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

This was a case of a sale to co-sharers and a stranger with a
specification of their shares. It was held that the plaintiff in
. that suit was not entitled to preemption with respect to die
portion of the property which had been purchased by the
co-sharer. Mahmud, J. explained that what he said in the case of
Bhatoani Prasad v. Damru was only meant to apply to a joint
purchase of such a nature as to make it impossible to ascertain
the interests acquired by each of the joint purchasers. He
dissented from the ruling in Gtmeshee Lai v. ZaraxU AH and
Munna Singh v. Ramadhin Singh and he goes on to say,
*^ In the two last-mentioned cases, the shares are separately
" specified and where such shares are separately specified and
*' the sale to the stranger is distinct and divisible,
^^ although contained in one deed, the reason of the rule does
" not exist. The rule applies only to those transactions which while
** contained in one deed, cannot be broken or separated ; and the
** rule should be limited, for it would be a very great hardship
** if the vendee, by the association of a stranger in respect of a
" small but specified portion of the property purchased, should
" have to forfeit his entire right of purchase in favour of a
*' sharer having equal but not preferential rights. Indeed,
*' where the share of each purchaser and the price which be had
^' paid for it are distinctly specified in the sale-deed, there is
^^ really no breaking up of the bargain, as understood in the
" law of pre-emption, if the purchaser («tc ? istranger) is ousted
'^ from the specific share which he has individually purchased
^^ along with others under the same deed of sale. Moreover,
^'even undet the strict rule of the Muhammadan law of

(1) 1. L. R. 8 AU., 462.



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Vol. VII.] THE OUDH CASES. 27

•' pre-emption, the pre-eihptor, in dealingiwitli a sale under which Wajid Khaa
" more persons than one have purchased, is entitled to^say that Ratan.
** he objects to the [intrusioajiof-^only [one'o£;the] purchasers,
" and wishes to exclude"* him by pre-empting' the^specific share
"which such purchaser hasiandividually acquired. And the
" principle in its application^toithei present case shows that the
** exclusion of the purchaser Bali is all that the pre-emptive
" terms of the wajihularz necessitate.**

The next case is one of the Calcutta High Court, the only one
of that Court to which we have been referred, Saligram Singh
V. Raghubar Dayal (1887) (1). It was there held that when a
co-sharer associates a stranger with himself in a purchase he f or^
feits his right as a co-sharer and that the fact of a specification
of their respective shares in the deed of sale would not afiEect the
rule. Several cases were referred to in the judgment include*
ing the earlier rulings of^the Allahabad High Court but the
case of Sheobharos Rat v. Jiach Rai (2), is not mentioned and
does not appear to have been brought to the notice of the Court.

Thenextcase is a Punjab one, Muradv. Mine Khan (1895) (3)
In that case, which has been referred to above, the Court held,
rightly or wrongly, that there had been a joint sale without any
specification of shares. It has therefore no bearing on the pre-
sent question.

The next case is Ram Nath\v. Badri Narain (1896) (4), in
which all the previous rulings in the North Western Provinces
were carefully considered. This was a case of co-sharers joining
strangers with themselves in a purchase, the shares being
specified. Edge, C. J., Blair and Banerji, J J. dissented
from the rulings in Guneshee Lai v. Zaraut Ali and Munnu
Singh v. Ramadhin Singh (5). Commenting on the latter case
the learned Judges say in their judgment, '*It appears to us
" that the learned Judges in that case decided it on the principle

(I) I. L. R., 15 Calc, 224. (2) I. L. R., 8 AU., 462.

(3) No. 94, P. R., 1895, p. 449.
(4) T. L. R., 19 All., 148. (5) I, L. R., 4 All., 252.



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28 THE OUDH CASES. [ Vol. VIT/

