was urgent necessity for the
loan and that the money was applied solely for the relief of the
appellant.

Held^ that the bond was not binding upon the appellant and
that therefore the suit was barred by limitation.

Gaya Prasad v, Mnsammat Maharaj Euar ... 46

MONEY CHARGED UPON IMMOVABLE PROPERTY. See Arrears of

rent, suit for ... 108

MORTGAGE. iStftf Foreclosure, suit for ... 137

HOfiTQAQE^Esdenption of first mortgage token first mortgagee has
purchased equity of redemption — Second mortgagee bringing pro-
perty to sale toithout oj^ering to redeem first Tnortgage.} The first
mortgagee bought the equity of redemption of the property mort-
gaged to him. Subsequently when the plaintiff, a transferee of
the second mortgagee, applied for mutation of names in his favour
the first mortgagee objected that his mortgage should be redeemed
first.

Heldf that the rights of the first mortgagee did not merge
into those of the mortgagor by purchase of the equity of redemption
and that he was entitled to have his mortgage redeemed.

Heldy that the second mortgagee is not bound to offer to
redeem the first mortgage before bringing the property to sale.

[Mata Din Kasodhan â–¼. Kdzim Husain (I. L., R., 13 All., 432)
dissented from and Raja Azim AH Khan v. Mir Mohamed Husain
(I. O. C. 105) referred to.]

Nigju Khan and another t'. Bam Bali and others „• 330



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xzx



GENERAL INDEX.



Page.
MORTGAGE, SUIT FORRECOVEEY OF MONEY DUE O'S^Anomalout
mortgage — IrUerest^ claim for recovery of by sale of mortgaged
property — Damage* — Indian Limitation Act^ sch, ti, art. IISJ]
The plain tifE sued the defendant for the recovery of certain enms
of money as principal and interest alleged to be dae upon a mort-
gage executed by the latter in favour of the former on December
11th 1888. He claimed to be entitled to recorer these sums by
sale of the mortgaged property.

Held^ that having regard to the terms of the deed tne mort-
gage was an anomalous mortgage, that the parties did not intend
that the mortgagee should in any event be entitled to a decree for
sale in respect of the interest, that he was entitled by way of
damages to interest for six years prevlons to the suit under article
116, sch. ii of the Indian Limitation Act, and that under the
circumstances the interest awarded as damages could xy>t be held
to be a charge on the land.

Ram Parshad t. Umrao ... 11

MORTGAGEE OF TENANTS' HOLDING UNDER DECREE OF COURT,

SUIT BY LAND-LOSD FOB POSSESSION KQAlV%T—Utufruotuary

mortgage by tenant having non-transferable right in land^ effect of a$
against landlord — Relinquishment of holding by tenant after tram*
fer of it to a third party ^ landlord's right as against transferee in
case of ^Occupancy rights— Tenant holding for a term under a
dsedr-Belinguishment of holding, rights of tenant holding /or a
term under a deed, a tenant holding under decree of Court, an occu-
pancy tenant, or a statutory tenant as regards — Oudh Rent Act, $s,
6, 20, and 36— Transfer of Property Act, «. 6 clause (i).] At the
settlement in 1867 D sued for under- proprietary rights on the
strength of being an old cemindar. He failed to establish his
claim, but the taluqdar allowed to have a decree for kabzadari
and retain the land at a certain fixed rent. ITq successors mort-
gaged some of this land to the defendant and subsequently relin-
quished their holding to the plaintiff who was the owner of the
village. The plaintifE brought a suit to eject the defendants.

Held, by Wells, O. J. C. that the defendant's mortgagors, not
being under-proprietors, were tenants under the Oudh Rent Act ;
that as such, they were entitled under s. 20 of the Act to relinquish
their holdings at the end of any agricultural year ; that the relin-
quishment by them put an end to the tenancy; and that the plaint-
ifTs claim should be decreed.

That the decree of the Settlement Court gave the mortgagors
an occupancy right, not a right of the nature described in s. 5 of
the Ondh Bent Act, which arioes in a particular way, bat a right t ®



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GENERAL INDEX. xxxi

Page,
occnpancy in the ordinary meaning of tke word, and a transfer of
such a right is of no effect with reference to a. 6 (i) of the Transfer
of Property Act.

