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

- possession. When the purpose of the grant is * guxara^ or the maintepanoe of
the grantee^ it is immaterial whether the words * in perpetuity * or words to that
effect aippear, and the grant must be taken to be for life only«

Upon the facts found, the Court held that there had been no award by the
British Indian Association and that the mle»of -that body did not apply.



'For Appellant. — M. Mohammed Nashn.

Fob Ebsponixbnts. — Mr. J. H. W. Arathoon and Mirza
Samiullak Beg.

Macleod, A. J. C— This was a suit to recover possession
<o£ 113 bighas 12 biswasodd "^rw^am" land granted by the



^Against the decree of Euar Bharat Singh, District Judge, Bae Bareli, dated
23rd September 1902, modifying the decree of M. Mohammad Asghar, Subordi-
4xate Judge, Hae Barcli, dated 3l8t July 1901.



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Vol. VIL]



THE OUDH CASES.



9^1



plaintiff's grand-father, Baja Jagmohan Singh, to S&ankar
Bakbsh Singh, his brother, and the father of the defendants, in
•December 1868, on the ground that the grant wa» only for the
life of Shankar Bakhsh Singh .

The following table shows the relationship of the parties i —
RAJA DALJIT SINGH.



Baja Jagmohan
: . Singh
id. 1879.^



Arjun Singh



heJharl



Shankar Bakhsh
Singh
^d. 30-3-89.')



Sheo Narain
{d. 18840



B. Bisheshar Singh.
(d. 2887.)



Bhagwan Bakhsh Singh
(Dt/endant.)



Suraj Bakhsh Bingh-
(De/endantJ



hshi



B. Rameshar Bakhsh Singh.
(Plaintiff.)

In 1856 Raja Daljit Singh gave a village each to Arjnnr
Singh, Shankar Bakhsh Singh, and Sheo Narain Singh. Arjun
and Shankar Bakhsh were not satisfied and unsuccessEulljr
claimed shares in the taluqa in the snmmarj settlement of
1858-59. Dispates went on and finally on 20th December, 1868
Raja Jagmohan Singh agreed to give Arjun and Shankar
Bakhsh a farther cash allowance which was changed for land,
the land in suit being that which was made over to Shankar
Bakhsh.

• Sheo Narain died in 1884 without male issue and Arjun
claimed as heir the village the former had received from Raja
Daljit Singh, on the ground that the grant had conveyed an
estate of inheritance. The case went up to the Privy Council
and their Lordships' judgment wiH be found in Rameshar
BaJchsh Singh v. Arjun Singh (1)* It was decided that Sheo^



:SKja
Rameahor

Bakhsh

Singh,
r.

fiabu
Bhagwan

Bakhsh

Singh
aad aaethc^*



(1) I. L. R., 23 AU^ 191.



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&s



THE OUDH CASESr.



tvoi. vn.



Baja

BiuQae«facr
BakhBh

BAbu

Bbafwan

Bakbih



and aaothgr.



NaraiAJbad received a grant for life only. 8oi4e of ibe iftatUN
considered in ihat case are material to the present o&e. Tfaefar
Lordships decided that there was nothing in the award of Aa
British Indian Association in the mattersof Ok^ claims of Arjun
and Shankar.Bakhshto show that the grants of the Tillages to them
were absolute. In the present case it has been argued that as
the land was given in addition to the village T)riginall7 granted
the grant must be presumed to be of the same nature, and as
an absolute estate of inheritance was granted in the village the
two defendants must have an absolute proprietary title to the
land now in dispute. Their Lordships' judgment in Arjun
Singh's case disposes of this contention.