Wajid Khan w ^f ^^^ which applies when a co-sharer seeking pre-emption
Baton. '^ associates with ihimself in the suit as a plaintiff a stranger to
" the village. Itjappears to us that that principle does not ap-
^^ ply to a suit against a co-sharer who has associated strangers
^' with himsdlf in his purchase " and they go on to say ^^ In the
"case of a defendant co-sharer in a suit for pre-emption
'^ who has associated with himself in his purchase a stranger
" to the village he stands upon his right as a co-sharer;
*' he seeks the^ assistance of the Court to enforce nothing."
They then deal with the case of Sheobharos Rat v. Jiach Rat
(1) and say they consider that it was rightly decided and that
Mahmud J. had correctly expounded the law in the passage
quoted above from his judgment in that case. They proceed to
say that in their, opinion where the sale-deed specifies the
interest or the share purchased, the yendee co-sharer who is
a co-sharer of equal rights of pre-emption with the plaintiff
co-sharer cannot be disturbed in the rights acquired by him
under the sale- deed. The principle on which the case of
Ram Nath v. Badri Narain was decided is clearly laid down in
the following passage :— r" Where the share of each vendee in
" the property sold is specified in the sale-deed the actual
" property to which the right of pre-emption is attached is ear-
" marked and specified in the sale-deed. The object of pre-
'• emption is to exclude strangers T from the village and not
" co-sharers of equal rights. Where from the sale-deed it can
*' be ascertained what is the share, area of property or interest
" in the village which the stranger has purchased, that share,
" area or interest alone can be the object of pre-emption in
" the suit. Where the share purchased and the proportionate
** price to be paid by each vendee are specified in the sale-deed
" it would not be necessary to make the co-sharer vendee a
** defendant in the suit : but where there is no such separate
*^ specification of the proportionate part of the purchase money
" to be paid by each vendee, the co-sharer vendee would be a
** necessary party to the suit for pre-emption, as the proportionate

(1) I. L. H., 8 AU., 462.



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Vol. VII.] THE OUDH CASES. 29

" part of the purchase money of each vendee would have to Wajid Khan

^* be ascertained. Where a co-sharer chooses to associate with Ratan.

^^ himself in the purchase a stranger to the village, and the

^^ sale-deed does not on the face of it disclose the particular

^^ share or interest purchased by the co-sharer vendee on his

^^ own behalf, as distinct from the share or interest purchased

" by the stranger, then the rule of pre-emption can only be

^^ enforced by treating the co-sharer vendee as if he were in the

" same position as the stranger in' decreeing pre-emption

" against him. In such a case the bargain made between the

^^ vendees and the vendor is one joint in all its incidents."

The next and last case referred to is Nabi Bakhsh v. Fakir
Muhammad (1903) (1^. In this case the sale was entirely to a
stranger but a co-sharer attested the deed and also took an active
part in its registration. The stranger then sold the property to this
co-sharer. It was held that the co-sharer having once waived
his right with respect to the bargain was estopped from assert-
ing it against the pre-emptor. As to the subsequent sale by the
stranger to the co-sharer the Court pointed out that the latter
was not a co-vendee and that he derived his right to the
property from the stranger, the original purchaser. That
ruling does not appear to have any bearing on the question
now under discussion.

The right of pre-emption is a right in derogation of the
ordinary rights of contract and property. It allows one
person to take possession of another person's property by a
compulsory sale whether the latter person is willing to give it
up or not. Tlie object of conferring this right on the co-sharers
in a village is to prevent the intrusion of strangers into the
community and to prevent the disagreeable consequences which
might result from such intrusion. It is no part of the object of
the right of pre-emption to exclude persons who are already
co-sharers ; still less to provide a means of punishing co-sharers.
Where the object of the right of pre-emption can be attained by

(\), No. 25, P. R., 1903, p. 77.



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30 THE OUDH CASES. Vol. VIJ.]

Wajitl Khan excluding the stranger it appears to me that to go farther and
Batan. to say that a co-sharer who had purchased at the same time
with the stranger shoald also forfeit his rights as a co-sharer
with respect to the share bought by himself, is to extend the
rule beyond the point justified by the underlying principle on
which the right of pre-emption is based. In my opinion the
cases of Sheobharos Rai v. Jiach Rat (1) and Rarmuxth v. Badri
Narcdn (2) were correctly decided, so far as the point under
discussion is concerned, and I think we ought to follow those
rulings in this Court. I would hold that the shares having been
specified the appellant is not entitled to a decree for pre-emption
against the respondent, who is a co-sharer, and would dismiss
this appeal with costs.

Chamibr, a. J. C. — I agree. The deed of sale in favour
of Ratan the co-sharer and Sarju the stranger shows that each
purchased one half of the property sold. In some cases it
may not be easy to say whether there is a sufficient specifica-
tion of the interest of each purchaser but in the present case the
deed is quite clear. There was in my opinion no more a joint
purchase by the co-sharer and the stranger than there would
• have been if a separate deed had been executed in favour of
each of them. I agree that a man who violates the pre-emption
right should not at the same time be allowed to claim it but I
am unable to accepf the appellant's contention that Ratan has
violated the pre-emption right by taking part in*the transaction
in question. The appeal must be dismissed with costs.

(1) I. L. R., 8 AU., 462. (2) I. L. R., 19 All., 148.