Held^ by Chamier, â–². J. C. that nnder the decree of the
Settlement Ck)urt D obtained a non-transferable right to hold the
land at a fixed rent and that the nsofractuary mortgage of the
land made by his saccessors in favour of the defendant was a trans-
fer which as against the landlord was invalid and inoperative. A
tenant with a right of occupancy or a tenant holding tinder a
decree of Court in Oudh is in a different position from that held
by a tenant for a term under a deed. The latter connot relinciuish
his tenancy except in accordance with his lease whereas a tenant
with a right of occnpancy under s. 5 of the Oudh Rent Act or a
tenant '^holding under a decree of Court, or Statutory' tenant
under s. 36 may under s. 20 of the Act relinquish his tenancy at
the end of any year by giving his landlord nDtice on or before
March 15th.

Jang Bahadur v, Rae Baja minor under the guardianship of
Jugraj Euer and another ... 265

MORTGAGED PROPERTY SOLD TWICE IN EXECUTION OF
DECREES OK PRIOR AifD SUBSEQUENT MORTGAaES. 8es Purchas-
er in executien of decree on prior mortgage when sale takes place
after sale on subsequent mortgages ... 243

MORTGAGOR'S RIGHTS, PURCHASE BY MORTGAGEE OF, FOR
FAIR PRICE. See Purchase of mortgagor's rights by mortgagee
at sale in execution of decree of third party ... 307

MORTGAGE BY CONDITIONAL SALE. See Redemption, suit for ... 259

N

NAZULLANDIN OUDH, SUIT FOR POSSESSION OF—JBurden of
proof— Lord Canfdng*i proclamation of 15th Maroh^ 1858^ effect
of—Power-of-attomey signed by Deputy Collector for Deputy Com-
iniiAoner^ presumption as to.] In a suit for possession of a plot of
land in Fyzabad brought by the appellants against the respondents
the power of attorney filed bjr the Government pleader on behelf
of the respondent No. 1 purported to have been signed by the
Deputy CoUector *»for the Deputy Commissioner." The Settlement
paper showed that the land was Nazul.

Meld^ that in view of the general practice that in the
absence of a Deputy Commissioner or a Collector from the head-
quarters of his district one of his subordinates does sign and has
authority to sign papers and documents on his behalf, it must be
presumed that the Deputy Collector bad authority to sign for
the Deputy Commissioner.



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xxxii GENERAL INDEX.



Held further, that having regard to Lord CanniDg's proola-

mation of 15th March, 1858, which divested the proprietors of all

t he landed property in Oudh and traneferred it and vested it in

the British Government, it was for the appellants to prove that

they claimed title to the land in soit through the Government.

Saiyad Mohammed Haidar and another r. The Secretary of

State for India in Council and another ... 65

NON-APPEALABLE SENTENCE. See Security to keep the peace after

conviction on a summary trial ... 338

NON.RE SIDENT CO-SHARES. Se^ pre-empHon, suit for ... 284

NOTICE FOB GENERAL REPAIRS. iS«e Contonment Code, as. 83,85

and 283 ... 68



OBJECTION FILED IN SECOND APPEAL. See CivU Procedure Code,

SB. 561 and 684 ,» 49

BY MINOR TO VALIDITY OF DECREE IN EXECUTION

PBOOEEDI17G3. See Execution of decree against minor when no
guardian ad litem appointed in suit ... 199

OCCUPANCY RIGHTS. See Mortgagee of tenants holding under decree

of Court, suit by landlord for possession against ... 265

OUDH CIVIL DIGEST, PARAGRAPH 288 RULE 4. See Pleaders' fees

how to be calculated in a suit for pre-emption ... 4$

ESTATES ACT (OF 1869). See Act I of 1877 s. 42 ... 239

, 1860. SS. 3 AND 10— Succession to taluqdar's e^ate

not held under sanad by Government — JSntry of taluqdar*$ name in
lists prepared under Oudh Estate Act after his death — Mohamedan
Law — Interpretation of Statute.'] M in his lifetime was a taluqdar,
and in May 1858 a summary settlement of his estate was made with
him. He never obtained any sanad in his lifetime, and his name was
never in his lifetime entered in any list of oflScially recognised
taluqdars. When he died he left his mother and some cousins and
two widows ; and in March 1865 his mother, was recorded as sole
owner with the consent of his two widows and cousins, under
whom the respondents claimed. The Oudh Estates Act of 1869
came into operation in January of that year, and in July 1869 the
name of M came somehow to be entered in two of the lists directed
to be made by the Act. In 1870 the mother died. She appointed
the two widows her successors. On their death the respondent's
brother and sister of the last surviving widow claimed one-half of
iTs estate under the Mohamedan Law against the appellants who
claimed the whole estate under M% first wife and under the Oudh
Estates Act, 1869. It was conceded that the respondents were
entitled to a decree unless the succession was altered by the Act of
1 869 and what was done after JITs death.