Their Lordships had also before them Cokmel Barrow'9
order of 9th February 1869, which is relied on by the defend-
ants in this case, with its statement that ihe Baja had agreed to
give the further allowance ^^ in perpetuity/' and also the decrees
of the Settlement Court in 1869, decreeing the proprietary rights
in the two villages respectively to Arjun and Shanker Bakhsh
^* and their heirs ". Their Lordships held that where purpose
of tlie grant is *^ guzara ^ or the maintenanoe of the grantee ii
is immaterial whether the words *^ in perpetuity *' or words to
that effect appear and the grant must be taken to be for Ufe
only. The particular grant with reference to which this was
held was one by Baja BishesharSbgh in 1879 in favour of Sheo
Narain in substitution of the original grant in 1856 in his
favour by Baja Daljit Singh. It remains to be seen in the pre-
sent case whether there was any award by the British Indian
Association filed under s. 33 of the Oudh Estates Act, 1869,
which would convert the grant into an absolute estate of inherit-
ance.

The Courtof first instance held that the grant was forlifeonly,
but relying on Select Case No. 42 held that the plaintiff was not
entitled to possession, but under the rules of the British Indian
Association only to 25 per cent of tbp nihasi and that in the next
generation the plaintiff would be entjitled to 50 per cent of the



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Vol. VII.] THE OUDH CASES. 93.

nikiUi^ It left the ikmaiint to \^ determined in the execnlion ^ ^^i^

RameahAr

department. Bakhsh

Singh.

]B<>th parties appealed. ^^'^^

Bhagwan

A On the plaintiff's appeal the lower appellate Court ^^^

fixed the amount payable yearly at Bs. 15X-8-0 aad another;
instead of leaviog it to l>e determined in the,
execution department. It refused a decree for
possession.

B On the defendant's appeal tlie lower appellate
Court held ^lutt the grant was f6r Kf e only and
did not confer an absolute estate and dismissed
the appeal.

Three appeals are before this Court.

No. 37. — ^The plaintiflPs appeal against decree A.

(The plaintiff claims possession of the land.)

No. 4B.~-The defendants' appeal against decree B.
(The defendants allege that the estate granted to
Shankar Bakhsh was heritable and transferable.)

No. A9.-»Tbe delendants' appeal against decree A.

(The dcifenchnts allege that the vent fixed is
exoessiFe ^d that it should not be double in the
next generatiim.)

The defendants withdraw appeal No. t9. It is stated on
tiieir b^alf that if this Court does not hold that they have an
absolute estate then relying on Select Case No. 42 they claim
to retain possession on payment of rent under the rules of the
British Indian Association and they do not now object to the
sum fixed by the lower appellate Court.

Two questions are therefore now before us:—

(1) Whether the grant to Shankar Bakhsh was of an

absolute estate or for life only.

(2) If it was for life only whether the plaintiff is

entitled to possession or only to get rent from



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d4



tBB<>UDH CASES*



[Vol. VII.



Itaja

Rameshar

Bakbsh

Singh.

V.

Baba

Bhagwan

Bakhsh

Siogh

aad ^othen



the. defendants under the rales of the British
Indian Association^

As regards the first qaestion mnch reliance is placed on
Colonel Barrow's order of 9th February 1869 and the words ** in
perpetaitj'* which appear in it»/ It is clear from an examina-
tion of the original file that he was referring to Raja Jagmohan
Singh's grant of 20th December 1868 (Exhibit AS) which was
sent on to him by the British Indian^Association by their order
of the same date (Exhibit A4); it is also clear from a marginal
note in his own hand-writing that he had not the grant before

him. In the order he says *'the Talaqdar has consented to^

give up lands paying (blank) Bs. more in perpetuity to the^
two plaintifiEs." His marginal note to the office is» ''TheiMaharaja
(Man Singh) has got the agreement; get the amonnt from hinir
and enter. I forget what it was. (Sd.) L. B."

Neither the grant (or agreement) Exhibit A3 nor the order
Exhibit A4 contains anything corresponding to the words *' in
perpetuity" in Colonel Barrow's order of 9th February 1869 ;
and I can only conclude that he entered those words under a
misapprehension.