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Vol. ni.] THE OUDH CASES. 31

FIRIST CIVIL APPEAL, No. 6 OP 1908.*



Before Mr. Maeleod and Mr. Chamier.



Kalea Singh and another (Plaintiffe) v. Kunwar Gajraj 1904.
Singh and another (Respondents). ^^^' ^^'



Preremption^ Suit foT'^Sale^ed relinquishing claim to
property in return for benefits previously received from transferee
—Oudh Laws Act^ 1876^ Chapter 11.



S mortgaged certain lands with poflseesion to K father of the defendant
No. I in 1856 for a certain som of money and after JIT'S death H his widow sold
it to iV in April 1864 for Bs. l,t»74-7-9 receiyingBs. 1,186-8-9 in cash, the balance
being deducted on acoonnt of the mortgage* money. JET died in April 1900 and
in January 1901 the second defendant who was JB*% cousin and the next
reversioner, executed a deed in Cayoor of the first defendant, relinquishing all
claims to the property in retom for some benefits which E and himself had
receiyed from N and the first defendant. The plaintiffs sued the defendants
for pre-emption on the allegation that the deed of 1901 amounted to a sale of
the property within the meaning of Chapter II of the Oudh Laws Act, 1876.

Beldy that the deed of January 1901 did not amount to a deed of sale within
the meaning of Chapter II of the Oudh Laws Act, 1876.



Fob AppbUiANTS.— B. Basdeo Lai.
Fob Rbspondknts.— Mb. J. N. Pogose.

Maolbod, a. J. C. — ^This was a suit for pre-emption under
the following circumstances. The property in dispute originally
belonged to Bhawani Singh. He mortgaged it with possession
to Newaz Singh father of the defendant No. 1 in 1856 for
Us. 439-4-0> After Bhawani Sing h's death Mnsammat Hansi,

^Against the decree of. Babu.Qiish Chandar Hose, Bnbordinate Judge, Bitapnr,
dated 8rd November 1902.



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Ealka Singh
and another

^unwar
Gajraj Singh
and another.



32 THE OUDfl CASES. [Vol. Vlt.

his widow, soM ittoNewaz Singh oh the 6th April 1864 for Rs.
1,574-7-9 receiving Ra. 1,135-3-9 in cash, the balance being
deducted on account of the mortgage-money. Musammat Hansi
died in April 1900 and on the 8th January 1901, Madari Singh,
the second defendant, who is Bhawani Singh's cousin and the
next reversioner, executed a deed in favour of the first defend-
ant, the son of Newa« Singh, relinquishing all claims to the
property in return for some benefits which Musammat Hansi and
himself had received from Newaz Singh and the first defendant.
It was alleged on behalf of the plaintiffs (the present appellants)
that this deed of 1901 amounted to a sale of the property witiiin
the meaning of Chapter II of the Oudh Laws Act 1876, and the
claim for pre-emption was based on this alleged sate.

The Lower Court has found that the instrum^t of 1901
was not a deed of sale and it was merely a release on which no
claim for pre^mptioq could be based and it dismissed the
suit«

It is urged in appeal thai the defendants have not proved
that the deed of sale executed 'by Musammat Hansi was for
legal necessity ; that that being so the sale by Musammat Hansi
was void ; that until Madari Singh executed the deed of January
1901 the first defendant had no legal rights whatever ; and that
as this latter deed completed the sale it must be treated aa the
sale itself. It may be noted that the price which the appellants ^
allege was paid was Us. 1,574-7-9, the price mentioned in the deed
of April 1864. It is not clear how, if that amount was the fair
price of an estate dependent on the life of Musammat Hansi as
the appellants allege it was, it can be treated as the fair price
of an absolute estate in the property. It is, however, unnecessary,
in the view I take of the case, to go further into this point.

It is necessary to examine the terms of the deed of the 8th
January 1901. In that document Madari Singh as next rever-
sioner recites that the first defendant had given him 50 bighas .
sir free of rent 30 years ago, that Newas Singh and the first
defendant had given him every kind of assistance, that they



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Vol. Vn ] THE OUDH CASES. 33

had provided Musaminat Hansi with the means of subsistence ^^^ Single

and another
and given her a grove and a house for her life and that he «.

(Madari Singh) had at the time of the settlement assented to the oajraj Singh

sale executed by Mussammat Hansi, in consideration of vrhioh another.

circumstances he relinquished all claims that he might have as

reversioner in respect of the property transferred by Musam-

mat Hansi to Madari Singh. As a further consideration

Madari Singh was to get two groves and the house occupied

by Musammat Hansi for his lifiB. In my opinion this transaction^

did not amount to a sale within the meaning of Chapter II of

the Oudh Laws Act, 1876. It was held in Mir Abid AU v.

