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a japir in the village. The British Government very soon
realized that this was not a satisfactory arrangement and at the
.first regular settlement the following clause was inserted in the
hahuliyat : — " Dar sural ariz hone wajeh muwajjeh ke Sarkar ne
^Hntizam maash patwarian aur chowhidaran dehat bazarie dene
" arazi ya zar-i-^naqd ke jo zamindaran ke aid kya jawe apne
^^ikhtiyar men rakha hai^ Under this clause and under section
9 of the Oudh Laws Act the Government undertook the pay-
ment of a large number of chowkidars and levied a rate upon
the villages concerned. At the time of the introduction of
what is now the Oudh Local Rates Act 1894 about one-half
of the chowkidars were remunerated in cash paid by tho
Deputy Commissioner, more than a quarter were paid in cash
by zemindars, and less than a quarter were paid by means of
jagirs or partly in cash paid by zemindars and partly by
means ol jagirs. The incidence of the rate before the passing
oB this Act was very uncertain so far as under-proprietors were
concerned, for some times tho superior proprietor recovered the



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Vol. VII.] THE OUDH CASES. 39

rate from them and sometimes he failed to do so. Idoaiot Knsimri Din

. ^ ^ aad otbeuB.

remember having seen any authoritative rulinc upon tlie ques- »*•

.. oil EaniChandar

tion. Kuar.

The position of the Government at the time of the passing
of the Oudh Local Rates Act was this; as between the Govern-
ment and the malgxizars the latter were bound by their Aa6w/f-
yats to defray the cost of maintaining chowkidars, but as bet-
ween malguzars and their under-proprietors there was jop
certain and universal rule; some under-proprietors were bound
by law to provide for chowkidars (see rule 9 of the schedule to
Act XXVI of 18&6), others were bound to do so by deoree of
the Settlement Courts. I have seen more than one decree which
made special provision for the Temuneration of chowkidar6«
There may have been other under-proprietors or lessees who
were bound by express contract with superior proprietors but I
have not myself come across such contracts except in the shape
of compromises given eflEect to in Settlement Court decrees.

In these circumstances the Government introduced what
is now the Oudh Local Rates Act. It provides for the imposition
of a Rural Police Rate not exceeding 3 per cent, on the annual
value of an estate. This rate must in the first instance be paid
by the "landholder" who according to the definition in section 3 is
the proprietor when there is an under-proprietor, but section 14
enables superior proprietors to recover the rate "from under-
proprietors or permanent lessees who are bound by law, decree
or contract to provide wholly or in part for the maintenance of
chowkidars." The question whether this section enables'a superior
proprietor to recover the whole or only a portion of the rate
from an under-proprietor who is bound to provide in part only
for the maintenance of chowkidars does not arise in the present
case for it is conceded that if the plaintiff is entitled to recover
at all she is entitled to recover the full amount claimed.

Now it is certain, — First, that the Legislature did not
intend to shift the burden of providing tor the maintenance of



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40



THE OUDH CASES,



[Vol. Vlt.



Koshari Din
and others*

V.

Rani Ghandar
Koar.



chowkidars from one class to another. Secondly, that the
Legislature Were aware that express contracts regarding the
maintenance of chowkidars and not incorporated in settlement
Court decrees between superior and inferior proprietors were
very rare if not altogether unknown. Thirdly, that the Legis-
lature were aware that there are many superior proprietors in
Ondh who receive from their under-proprietors no more than
10 per cent, over and above the Government demand, and that
they would be deprived of more than half their profits if they
had to pay the Rural Police Rate. Fourthly, that it must
have been borne in mind that where a whole village was held
by under-proprietors the result of the introduction of the rate
and the resumption of the chowkidar's jaffir would be to
increase the profits of the under-proprietors.

Bearing all this in mind I think that the Legislature

cannot have intended that the word contract should be confined

to an express contract between the superior and inferior
proprietor.

In the present case the under-proprietor obtained a sub-
settlement. Therefore it must have been proved that they or
their predecessors had formerly been proprietors of the village,
that their right had been kept alive iwithin limitation, and that
by virtue of their right they had held the village under contract
(j>ahkd) with " some degree of continuousness " as defined in
the Oudh Sub-Settlement Act. The wajib-ul-arz shows that at
the time of the settlement they were liable to provide for the
maintenance of the chowkidar. This liability is ordinarily
attached to the ownership of a village. There can therefore be
little doubt tliat the under-proprietors had provided for the
chowkidar ever since the time when the village was incorporat-
ed in the taluqa. Since that time they must have paid rent
to the holder of the taluqa. From these facts it may be inferred
that one of the terms of the contract on which they held wjis
that they should provide for the chowkidar.