It is cont^ded. on behalf 'of the defendants that this so-
called order has the effect of a/<lecree and that as the plaintiff*
and his ancestors :iiey<er sued to hgye it set' aside it has now be*
come absolute. From an inspection of the original file it ap-
pears to be mainly a note drawn up by the o&ce with a few re-
marks added at the end by Colonel Barraw. Further, there are
other similar memos by him referring to the same matter, viz.^
one o£ 6th May, 1869 at the foot of tlie award of the British.
Indian Association of 29th August 186&, anid another of 12tk
July 1869 at the foot of another office memo» None of them are
in the shape of a formal order in the case. I can see no sufficient
reason for holding that the remarks of 9th February 1868
must be treated as the format order in the case and as having
the force of a decree which cannot now be impugned.

There is n<t evidence to show that the grant was intended
to confer an absolute estate and I would hold se.



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VuL. viio



THE OUDH CASES.



95



As regards theis^cond point, namely, whether the rules of
the British Indian Association apply, there seem to be two ob-
jections to holding that they apply— ^first, there does not seem to
have^been any *'award" by that body* and secondly, even if
the order of 20th December 1869 (Exhibit A4) forwarding the
agreement to the Financial Commissioner be taken to amount
to an award there is nothing in it to indicate that the British
Indian Association themselves intended that the ^'rnles" should
apply.

Select Case No. 42 has been dissented from by a Bench of
this Court in Ganga Bakhsh v. Dalip Singh (I) and can no longer
be treated as an authority for the proposition that unless the
contrary is expressly stated in an award of the British Indian
Association; it must be read as having been made subject to
their "rules".

I would hold that the grant was for life only and that the
plaintiff is entitled to possession and modify decree " A '^ of the
lower appellate Court accordingly.

I would allow appeal No. 87 and dismiss appeals Nos. 48
and 49, giving the plaintiff his costs in all three Courts. .

Chamibb, a. J. C— I agree.

(1) F. C. 4. No. 90| of 1902 deeided on SOtb Janiiary 1908.



Raja

Raxneshar

Bakhsh

Singh

t,

Babu

Bhagwaa

Bakhsh

Singh

and another.



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Feb. 1.



96 THE OUDH CASKS- [ V^u Xli.

SECOND CIVIL APPEAL, No. 77 ^i 1903.'



Before Mr. Seoti.



1904. Mahtab Chakd (Defendant) v Bur Chai^p and others



(Plaintifs).



Separate property ef father^ tuk biltoeen ionifor poisenifm



ngfOnst acertiaapeiiQii,l>atdiedbetorethedaoceewM«(«coted, ividUienm^
of the appellant was brongbt on the i^oord as his CaUiv J^m represcsntaitiTe and
ift an auction sale In esecatlon of the decree he pmchaaed the property in toH.
The respondents, being the sons and grandson of Pmed tlM appellant lor
poosession of their share in the property.

MM that the property not being the joint family property of the parties,
the respondents were entitled to sae for their share of it whether there was or
was not joint funily property which fewwiied to be partitioned,



Fob Ambujlnt— Mb. J. K. Butt.
For Rbspondbnts— B. Ban49o Lai.

SoMT^ J. G^-l'inil Obrad bad tmxt mm§, Mahtab Chand
appellant, Rap Chand respondent, Shitab Chand, the father of
the respondent Sarnp Chand, and Mnlohand. It is admitted
tifaat the father and the sons had separated. Phnl Chand
obtained a money-decree against one Chheda Khan bnt died
before the decree was execnted. The name of the appellant
Mahtab Chand was bronght on the record as his father's re-
presentative and at an auction sale in execution of the decree
he purchased the property in suit, the amount of the judgment-
debt being credited towards the purchase-money. This suit
was instituted by the respondents for possession of half the

* Aganist the decree of M. Muhammad Tajnddin, Snbordinate Jndge
Lucknow, dated 90th November 1901, confliming the decree of Pandit Bnraj
Varain Bahadur, Monsif (North), Lncknow.