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' GENERAL IKDEX. xxxHi

Pftge.
Held, that the Court could not construe eections 8 and 10 of
the Oudh Estates Act, 1869, so as to deprive the successors of the
eatate of a person who had died before those sections came into
operation of rights which they acquired on his death. IJeld there-
fore, that when M died he had acquired a permanent hereditary
and proprietary right recoguised by the Indian Government in the
estate in question ; but that the succession to them not having
be<;n alteietl by any xanad was governed by the ordinary Mohame-
' dan Law which was the law applicable to the case.

Mohammad Abdus-samad and other v. Kuiban Husain

and others ... 25 4

OCDH ESTATES ACT, (I OF 1869) SS, 8, 13, 14, 15, AND 22 CL. r6)
CONSTRUCTION—" Would have ivcceeded" in ss, 13, 14 and 15,
meaning of— Sons of talnqdar by diffei'ent mothers — " Brothers,'*
meaning of— Marginal notes and sections of Acts.] P a taluqdar,
who died in 1866, and whose name was entered after his death iu
ListB I and 11 mentioned in section 8 of the Ondh Estates Act (I of
1869), made over his estate by will to his younger son B, who died
in 1890 intestate, leaving two widows, tiie appellants, but no male
issue. The respouilent, the son of ^'s elder brother, the eldest
male lineal descendant of P, sued the appellants for proprietary
possession of the estate on the allegation that on J?'8 death, intes-
tate, he came in to the property under clause (6) of section 22
of the Act.

Held, that section 14 did not apply and therefore the respond-
ent was not entitled to succeed to the estate under clause (6) sec-
tion 22 of the Oudh Estates Act. The expression • would have
aucceeded' in sections 1^ and 14 must be confined to persons in the
special line of succession that would have been applicable to the
particular case if the transferor or tet^tator had died intestate and
the death had occurred at the date of the transfer or, in the case
of a gift by will, at the time. when the succes^on opened.

Held further, that 2i was not a " legatee" within the definition
of that teTm in the Act of 1869, as the bequest in bis favour, if it
took effect, came into operation before that Act veas passed.

Held also, that P's eldest son, though born of different mother,
was a biother of B within the meaning of the word "brother" in
clause (6) of section 22.

Marginal notes to the sections of an Act cannot be referred to
for the purposes of construing the Act,

Thakurain Balraj Kunwar and another r. Rae Jagatpal Singh 248
OUDH ESTATES ACT, 1869, S. 33. See Gnzara land, suit for possessionof 90



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xxxiv GENERAL INDEX.

OU DH LAWS ACT, 1876, CHAPTER 11. See Pre-emption suit for ... 31

, S. 5. See Disqualified proprietor, suit against,

in his own name ... 176

, 1876, S. 8. See Pre-emption suit ... 74

, 1876, S. 9. See Pre-emption, suit for ... 284

, See Pre-emption, suit for ... 6

, cl. (3). See Pre-emption, suit for ... I

, cl. (5). See Pre-emption, suit for ... 19

^ CLAUSES il) A'^D {2)— Pre-emption, JtuU/or-^

Co'Sharerg of mh-divhUm, right of priority among — BelatiotVfhip
with vendor J] The plaiutiflfs and one B brougiit separate suits
for pre emption in respect of a cartain village whicli was divided
into two mahals, viz., mahal mustaqil which was an impel feet
pattidari and mahal (MinuLli which was a pure zemindari mahal.
In the mahal mustaqil there were two pattis, the plaintiffs having
a share in the one and B in the other. B was related to the
vendors, but there was no proof that the plaintiffs were in any
way relatetl to them.

Held, that the patti in which the plaintiffs had a share was
a subdivision of the mahal withii» the meaning of clause (1) s. 9 of
tlie Oudh Laws Act, that the plaintiff, had a right of pre-emption
superior to that of i? in respect of tliat mahal and tliat under
clause (2) of the section B hail a better right than they in recpeot
of the ihtimali mahal.

Clause (1)8. 9 of the Oudh Laws Act means that amongst
co-sharers in the subdivision who are related to the vendor or mort-
gagor priority is to be determined by nearness of relationship and
that co-sharers in the sub-division who are not so related can
claim under this clause but aftef those who are related, thus,—
nearly related— less nearly related— not related.