Mussammat Arabunnissa (1) that the price for a sftle within

the meaning of that Chapter means a money price. AssQtning

that the document of the 8th January 1901 was the instrument

that really transferred the property to the first defendant it

seems to me that the consideration for the transaction must be

sought for in that document itself and not in the deed of April

1864, alleged by the appellants themselves to be invalid.

The consideration set out in the deed of the 8th January 1901

can by no possibility be treated as a money price. I think the

lower Court was right in holding that that instrument did not

amount to a deed of sale within the meaning of Chapter 11 of

the Oudh Laws Act, 1876.

Other questions were raised as to whether any legal neces-
sity had been established for the sale by Mussammat Hansi in
1864, and as to whether the burden of proof on this point lay on
the appellants or the respondents. If the transaction had been
attacked by the reversioners the burden of proof would undoubt^
edly have lain on the transferee ; but it is not at all clear how
persons in the position of the appellants t. ^ ., claiming merely
as pre-emptors would be entitled to have the burden of proof
thrown on the transferee. Primd facie it is for them to prove
the case they are setting up. Babu Basdeo Lai on behalf of the
appellants was unable to refer us to any case in which it was
held that as against a pre-emptor a transferee had to prove

(1) I Oudh Cases, 75.



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34



THE OUDH CASES.



Ealka Singh
and another



V.

: Ennwar
Gajraj Singh
and another.



[Vol. Vn.



legal necessiiy. As the finding with respect to the instrument
of the 8th. January 1901 is sufficient to dispose of the case, it
is unnecessary to go further into this question* £ would dismiss
this appeal with costs.

Chamieb, a. J. 0. — I agree. It seems to me that what the
plaintiffs rely upon as a sale giving rise to a right of pre-emption
is not a sale within the meaning of Chapter II of the Oudh
Laws Act, 1876. I observe that the plaintiffs allege that the
value of the property is Rs. 25,000. The value is probably
very much less than Bs. 25,000 and I doubt whether this appeal
need have been heard by a Bench of two Judges.



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Vol. VIL] THE OUDH CASES. 33

RENT APPEAL No. 59 OF 1903. •



Before Mr, Macleod and Mr. Chamier,



KusHARi Din and others (Defendants) v. Rani Chandar . q/v -
KuAR (Phintif). j^j^ 20.



Rural Police Raie^ suit hy proprietor against under-proprie-^
tors for recovery of - ^Implied contract for maintenance of chowki^
dar—N. W.-P. and Oudh Act V of 1894, sections 13 and 14^
Wajilh'uUarZy admissibility in evidence of.



The respondent was the superior proprietor of a village and the appellants
were the onder-proprietors. The respondent sued the appellants for a certain
sum which he had paid to QoTemment on account of the Rural Police Rate
imposed upon the village under section 13 of N. W.-P. and Oudh Act V of
1894. He contended that the appellants were, within the meaning of s. 14 of
that Act, "bound by contract'* to provide for the maintenance of the
chowkidar. It was conceded that if the waJib'Ul-4irz of the village was
admissible in evidence there was evidence upon the record of facts from which
the existence lof a contract between the talukdar and the under-proprietors
should be inferred whereby the latter were bound to provide for the main-
tenance of the chowkidar but it was contended that the word " contract " in
section 14 of Act V of 1894 means an express contract and not an implied
contract.

ZTtfW, that the Legislature did not intend that the word " contract" in sec-
tion 14 of N. W.-P. and Oudh Act V of 1894 should be confined to an express
contract between the superior and inferior proprietors; that the loi^ib-ul-arx
was admissible as evidence of the arrangements made for the maintenance of
the chowkidar.



• Against the decree of A. Sabonadiere Esq., District Judge, Hardoi, dated
23rd March 1903 modifying the decree of Rai Khushwakt Rai, Deputy Collector,
Hardoi, dated 20th August 1902.



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Kuar,



36 THE OUDH CASES. [Vol. VII.

'f^^^ifrf ^^^^ Appellants.— B. Hargohind Das.

BaniChandar ^^^ RESPONDENT.— Mr. Nabiullali.