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Vol. VII.] THE OUDH CASES. 97

share in the property on the allegation that the appellant chan?

pnrcbased it as the representative of all the heirs of his father. r

. - Eup Chjuid

The lower Courts decreed the claim and the principal ground

now taken in appeal is that the respondents are in possession
of joint family property and therefore cannot sne for their
share of the property in suit without bringing the whole
property into hotch-pot. This contention cannot be sup-
ported. It is admitted that the father was separated from
his sons when he obtained the decree against Chheda Khan.
Neither the jndgment-debt nor the property purchased by the
appellant at auction sale in execution of the decree was ever
the joint family property of the parties to the suit. Their titla
to it did not arise by survivorship but as heirs of Phul Chand.
As it was not the joint family property of the parties the res-
pondents were entitled to sue for their share of it whether
there is or is not joint family property which remains to be
partitioned. The appeal therefore fails and is dismissed with
costs. The respondents have filed objections under s. 561
Civil Procedure Code, in reference to the claim f(w costs of
summoning witnesses who were not examined. The lower
Courts rightly rejected the claim for such costs and the
objections are accordingly dismissed with ccsts.



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1903.
Dbc. 4.



98 THE OUDH CASES. [Vol. VII.

SECOND CIVIL APPEAL, No. 162 OF 1903, *



"Before Mr. Scdtt and Mr. Chamier.



Bhairon Bakhsh (Defendant) v. Baldbo SiNQH (Plaintiff).



Pre-emption^ suit for — Reversionary interetly tale of-^
PomhiVxty of succession not a saleable interest — Persons hamng
g)ossibility of succession not co-sharers toith those having similar
possibility — Transfer of Property Act^ s, 43 — Indian Limitation
Act, sch. a, Art, 10^



A Hindu widow haying sold to^he defendant somo land inherited from
her husband, X, i>^and the phOntiffas her husband^B reversionary heinsoed
ber and the defendant for a declaration that the alienatien would bo
inyalid a^nst them after the widow*s death, and obtained a declaration to
that effect. Subsequently on the 16th February 1897 L and N who were
presumptively entitled to a half share in the land after the widow's death
executed a deed in favour of the defendant and eertais other penPMiB in re8<-
pect of that share. In the deed, they stated that they sold ih« half shan
which would devolve upon them upon the widow's death,that by virtue ^
the deed executed by the widow the vendee would continue In possession
of the land sold by the widow, during the life-time of the widow, and that
on her death they would acquire proprietary possession of the land under
the present deed. The widow having died, the plaintiff on the 28th August
1898 instituted a suit against the defendant and others who were parties to
the sale-deed of 16th February 1897, claiming of preemption of the half sharo
of L and N.

Heldy that the vendors had at the time of the execution of the sale-deed of
16th February 1897 no saleable interest in the property, that they sold a bare
possibility of suocession, that persons who had a bare possibility of succession
were not co-sharers with others who had a similar possibility, and that s. 43 of
the Transfer of Property Act did not apply.

Held further, that if the case could be regarded as one in which a widow had
transferred her husband's property with the consent of the reversioners and a
good Utle had passed at once to the defendant and a right of pre-emption accrued,
the suit would be barred by limitation under art. 10 sch. ii of the Indian
Limitation Act.

* Against the decree of S. Sharaf Ali, Subordinate Judge, Roe Bareli,
dated 5tb May 1899, confirming the decree of B, Grish Chander Bosc, Munsif ,
Rac Bareli dated 16th February 1899,



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f.
Baldeo Singb



Vol. Vn.] THE OUDH CASES. 99

Fob Appellant.— Messrs. J. S. Misra and J. N. Dutt. ^^^^

Fob Bbspondbnt. — M. Mohammad Nasim.