Thakur Sheo Naraia Singh v. Thakur Sheodat Singh
and others

OUDH LAWS ACT, S. 2h .^Righi of occHpancy in land sold in e;cecution,
of decree, mortgage of] The plaintiff sued for cancelment of a
mortgage in favour of the defendant by T. T held certain pro-
prietary rights which w«re sold in execution of a decree, and the
land in question was reserved to him under s. 25 of the Oudh
Laws Act, the plaintiff being the proprietor. Held, that a person
to whom a holding has been reserved under s. 25 of the Oudh
Laws Act, has nothing but a right to cultivate and occupy, and
thftt though his rights are not governed by s, 5 of the Oudh Beat



129



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GENERAL INDEX. xxxv

Page,
Act he is ia no better position than an occupancy tenant to whom
tuat tieoiiou applies. MeLd tlierefure, that the mortgage in favour
ui iiie appeiiaui was invalid.

Bodba biugh v. Kam Sumran ... 321

OUDH llENT ACT, SS, 6, 20, AND 36. See Mortgagee of tenants holding

under decree ot (Juurt, suit by landlord for possession against ... 265

OUDHllEVi£XUKAOrC2i:V110F1876; SS. 108 AND 112 AND 121.

;S^tf Fre-emptiou, suit for ... .284.

UWNEU OF SKt'AUArifi CHAGK IN MAHAL, BIQHT OF, TO PBE-

i£Mi*T. Hee fre-emption suit fur »•» 284



PaRDANASHIN WOMEN, denial OF EXECCTION OF DEED BY
— Burden of proof upon plaintiff when pardanashin woman
tteni/is sxeeution of deed — Rule regarding cafe ta which pa rianathin,
won^en are sued upon deeds alleged to be executed hy tliem,']
In a suit on a mortgage-bond dated December 20th 18i)7 alleged
to have been executed in favour of the plaintifiEs by the defend-
ant, a pardanshin woman and her husband it was contended by
the defendant that she and her part of the mortgaged property
were not bound by the deed. Her defence in her written state-
ment was that she had had no occasion to borrow money of the
plaintiffs, that she had borrowed none, and that she did not
execute the deei and knt^w nothing abjut it. The question was
whether a mere denial of "execution" by a /?ar<irf/kMAi» woman
against whom a deed is sought to be enforced is sufficient to cast
upon the plaintiff the duty of proving that the woman not only set
her hand to the dee I but understood what she was doing. Held^
that in such cases it is incumbent upon the plaintiff to prove that
the woman received the consideration stated in the deed and
^ecuted the deed with knowledge of its effect upon her interests.

The rule as to pleading in cases in which a pardanashin
%7oman is sued upon is this:— If she admits having executed the
deed she must plead definitely that it is not binding upon her so as
to give tne plaintiff notice of the position which she intends to
take. If she denies having executed the deed the plaintiff must
prove not only the factum of mechanical execution by her but also
that she signed it with knowledge of its bearing upon her interests.

Upon the evidence in the case the Court held that it was not
proved that tlje defencjant received ony part of the consideratioii



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xxxvi GENERAL INDEX.

for the mortgage-deed in snit or that she caused her seal to be
affixed to the deed or that she understood the transaction or had
any means of doing so.

Musammat Sakina Begam and olliers r. Lala Inder Persbad
and others ... 29:^

PAETITION CASE, TRANSFER OF. See Act III of 1901,88. 191 and

192 ... 142

, PART OF LAND BBMAINING JOINT AFTER, EFFECT

OF, AS TO BIQHT OF PRfi-ElfPTiON. See Pre-emption, suit for ... I

, SUIT FOR— Quegtion, of title— Dismissal of objection in-



volving question of title — Appeal— Jurisdiction of Ciril Court —
Land Revenue Act of 1901^ sections 111 and 112 — Decree."] In a
partition case the appellant presented a petition in which, he sei
forth certain objections to the proposed partition, one being that
the property was not partible. The Court of firet instance held
that the question of title raised by the appellant had already been
determined by a Court of competent jurisdiction and dismissed the
petition. Heldy that the order of the Court dtsmiseing the petitioo
was not a decree within the meaning of section 112 of the Land
Revenue Act, 1901, and that no appeal lay to the Court of the
Judicial Commissioner. It is only when the ReveBue Court goes
into the merits of the objection that its or<ler dealing with the
objection is appealable as a decree.