A doubt occurred to me as whether an issue should not be



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Vol. VII.] THE OUDfl CASES. 41

remitted to the lower appellate Court, but neither side has Kushari Din
suggested anything of the kind. In the argument it was v,

assumed tliat if the toajib^l-^rz is admissible there is sufiScient "Kuar.** ^
proof of facts^from which the existence of a contract should be
inferred.

For the reasons which I have given I am of opinion that the
under-proprietors are bound by contract to provide for the main-
tenance of the ohowkidar. The appellants are therefore liable
for their share of the rate and I would dismiss this appeal with
costs.

Maclbod, a. J. C. — ^It is unnecessary to recapitulate the
facts which are fully set out in the judgment of my learned
colleague. Under section 14 of the Oudh Local Bates Act,
1894, the land-holder is entitled to recover the Rural Police Rate
paid by himself from any under-proprietor "bound by law,
decree or contract to provide • • . for the maintenance" of the
chowkidar. There is no law, decree or express contract
by which the appellant is bound in this case. Two questions
arise: — (1) Whether the word " contract" in section 14 includes
" implied" contract, and (2) If so, whether there was an implied
contract that the appellant should provide for the maintenance
of the chowkidar.

As regards the first question, section 9 of the Indian Contract
Act explains the difference between express and implied con-
tracts. In so far as they are made in words they ar^ said to be
express ; in' so far as they are made otherwise than in words
they are said to be implied. " An express contract is proved
" by words, written or spoken, expressing an agreement of the
" parties ; an implied contract is proved by circumstantial
" evidence of the agreement." (Leake on Contract, 3rd
Edition, p. 9).

" The only difference between an express and an implied
" contract is in the mode of proof. An express contract is
" proved by direct evidence, an implied contract by circumstan-
" tial evidence. Whether the contract be proved by evi^enca



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42



TAB OUDH CASES.



[Vol. Vli.



Kushari Din
and others.

V.

Bani Chandar
Kuar.



" direct or circumstantial, the legal consequences resulting
" must be tho same." (Marzetti v. Williamsy 1 B. and Ad.
425). There is therefore no essential difiEerence between an
express contract and an implied contract ; it is merely a ques-
tion o£ the mode of proof. The word " contract" by itself
covers both an express contract and an implied contract.

If the Legislature had intended to confine the word '^ con-
tract," in section 14 of the Oudh Local Bates Act, 1894, to
" express contracts," it would have been easy for it to have
done so by appropriate words.

I am unable to discover anything in the word " contract,"
as used in section 14, or in the context, or in the history of the
enactment, or in the consequencea resulting from a literal in-
terpretation of the word, to suggest that the Legislature intend-
ed that the word should not be used in its ordinary sense but
should be confined to express contracts only.

As regards the second question, I agree with my learned
colleague that the wajilHul'^rz must be tdsen into consideration
and that the circumstantial evidence clearly establishes an
agreement that the appellant (together with his co-sharers) was
to provide for the maintenance of the chowkidar, and that
there is no necessity to remit an issue on this point for trial by
the lower appellate Court.

I concur with him bs to the order which be proposes we
shoi^ld pass.



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Vol. VIL] the OUDH CASES. 43

FIRST CIVIL APPEAL, Na. 11 OF 1902.*



Before Mr. Scott and Mr. Sp<mkie%



Hani Jaibans Kuab (Plaintiff) v. Chouras Kuar (Defendant)^ 1904.

J ULY 24*

Pleader* s/eeSf how to he calculated in a suit for pre-emjH
iion — Oudh Civil Digest^ paragraph 288^ Rule 4 — Decree^
amendment of — Civil Procedure Code^ s. 206^



In a sait tor pre-emption a decree in favour ot the plaintiff was prepared
«nd signed whicli included a certain sum on account of pleader's fees calculated
on the market value of the property. The defendant subsequently applied
under section 206, Civil Procedure Code, for amendment lof the decree by
including in the costs pleader's fees calculated on the value of the property at
the rate of five times the Government Revenue, assested on the land. The
application was allowed and the decree was amended accordingly, but the
total amount of costs to be paid by the defendant to the plaintiff was not al-
tered by an overmght. The plaintiff appealed from the decree as amended on
the grounds (1) that pleader's fees should have been awarded on the market
value of the property and (2) that the lower Court bad no jurisdiction to
amend the decree.