Chamier, a. J. C. — ^The question for decision in thi»
appeal is whether the respondent is entitled to recover from the
appellants the snm of Rs. 4-2-0 which the respondent has paid
to Government on account of the Rural Police Rate imposed
upon a village under section 13 of N,-W. P. and Oudh Act V
of 1894. The respondent is the superior proprietor; the appel-
lant and others hold a sub-settlement of the entire village. The
village has been partitioned between the under-proprietors and
it has not been disputed that the appellants may be sued sepa-
rately for their share of any sum recoverable by the respondent
from the under-proprietors.

The combined effect of sections 8 and 14 of the Act is that
superior proprietors may recover what they have paid to Gov-
ernment on account of the Rural Police Rate from under-pro-
prietors who are bound by law decree or contract to provide
wholly or in part for the maintenance of chowkidars. It is not
suggested that the appellants are bound by any law or decree to
make such provision. The question is whether they are bound
by any contract. The first Court held that they are not so
bound but the lower appellate Court held that certain arrange-
ments of which the most important evidence is the wajUHul-
arz amount to such a contract as is intended by section 14 of
the Act.

The first paragraph of the vx^ib-ul-arZj in the preparation
of which both the superior proprietors and the under-proprie-
tors took part, or which at least they all assented to when pre-
pared, shows that the under-proprietors in possession of the
village at the annexation of the Province were the descendants
of the old zemindars, that the village was incorporated in the
superior proprietor's taluqa 60 or 70 years before the annexation
of the Province, that the under-proprietors had obtained in
the settlement Court a decree for a theka pukhtUj t. e.y
for sub-settlement of the village and had engaged to pay the



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Vol. VII.] THE OUDH CASES. .17

rent fixed by the Settlement Officer to the talukdar in certain ^^^^^^^

instalments which are specified. jf- ,

Rani Chandar

In the eleventh paragraph o£ the wajib-ul-arz it is stated Kuar.
that Badla is the chowkidar o£ the village and as such holds 4
bighas 1 Ibis was 10 biswansis rent free and that in case of misbeha-
viour on his part the under-proprietors may with the sanction of
Government dismiss him and appoint another man. It was con-
tended on behalf of the appellants that the wajih^uUarz is not
admissible in proof of the facts therein stated but this conten-
tion dannot be accepted. It is settled law that entries in a
toajib'ulHiTz properly prepared are admissible in proof of any
custom therein recorded and the same holds good with regard
to other matters which it is the duty of the Settlement Officer to
record in the wajih-ul-arz. In paragraph 13 of the memoran-
dum appended to Chief Commissioner's Circular No. 16 of
February 17th 1862 Settlement Officers were directed to record
the names and status of the parties whose duty it was to appoint
chowkidars, the amount of their wages, and the mode of paying
them, and any land in a chowkidar's possession was to be so
recorded with the terms of the tenure. In Circular No. 20
of March 6th 1863, full instructions were given as to prepara-
tion of a toajib^l-arz. Settlement Officers were directed to
enter in paragraph 1 an account of the constitution of the
village together with its past history so far as it could conveni-
ently be traced and in paragraph 11, the arrangements then
existing or which might be agreed to for the future in regard to
the appointment and remuneration of Patwaris, Chowkidars and
other village servants. It is clear therefore tliat it'was the duty
oE the Settlement Officer to make in the loajib-ulHirz of the
village now in question the entries which are set out above and
therefore the wajib-ul-arz is admissible under section 35 of tlio
Evidence Act as evidence of the arrangements made for tlio
maintenance of the chowkidar and of the relations, bet ween the
superior and inferior proprietors.

The evidence of the Patwari shows that the arrangement in
force at the time of the preparation of the wajilh-til-arz for the
remuneration of the chowkidai's continued till 1308 Fasli



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Kushari Din
and others.

r.

Ban! Chandar

Kuar.



38



THE OUDH CASES.



[Vol. VIL



when the^a^V was resumed and the Government began to pay
the chowkidar in cash. Upon the resumption of tiiejagir the
land was let to tenants for Rs. 86 per annum the whole of
which goes into the pockets of the under-proprietors.



It is conceded that if the wajilHul-arz is admissible in
evidence there is evidence upon the record of facts from which
the existence of a contract between the talukdar and the under-
proprietors should be inferred whereby the latter are bound to
provide for the maintenance of the chowkidar. But it is con-
tended that the word " contract" in section 14 of the Act means
an express contract and not an implied contract ue.y a contract
to be inferred from other facts proved.

I^ order to arrive at the proper construction of Beotion 14
of the Act it is permissible to take account of the circumstances
in which the Act was passed. Under native rule the chowkidar
was a servant of the zemindar and was as a rule paid by means of