Ohamibr, a. J. 0. — ^This appeal was dismissed (or default
on December 22nd 1902, snbseqnently restored and then allowed'^,
bat on an application £or review of judgment being made the-
judgment was set aside and the appeal was referred to. a. Bench'
of two Judges by an order dated August 25th 1903. The facta
are fully stated in the order x^t mentioned and need not be
repeated here.

At the date of the sale-deed executed by them Lalta Sii^b
and Naurang Singh had no vested interest in but only a chanco
of succeeding to the property in questi6ni.S It was in my
opinion only a possibility of the kind referred to in s. 6 (a)
of the Transfer of Property Act and therefore could not be
transferred. It is also clear that what they attempted to sell
did not admit of physical possession so that if art 10 of sch. ii
of the Limitation Act applies and time runs from the date of
the sale«deed the sale is barredSby limitation.

But it is contended on behalf of the plaintiff-respondeirt
tbnt as the vendors had nothing to sell at the date of the sale-
deed» bat subsequently became entitled t» the property, s. 43
of the Transfer of Property Act shoald be held to apply and'
the sale should be regarded as having taken place at the death
of the widow, the deed being regarded as no more than a contract
to sell the property if the vendors became entitled to it whent
the widow died, and we were referred to the cases of Janki v..
Girjadat (1), Begam v. Muhammad YakuB (2), Najm-unrnissa
V. Ajaib Alt Khan (5), and Hub Alt v. Kazim ffusain Khanr
(4), decided by Mr. Capper, Judicial CoBwnissioner of Oudh
on October 27th 1881, in all of which it was held that a right
of pre-emption accrued upon completion of a safe by transfer
of possession although no registered deed had been executed.

I doubt whether s. 43 of the Transfer of Property Act

(1) I. L. R., 7 All., 482. (3) I. L. R., 22 All., 343.

(2) I. L. R., 16 All, 344. (4) F. C. A., No. 22 of 1881.



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100 THE OUDll CASES. [VoL. Vlt

MUti\Toti applies to such a case as this for there was no erroneotis tepre-'

baklish ^^ ,.11

t. sentatioD on the part of the vendors and both parties to the salcr

were fully aware of the nature of the interest which the deed
purported to transfer. But an agreement for consideration to
f.ljell after-acquired property is ctoe which will be enforced
by our Courts (see Tailby v. The Official Receiver (1).)
According to the view taken in England as soon as the
property comes into existence, or as here the estate falls into
possession, the beneficial interest in it is considered as having
vested in the transferee and the Court will in a proper case
pass a decree for srpecific performance ; the contract is regard-
ed as having transferred the beneficial interest to the purchaser
as soon as the property is acquired. I was at first much
attracted by the argument that the sale-deed should in the
present case be considered to be a mere contract to sell and
that the sale itself should be held to have taken place at the
data when it bocame effective t. e. at the date of the death ot
the widow, and that such a sale should be held to be a suflScient
foundation for a claim to pi'e-emption. But on consideratioD
1 am of opinion that such a view should not be entertained. A
pre-emptor must " take over," so to speak, the bargain made by
the purchaser, but the contention now tinder consideration re-
quires us to ho W that while the purchaser paid tor an un-
certainty the pre-emptor need not assert his right unless the
V estate falls into possession and that he need pay no more than
the purchaser did though the uncertainty has become a certain-
ty. Such a view is altogether foreign to the law of pre-
emption as I understand it, and needless to say it is impossible
for us to recast the contract and compel the pre-emptor to pay
ft fair price for the property. It was said that if it was held
that neither at the date of the deed nor at the death of the
widow was there a sale such as could give rise to a claim for
pre-emption the right of pre-emption could in such cases as this
be defeated. I do not myself iJiink that that would be a very
lamentable result, but the plaintiff^s right of pre-emption in the