Beld^ that, having regard to Rule 4 of {>aragTaph 288 of the Oudh Civil
Digest, the pleader's fees were rightly calculated on the value of the property at
the rate of five times the Government Revenue assessed on the land.

Held further, that costs allowed in the decree not having been calculated
according to law, the decree was at variance with the judgment and the lower
Court had power to amend it.



For Appellant. — Syed Wazir Hasan.

Scott, J. C. and Spankib, A. J. C. — This is an appeal from
the decree of the Subordinate Judge of Partabgarh in a suit for
pre-emption. The judgment is dated the 25th August, 1900,
and ordered that a decree be passed in favour of the plaintiflE

• Against the order of M. Sharaf Ali, Subordiuate Judge, Partabgarh, dated

26th August, 1900.

14th December, 1001.



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Chouras Kuor



4i THE OUDfl CASES. f Vol. VII.

Ran!^ Jaibans for possession'of the property on payment of Rs.' 40,624 and for
costs. A decree was prepared andirsigned which ordered that
the defendant should pay to the plaintifiE Rs. 1387-10-0, which
included Rs. 756 on account of pleader*s fees calculated on the
market value of the property. The defendant subsequently
applied under s. 206, Civil Procedure Code, for amendment of
the decree by including in the^costs pleader's fees calculated on
the value of the property at the rate of five times the Government
revenue assessed on the land, and the application was allowed
on the 14th December 1901. The decree was then amended
by altering the Rs. 756 allowed for pleader's fees in the
calculation of costs to Rs. 408-8-0, but the total amount of
costs to be paid by the defendant to the plaintiff was not altered,
probably by^an oversight.

The plaintiff now appeals from the decree as amended oq
the grounds; (1) that pleader's fees should have been awarded
on the market value of the property and (2) that the lower
Court had no jurisdictioftto amend the decree. The judgment
did not state the manner in which costs should be calculated.
Paragraph 288 of the Gudh Civil Digest prescribes how pleader's
fees are to be calculated in awarding costs. Rule I is to the
effect that if the amount or value of the claim exceeds Rs. 5,000
but does not exceed Rs. 20,000, such fees shall be on Rs. 5,000
at the rate of 5 per cent and on the remainder at Iper cent. IE
the amount or value of the claim exceeds Rs. 20,000 but does
not exceed Rs. 50,000 the fees shall be at 5 per cent on
Rs. 20,000 and on the remainder at one per cent. Paragraph 4
provides that " the words the amount or value of the claim" in
rules 1 and 3 mean the value as set forth in the plaint, applica-
tion or memorandum of appeal, and the value shall be therein
set forth in accordance with the market value of the subject
matter in dispute ; and where court-fees are payable ad valorem^
" the value according to which such court-fees are paid." Under
8. 7, para VI of the Court Fees Act in suits for pre-emption
the amount of fee payable is " according to the value (computed
in accordance with paragraph V of this section) of the land



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t,

Chouras Knar



.Vol. nTIL] THE OUDH OASES, 45

house or garden in respect of which the right h claimed," ^"k^p*****
and paragraph Y is to the efiEect that in soits {or the possession
of land, the value of the subject-matter in the case of land
paying annual revenue to Government etc., and such revenue is
not permanently settled, shall be deemed to be five times
the revenue so payable. The court-fee payable in respect to
the present suit was therefore ad valorem^ according to the value
of the land, the; subject-matter of the suit, such value to be
calculated in a particular manner, that is, at five times the
revenue payable to Government on account of it. According
to Rule 4 of paragraph 288 of the Civil Digest the amount or
value of the claim in Rule I for the purpose of calculating the
pleader's fees in calculating costs to be allowed to plaintiff was
therefore five times the revenue payable annually on account of
the land^in suit^and it is not contended that Rs. 408-8 is not the
correct amount to be included in the costs on account of
pleader's fees according to this calculation. As to the second
ground of appeal, section 206, Code of Civil Procediiro penuits
the amendment of a decree which is at varianct; \\\{\\ tlio
judgment and the judgment must be read as tjjrantino; tlio
plaintiff costs calculated according to law. Tho costs allowed
in the decree were not so calculated and the decree \vas there-
fore not in accordance with the judgment^ so that tho lower
Court had power to amend it.