Shabamat Khan and another r. Masanunat Azizunnissa

and anothet ... 161

PATENT, INFRINGEMENT OT— Injunction, to restrain infringem^tnt of
patent.] The plaintiff, a patentee of a oane-crushing mill, brought
a suit for an injunetio» to restrain infringement of his patent by
the defendant. The defendant eoatested the suit but the District
Judge granted the 'injunction. Before the appellate Court the
defendant admitted the validity of the patent and that he had
infringed it and undertook not to infringe it again^ Held^ that as
there was danger of future infringement an undertaking waa not
sufficient and the plaintiff was entitled to the injunction granted
by the Courts

Bishun Datt r. G. L. Perfect .^ loa

JPENAL CODE (IN DIAN;, S. 323. See Security to keep the peace after

couTiction on a summary trial ,^ 33^

- ' S. 401 — Oang associated for the purpose of

habitually committing theft belonging to, evidence necessary to prove
offence of.] The accused who were convicted under s. 401 of the
Indian Penal Code were all members of one feimily. The only-



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GENERAL INDEX. xxxvii

Page*
evidence against them was that two of them bad been prcTiously
convicted under s. 454, Indian Penal Co<ie, that they hati no osten-
sible means of livelihood, and that during their prv^gress through
a certain district a number of petty thefts were committed within
various distances upto ten miles from their encampments. No
stolen property was traced to their possession and it was not shown
that the country through which the gang passed was free from
petty crime when the gang was not abont.

Held^ that the evidence did not establish a charge under
8. 401 of the Indian Penal Code.

Dukharan r. King-Emperor ... 163

PENAL CODE, 8. 447. See Appellate Court, power of, to set aside
order of lower Court putting complainant in possession of
land ... 208

PENALTY FOR FAILURE TO COMPLY WITH NOTICE FOR RE-
PAIRS. See Cantonment Code, sections 83, 85 and 283 ... 68

PERFECT PARTITION. See Pre-emption, suit for ... 276

PERSONS CONDUCTING -PROSECUTION OR DEFENCE NOT TO
OCCUPY A SEAT ON DAIS OP THE COURT. See Court Inspector, seat
of, when conducting cases ... 82

PERSONS HAVING POSSIBILITY OF SUCCESSION iTDT CO-
BHARERS WITH THOSE HAVING SIMILAR POSSIBILITY. See Pre-
emption suit for ... 98

PERSONAL LIABILITY OF MINOR FOR MONEY BORROWED FOR
HIS USE BY GUARDIAN. See Minor, promise to pay money made
by guardian on behalf of ... 46

PHYSICAL POSSESSION. See Pre-emption, suit for ... 8

PLAINTIFF, ADDITION OF, AFTER COMMENCEMENT OF SUIT—
Bonti fide migtahe^ institution of suit through — Code of Civil
Procedure^ section 27.] The original plaiutifEs claimed title to the
property in suit under a tamliknama executed in their favour
by their father, B, The defendant denied that the plaintiffs
had any title to the property in suit ; he did not plead that
the tamliknania did not cover the property in suit and did
not at any time ask for an issue as to the effect of the tamlik-
nama. In the course of the arguments the defendant con-
tended that the plaintiffs had acquired no title to the property
in suit from their father, firstly, because the property in suit was
not included in the tamliknama, and secondly, because pos-
session had not passed upon the execution of that document. B
then presented a petition that he might be added as a plaintiff,
and his sons made the same request. Upon the facts of the case
the Court held that the suit was commenced as it was through a



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xxxviii GENERAL INDEX.

Page
honttfide mistake on the part of the plaintiffs within the meaning
of 8. 27 of the Code of Civil Procedure. Beld further, that the
case came within s. 27 which allows an addition or substitution of
a plaintiff " at any stage of the case," and that B was rightly
added as a plaintiff.

Abdul Wahid Khan v. Sadiq Ali Khan and others ... ISW

PLEADER^S FEES, HOW TO BE CALCULATED IN A SUIT FOB
If^K-KMVTlOV—Oudh Civil Digest, paragraph 2S8, RuU4-'Decrte^
atMmdmma of-^Ciril Procedure Code, s. 206.1 In a suit for pre-
emption a decree in favour of the plaintiff wag prepmd tmd
signed which included a certain sum on account of pleader's fees
calculated on the market yalue of the property. The defendant
subsequently applied under section 206, Civil Procedure Code, for