CO L. B.. 13 Appeal Cases. 523,



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Vol. VII.I THE OtJDH CASES. 101

present case must rest upon ss. 6 — 16 of the Oudh Laws Act b^ k^h
and without patting a forced codstrnction upon these sections «•

it is impossible to hold that they cover such a case as this. The ^ *°^

four cases referi'ed to difiEer widely from the present case. In
the first three, the Allahabad cases, the pre-*emptor took over
the bargain made by the purchaser. The fourth case was treat-
ed as one of foreclosure though no foreclosure in law had
taken place*

Next it was contended that even if no sale took placd
either at the date of the deed or at the death of the widow the
deed at least evidenced a contract or proposal to sell and that A
right of pre-emption arises under the Oudh Laws Act when a
person "proposes to sell'^ and not upon the completion of the sale.
As at present advised I cannot assent to this, and assuming that
it is a correct view of the law I think it is clear that under
8. 10 the person proposing to sell a possibility of succession
could not ascertain who the '' persons concerned " were, because
at the time he could not know who would survive the holder
of the property and persons who have a bare possibility of
succession are not co-sharers with others who have a similar
possibility ; therefore the person proposing to sell could not
comply with the law. It was suggested in the last resort that
the notice should in such a case as this be given when the estate
falls into possession but the section shows that notice should be
given at the time when the person " proposes to sell. " The
more the Act is examined the more impossible does it seem to
apply it to such a case as this in the manner proposed.

In my opinion the vendors had at the time of the execution
of the sale^deed no saleable interest in the property. If they
had any saleable interest that is not the interest which the
pre-emptor seeks to acquire* They sold a possibility ; he wishes
to acquire an estate in possession. If the sale-deed be regard-
ed as a contract to sell in the future then upon the death of the
widow no sale has taken place which could form the foundation
of a suit for pre*emption.



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102



THE OUDH CASE^



[Vol. VII.



Bhairon

Bakheh

r.

B«ldeo Singh*



Lastly it was contended i^at as the widow transferred her
interest to Bhairon Bakfash^ and Lalta Singh and Nanrang Singh
transferred their interests to the same person, the case should
be regarded as one in which a widow has transferred her fans-
band's property with the consent of the reversioners, and that a
good title passed at once to Bhairon Bakhsh and a right of
pre-emption accrned. As to this it is sufficient to say that if
the contention is well founded art. 10 of sch. ii of the Indian
Limitation Act applies to the case and the suit is barred by
Kmitatton, whether time is calculated from the date of the deed
executed by the widow or from the date of the deed executed
by Lalta Singh and Naurang Singh.

In the view which I take of this case it is unnecessary to
consider the possibility of applying art. 120 of sch. ii of the
Limitation Act to the case. It is also unnecessary to consider
the soundness of the decision in Select Case No. 271.

I would allow the q>peal, set aside the decrees of the
Courts below and dismiss the plaintifiE's suit with costs in all
three Courts.

Scott, J. C— I am of ihe same opinion and would make
tiie same order.



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Vol. VII.] THE OUDH CASES. 103

FIfiST CIVIL APPEAL, No. 90 OF 1903.*



Before Mr* Chamier.



BiSHUN Datt (Defendant) v. G-. L. Pbbfbct (Plaintif). i^^^

— Feb. 8.

Patent^ infringement of^Injunctum^ to restrain infringe^
ment of patent.



Tke plaintiff, a patentee of tt cane^anisbing mill, brooght a suit for an in-
junction to restrain infringement of his patent by the defendant. The defendant
contested the suit bat the District Judge granted the injunction. Before the
appellate Court the defendant admitted the yididity of the patent and that he
had infringed it and undertook not to Infringe it again.

ffddf that as there was a dMger of future intringeBteBit an nndcrtaking
was not sufficient and the plaintiff was entitled to the injunction granted by the
Court.



Fob Appuoant.— Mr. F. 0. O'Neilh
Fob Rsspokdint. — Mr. J. M. Jackson.

CfiAMUB, A. J. C. — ^This id an appeal by th^ defendaai
against a decree of the District Jadge of Fjaabad granting an
injunction in a suit by a patentee of a cane-emshing mill for