The learned pleader for the appellant addressed us at
considerable length on the question whether an appeal lies from
an order amending a decree or only art application for revision
of such an 'order can be made, but the question does not arise in
this appeal, which is not from the order amending the decree,
but from the decree as amended and the appeal is^ provided for
by section 540, Civil Procedure Code. It was^ filed on the 17th
February, 1902, and although the judgment is dated the 25th
August, il900, the facts stateil above are a sufficient reason
under section 5 of the Limitation Act, for not presenting the
appeal within the period allowed from the date of the- decree.
•We dif^miss the appeal but, as the respondent has not appeared,
^uke no order as to cost:?. •



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46 THE ODDH CASES. [Vol. VIL

SECOND CIVIL APPEAL, No. 176 OF 1903.*



Before Mr. Chamfer,



1904. Gaya Pbasap (Defendant) v. Musam^t Maharaj Kuak

JAinr. 26. ,r>, . .^. \ ^ y

(Plaintiff),



MinoTy promise to pay money made by guardian oniekalf of —
Personal liability of minor for money borrowed for his use by
guardian — Limitation.



It it settled law that altbongfa a guardian may under oertaia eh^mdBtaiicev
sen or charge his wanTs propefty he cannot bind his ward persoMilIy by a
covenant or by a promise to pay money cr damages.

Tbe respondent brought a suit agai&at the appellant and bis mother upon
a sinrplQ bond executed and registered on the 3id February 1896 whereby the
mother both for herself and as guardian oC tbe appellant who was then a minor
promised to pay a certain sum of money with interest at 1 per cent per moDflem
within one year. The suit was instituted on April 24tb 1903, 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 accrued upon the boi^d. The Courts found that there
was urgent necessity for tbe loan and that the money was applied soloiy for the
relief of the appellant.

Ileldy that tbe bond was oof bimling upon tbe appdlant and that therefore
tbe suit was barred by limitation.



For Appbllawt. — Babu Isvan Dayal.

For Rbsponpent. — Mirza Sami-^llah Beg.

Chamier, a. J. C. — Thh appeal arises oat of a suifc bronght

by the respondent: against tbe appellant and his mother upon a

* Against the decree of Kuar Fanuanand, Rai Bahadur, Subordinate
Judge, Ilac Barcli, date.l 9th Marc!i 1903, confirming the decree of Babu Mathora
Prasad, Munsif, Rai B^-eli, dated 2Uh S2ptemb3r 1902.



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y



Vol. VII.] THE OUDH CASES. 47

simple bond dated February 3rd 1896 wbereby tbo inotber both Onya Prasatl

for herself and as guardian of the appellant, who was then a Muaammat
minor, promised to pay the sum Rs. 298 with interest at Ktm™^

1 per cent, per mensem within one year.

It has been found by the Courts below that the respondeat
advanced the money after hating made enquiries as to the
necessity for a loan^ that there was urgent necessity for the
loan, and that the motley was ap|>li«d solely for the relief of
the appellant. The Courts below have passed a decree against
both mother and som. The mother has not appealed. For the son
who has appealed it is pointed out that the suit was not instituted
till April 24th 1902, t. ^., more than six years after the date of
the loan, although less than si^ years from the date on which a
cause of action accrued upon the bond.

As a suit upon the bond, which is registered, the claim is
within time. But it is contended that die appellant is not liable
on the promise contained in the bond, and that the respondent
must fall back upon section 68 of the Contract Act with the
result that the suit will be barred by limitation. The
question for decision is whether even on the facts found the
appellant is liable to be sued upon the bond. It is settlied 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 any promise to pily money or
' damages. See Wagliela Rajsanji v. Masludin (1) Indur
Chunder Singh v. Radhakishore (2) Ranmal Sinpji v. Vadilal
Vakhatchand (3) and Gharhullah v. Khalak Singh (4).
It was contended that a decree should at least be passed for
the sum due to the respondent, execution being limited to the
property of the appellant ; but, this cannot be done for the
liability of the appellant's property under section 68 of the
Contract Act arose not from the bond but from the fact that the
money was advanced to relieve his necessity and, as already

(1) I. L. R., 11 Bom., 561. (2) I. L. R., 19 Calc, 607.

(3) I. L. R., 20 Bom., Gl. (4) I.L.R.,25 AU., 407 at i)age 416.



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4S



THE OUDH CASES.



[Vol. VU.



Qaja Prasad

Mosammat

Maharaj

Knar.



stated, if the bond is not binding npon the appellant the soit is
barred by limitation.

There are two cases in the Madras High Court which at
first sight support the contention of the respondent namely
Sundararaja t. PcUtanatkusami (I) and Subramania Ayyar v.
Arumiiga Chetty (2), bnt; the contract which is referred to in
the judgment in the first case and which the Court suggested
might have been binding upon the minor if necessity had been
proved is, I think, the contract under which the Vakil was
employed and not the contract contained in the promissory note,
and in the second case the last paragraph of thejadgment shows
that in the Court's opinion the promissory note in suit could
only be used as an acknowledgment of liability under section
19 of the Limitation Act.

Assuming that the bond which is the subject of the present
suit can be used as an acknowledgment of liability, on the
part of the minor the suit is still barred by limitation.
In my opinion the respondent's suit should have been dis-
missed as against the appellant. I accept this appeal, set aside
the decrees of the Courts below so far as the appellant is
concerned and dismiss the suit as against him. The respondent
will pay the appellant's costs in all three Courts.

(1) 1. L. R^ 17 Mad., 806.

(2) I. L. R., 27 Mad., 330.



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Vol. VIL] THE OUDH CAfc>ES, 49

SECOND CIVIL APPEAL, No. 370 OF 1901.*



Before Mr. Macleod.



Sheikh Mlbakak Ali {Defendant) t?. Musammat Buqaya 1904.
BiBi (Plamtif). F»»- 2-



Objection filed in second appeal — Code of Civil Procedure^
section 561 and 684.



In an objection under sec. 561 of tlie Code of Civil Procedure filed in a
case in second appeal the ground taken was '* that the learned District Judge
is wrong in hoMing that the muafi Chak Gudar Shah waa toaqf pro[)erty and
that the plaintiff waa not entitled to her legal share in it/*

Ueldy that the ground taken in an objection under sec. 561, Civil
Procedure Code, when filed in a case in second appeal must comply with the
prOTlsions of sec. 584 of that Code, and that the ground in question as drafted
did not comply with the {Hrovisions of that section as it did not allege that the
decision was contrary to any specified law or usage having the force of law.



For Appellant. — B. Basdeo Lai.

For Respondent. — M. Muhammad Nasim.

In a second appeal an objection was filed by the respondent
nnder section 561 of the Code of Civil Procedure on two
grounds. The following extract from the judgment of the Court
in sufficient for the purpose of this report : —

Macleod, a. J. C. — The first ground taken in the objection
is "that the learned District Judge is wrong in holding

* Against the decree of E. A. Kendall Esq., District Judge> Gonda dated
16th July 1901 reversing the decree of Pt, Durga Dutt Joshi, Subordinate «Kidge,
Gonda, dated 29th June 1899.



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50



THE OUDH CASES.



[Vol. Vlt.



Sheikh

Mubarak Ali

r.

Musammat

Buqaya Bibi.



" that the muaji Chak Gudar Shah was wag/ property and that
" the plaintiff was not entitled to her legal share in it.*' The
ground taken in an objection under section 561 when filed in a
case in secpnd appeal must comply with the provisions of section
584. The ground in question as drafted might have been suit-
able in a case of first appeal but it does not comply with the
provisions of section 584 as it does not allege that the decision
is contrary to any specified law or usage having the force of
law. The Subordinate Judge found that there was oral evidence
showing that the property referred to was constituted tcaqf
twenty years previously and said that the respondent had not
produced any witnesses on the point. The District Judge finds
that the property was purchased on purpose that it should be
dedicated to the Durgah and that it was so dedicated.
Mr. Mohammed Nasim admits that property can be constituted
icaqf by an oral dedication. He wishes, however, to raise
various legal points to show that there could not have been any
valid dedication in this case. As these grounds have not been
specified in the objection filed under s. 561, I must decline to
go into them. Considerable latitude has hitherto been allowed
in the matter of drafting the grounds in second appeal, but tlie
attention of pleaders has been directed to the point for at least
18 months, so that Mr. Mohammed Nasim can hardly complain
that he is taken by surprise. See Chhabba Earn v. ThaJcur
Jawahir Singh (1).

(1) COudh Cases 39.



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Vol. VII.] THE OUDH CASES. 51

CRIMINAL APPLICATION, No. 7 OF 1904. *



He/ore Mr. MacleoiL



G. T. Jackson (Applicant) v. King-Emperok (Opposite 1904*



Party).



Canienment Code, 1899, ss. 83 and 85 — Notice for repairs
of building — " Insanitary state " and " defects^'' meaning of—



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